Manurojan Yadav v. State of U P and 3 Others

Allahabad HC7 Oct 2020CRLP/5505/2020

Case brief

AI extract

What is this about?

FIR quashing writ petition; facebook post on Maharana Pratap (Kshatriya vs Marwadi); Section 66 Information Technology Act; Section 43 computer damage clauses inapplicable; Section 505(2) IPC promoting enmity/hatred/ill-will between communities; mens rea essential element; Article 19(1)(a) freedom of speech and expression protects opinion on historical fact; reasonable man / Clapham omnibus standard; Manzar Sayed Khan (2007) 5 SCC 1; Ramesh (1988) 1 SCC 668; Bhagwati Charan Shukla AIR 1947 Nag 1; P.S. Badhalganj, Gorakhpur; Case Crime No.0137/2020; decided 7.10.2020; Pankaj Naqvi and Vivek Agarwal, JJ.

What did the court decide?

Quashing of the FIR dated 15.5.2020 registered as Case Crime No.0137/2020, under Section 66 of the Information Technology (Amendment) Act, 2008 (Act 21 of 2000) & 505 IPC, P.S. Badhalganj, Gorakhpur. ¶¶36

Manurojan Yadav Vs State of U P and 3 Others — Allahabad HC (2020) — LawSathi Research

What the court decided

AI extract

Outcome

Quashing of the FIR dated 15.5.2020 registered as Case Crime No.0137/2020, under Section 66 of the Information Technology (Amendment) Act, 2008 (Act 21 of 2000) & 505 IPC, P.S. Badhalganj, Gorakhpur.

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Issue for consideration

Whether the petitioner's facebook post attracts Section 66 of the I.T. Act, 2000 (punishment for computer related offences by reference to the Section 43 acts). +1 more

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Court's answer

No offence under Section 66 of the I.T. Act is made out: the overt act attributed to the petitioner (publication of a facebook post) does not relate to any of the clauses of Section 43, which concern damage to the computer system; the learned AGA does not dispute this position.

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Ratio / Principle

Opinion about a historical fact is a matter of perception; a discordant view per se would not attract Section 505(2) IPC, being saved by Article 19(1)(a) of the Constitution (fundamental right of freedom of speech and expression).

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Key takeaways

The post sharing the author's perception whether Maharana Pratap fell in the Kshatriya or Marwadi class was not intended to create or promote feelings of enmity, hatred or ill-will between two different groups; mens rea, an important element of Section 505(2) IPC, is lacking; the provision is not meant to be invoked on the basis of the sentiments of a weak/sensitive person.ratio¶¶34
In the light of the foregoing discussion, the court's considered view is that neither any offence under Section 66 of the I.T. Act nor under Section 505(2) IPC is made out.ratio¶¶35

Detailed headnote1 paragraphs

Writ petition allowed; FIR dated 15.5.2020 in Case Crime No.0137/2020 (Section 66 of the Information Technology (Amendment) Act, 2008 (Act 21 of 2000) & 505 IPC), P.S. Badhalganj, Gorakhpur, quashed. The petitioner's facebook post opining whether Maharana Pratap was a Kshatriya or a Marwadi was held to constitute no offence: (i) no offence under Section 66, I.T. Act, 2000 lies because the overt act of publishing a post falls within none of the clauses of Section 43 (penalty/compensation for damage to computer systems), a position the learned AGA did not dispute; (ii) no offence under Section 505(2) IPC lies because a discordant opinion on a historical fact is a matter of perception, lacks the requisite mens rea, and is saved by Article 19(1)(a); Section 505(2) IPC is not to be invoked on the sentiments of a weak/sensitive person, the touchstone being the reasonable man ('the man on the top of a Clapham omnibus'). Relied on Manzar Sayed Khan (2007) 5 SCC 1, Ramesh (1988) 1 SCC 668 and Bhagwati Charan Shukla AIR 1947 Nag 1.

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Court No. - 43

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Criminal Misc. Writ Petition No. 5505/2020

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Petitioner :- Manurojan Yadav
Respondent :- State of U.P. and others
Counsel for Petitioner :- Ravindra Kumar Yadav, Sheo Ram Singh
Counsel for Respondent :-Deepak Mishra, A.G.A.

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Hon'ble Pankaj Naqvi, J. Hon'ble Vivek Agarwal, J.

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Heard Sri Ravindra Kumar Yadav, learned counsel for the petitioner and Sri Deepak Mishra, the learned AGA.

