# Mohammad Zubair v. State of U.P. & Ors

- **Citation:** (2025) 5 ILRA 224
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-22
- **Case number:** Criminal Misc. Writ Petition No. 21016 of 2024
- **Bench:** Siddhartha Varma, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-zubair-v-state-of-u-p-ors-53346
- **Pages:** 21

## Headnote

Criminal Law - Constitution of India,1950
- Article 19(1)(a), 19(2), 21 & 226 -
Bhartiya Nyaya Sanhita (BNS) - Sections
132, 132(1), 221, 152, 191(2), 193(3),
196, 221, 228, 298, 299, 302, 351, 351(2),
353 & 356(3) - - The Information
Technology Act, 2000 - Sections 66 - Writ
Petition - seeks to quash FIR - alleging that
petitioner's tweets, including a video, incited
violence and led to an attack on Dasna Devi
Temple - plea taken that FIR is a misuse of law
aimed at curbing dissent, asserting that tweets
are protected under Article 19(1)(a) and lacked
any intent to provoke rebellion or separatism -
Section
152
BNS
added
without
proper
investigation - St.'s counsel opposed plea,
contending that petitioner's influential tweets
incited subversive activities and endangered
national integrity, thereby attracting restrictions
under Article 19(2) - St. insists FIR involves
serious allegations and cannot be quashed in
part - Court finds that - (i) India is a country with
diverse religions, tribes and races, and tweets
made by petitioner, if misunderstood by any
section of society, could potentially affect public
harmony, - (ii) the "test of fire in a crowded
theatre" is not applicable in the present case, - (iii)
while Section 152 BNS serves as a safeguard for
the
St.
against
seditious
activity,
whether
petitioner's St.ments excited secession, armed
rebellion or encouraged separatist sentiments is a
matter to be determined through investigation, -
(iv) investigating agencies are best equipped to
examine the allegations and the truth is yet to
emerge, - (v) interim protection granted earlier
was not misused by petitioner - Court held - a
false implication may prejudice rights guaranteed
under Article 21, hence, refrains from interfering at
this stage - direction issued to continue
investigation in the instant case, with protection
that petitioner shall not be arrested or harassed in
any manner pursuant to the FIR, till conclusion of
investigation, subject to full cooperation - writ
petition disposed of with further directions that
petitioner shall remain available for investigation
and shall not leave the country. (Para - 44, 45, 46,
49, 50, 52, 53, 55)

Writ Petition Allowed. (E-11)

List of Cases cited:

## Text

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224 INDIAN LAW REPORTS ALLAHABAD SERIES
which has been forwarded by the police
after due investigation be also quashed.
Still further, we are of the view that even
the gang-chart, which was prepared without
any due discussion and without any
application of mind, deserves to be quashed
and, therefore, the gang-chart which is
made the basis of the first information
report is also quashed.

22.
The
writ
petition
stands
allowed.
----------
(2025) 5 ILRA 224
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.05.2025

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Criminal Misc. Writ Petition No. 21016 of 2024

Mohammad Zubair ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Devaang Savla, Rajrshi Gupta, Tanmay
Sadh

Counsel for the Respondents:
Kapil Tyagi

Criminal Law - Constitution of India,1950
- Article 19(1)(a), 19(2), 21 & 226 -
Bhartiya Nyaya Sanhita (BNS) - Sections
132, 132(1), 221, 152, 191(2), 193(3),
196, 221, 228, 298, 299, 302, 351, 351(2),
353 & 356(3) - - The Information
Technology Act, 2000 - Sections 66 - Writ
Petition - seeks to quash FIR - alleging that
petitioner's tweets, including a video, incited
violence and led to an attack on Dasna Devi
Temple - plea taken that FIR is a misuse of law
aimed at curbing dissent, asserting that tweets
are protected under Article 19(1)(a) and lacked
any intent to provoke rebellion or separatism -
Section
152
BNS
added
without
proper
investigation - St.'s counsel opposed plea,
contending that petitioner's influential tweets
incited subversive activities and endangered
national integrity, thereby attracting restrictions
under Article 19(2) - St. insists FIR involves
serious allegations and cannot be quashed in
part - Court finds that - (i) India is a country with
diverse religions, tribes and races, and tweets
made by petitioner, if misunderstood by any
section of society, could potentially affect public
harmony, - (ii) the "test of fire in a crowded
theatre" is not applicable in the present case, - (iii)
while Section 152 BNS serves as a safeguard for
the
St.
against
seditious
activity,
whether
petitioner's St.ments excited secession, armed
rebellion or encouraged separatist sentiments is a
matter to be determined through investigation, -
(iv) investigating agencies are best equipped to
examine the allegations and the truth is yet to
emerge, - (v) interim protection granted earlier
was not misused by petitioner - Court held - a
false implication may prejudice rights guaranteed
under Article 21, hence, refrains from interfering at
this stage - direction issued to continue
investigation in the instant case, with protection
that petitioner shall not be arrested or harassed in
any manner pursuant to the FIR, till conclusion of
investigation, subject to full cooperation - writ
petition disposed of with further directions that
petitioner shall remain available for investigation
and shall not leave the country. (Para - 44, 45, 46,
49, 50, 52, 53, 55)