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This writ petition has been filed with a prayer to quash the FIR dated 15.5.2020 registered as Case Crime No.0137/2020, under Section 66 of the Information Technology (Amendment) Act, 2008 (Act 21 of 2000) & 505 IPC, P.S. Badhalganj, Gorakhpur.

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We deem service to be sufficient on respondent no. 4 in view of office report dated 5.8.2020, 11/14.9.2020 but no one appeared on his behalf.

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The FIR alleged that the informant, a “Kshatriya” by caste, was aggrieved with the publication of a post on facebook account of the petitioner which the informant found to be objectionable as the same was posted with a view to spread disharmony at the instance of Samajwadi Party leaders as also the Chairman of Zila Panchayat.

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The screen shot generated by the petitioner on his facebook account reads as under:

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“Marwadi Raja Maharana Pratap ko purane itihaskar IT Cell ne Rajpoot Kshatri batakar itihas me maarwadiyo ke sath anyay kiya”

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Section 66 of the I.T. Act, 2000 relates to punishment for computer related offence which provides that if any person dishonestly or fraudulently does any act referred to in Section 43, he shall be punishable with imprisonment upto 3 years or with fine which may extend up to Rs.5 lacs.

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Section 43 of the I.T. Act is contained in Chapter – which relates to penalty, compensation and adjudication. Section 43 is extracted hereunder:-

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43. Penalty and compensation for damage to computer, computer system, etc.

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If any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network,-

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(a) accesses or secures access to such computer, computer system or computer network;

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(b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium;

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(c) introduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network;

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(d) damages or causes to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network;

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(e) disrupts or causes disruption of any computer, computer system or computer network;

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(f) denies or causes the denial of access to any person authorised to access any computer, computer system or computer network by any means;

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(g) provides any assistance to any person to

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facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made thereunder;

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(h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system, or computer network,

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(i) destroys, deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means;

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(j) steals, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage;

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The overt act attributed to the petitioner does not relate to any of the clauses of Section 43 as the same relates to damage to the computer system. The learned AGA too does not dispute the above position. Thus, no offence under Section 66 of the I.T. Act is made out.

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The Apex Court in Manzar Sayed Khan vs. State of Maharashtra and another, (2007) 5 SCC 1 held that to attract Section 505(2) IPC, there must be reference to two communities between whom feeling of enmity/hatred/ill-will, is sought to be generated. The Apex Court in Ramesh vs. Union of India (1988) 1 SCC 668 approved the observation of Vivian Bose, J in Bhagwati Charan Shukla vs Provincial Govt., AIR 1947 Nag 1 , which is as under:-

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“the effect of the words must be judged from the standards of reasonable, strond-minded, firm and courageous men, and not those of weak and vaillating minds, nor of these who scent danger in every hostile point of view.. It is the standard of ordinary reasonable man or as they say in English law 'the man on the top of a Clapham omnibus'.”

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Words spoken or written must be with intent to create / promote or likely to create / promote feelings of enmity, hatred or ill-will between two factions separated by religion / caste / language / region / communities. Opinion about a historical fact could be a matter of perceptions. Two historians may not be on the same page on a historical event. A discordant view per se would not attract the offence under Section 505(2) IPC as the same would be saved by Article 19(1)(a) of the Constitution i.e. fundamental right of freedom of speech and expression.

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The author of the post is only sharing his perception as to in which class would Mahrana Pratap fall i.e. as a Kshatriya or a Marwadi. We do not find that the statement was intended to create or promote feelings of enmity, hatred or ill-will between two different groups. Mens rea is an important element of this provision which is lacking. The statement is not of such category / character which could create feeling of enmity, hatred or ill-will in the mind of a reasonable man. This provision is not meant to be invoked on the basis of sentiments of a weak / sensitive person.

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We in the light of above discussion, are of the considered view that neither any offence under Section 66 of the I.T. Act nor under Section 505(2) IPC is made out.

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The writ petition is allowed. The FIR dated 15.5.2020 registered as Case Crime No.0137/2020, under Section 66 of the Information Technology (Amendment) Act, 2008 (Act 21 of 2000) & 505 IPC, P.S. Badhalganj, Gorakhpur stands quashed. Order Date:- 7.10.2020 Chandra

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(Vivek Agarwal, J) (Pankaj Naqvi, J)

Manurojan Yadav v. State of U P and 3 Others

Case brief

What is this about?

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Manurojan Yadav v. State of U P and 3 Others

Case brief

What is this about?

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