Writ Petition Allowed. (E-11)

List of Cases cited:

1. Tejender Pal Singh @ Timma Vs St. of Raj.
(S.B.
Criminal
Misc.
(Pet.)
No.5005/2024
decided on 16.12.2024),

2. Javed Ahmad Hajam Vs St. of Mah. & anr.-
(2024) 4 SCC 156,

3. Mohammad Wajid & anr.Vs St. of U.P. & ors.-
2023 SCC Online SC 951,

4. St. of Har. Vs Bhajan Lal, reported in 1992
Supp (1) SCC 335,
5 All. Mohammad Zubair Vs. State of U.P. & Ors.
225
5. Lovely Salhotra Vs St. of NCT Delhi & anr.-
(2018) 12 SCC 391,

6. Ramji Lal Modi Vs St. of U.P. - AIR 1957 SC
620,

7. The St. of U.P. Vs Lalai Singh Yadav - (1976)
4 SCC 213,

8. Anuradha Bhasin Vs U.O.I.& ors.reported in
(2020) 3 SCC 637,

9. Kaushal Kishor Vs St. of U.P. & ors.: (2023) 4
SCC 1,

10. 63 L. Ed. 470: Charles T. Schenck Vs United
St.s of America,

11. 63 L. Ed. 1173 (Jacob Abrams Vs United
St.s),

12. 23 L. Ed. 2d 430 (Clarence Brandenburg Vs
St. of Ohio),

13. Tehseen S. Poonawala Vs U.O.I.& ors.-
(2018) 9 SCC 501,

14. Anuradha Bhasin Vs U.O.I.& ors.- (2020) 3
SCC 637,

15. Amish Devgan Vs U.O.I.& ors.: (2021) 1 SCC 1,

16. Dineshbhai Chandubhai Patel Vs St. of
Gujarat & ors.- (2018) 3 SCC 104,

17. Rafiq Ahmedbhai Paliwala Vs St. of Gujarat
& ors.- (2019) 5 SCC 464,

18. Somjeet Mallick Vs St. of Jharkhand & ors.-
(2024) 10 SCC 527,

19. Vinod Raghuvanshi Vs Ajay Arora & ors.-
(2013) 10 SCC 581,

20. Satvinder Kaur Vs St. Govt. of NCT of Delhi -
(1999) 8 SCC 728,

21. Neeharika Infrastructure Pvt. Ltd. Vs St. of
Mah. & ors., (2021) SCC Online SC 315,

21. Criminal Misc. Writ Petition No. 7463 of 2024
(Shobhit Nehra and Anr. Vs St. of U.P. & 2 Ors.),
22. Hema Mishra Vs St. of U.P. & ors. reported
in (2014) 4 SCC 453.

(Delivered by Hon'ble Siddhartha Varma, J.)

1. Heard Sri Dileep Kumar, learned
Senior Advocate assisted by Sri Tanmay
Sadh, learned counsel for the petitioner and
Sri Manish Goyal, learned Additional
Advocate General assisted by Sri Pankaj
Saxena,
Sri
A.K.
Sand,
learned
Government Advocate. Sri Kapil Tyagi,
learned counsel for the informant was
heard along with Sri Adhitya Srinivasan
who appeared through Video Conference.

2. This writ petition has been filed
with a prayer that the First Information
Report dated 7.10.2024 giving rise to Case
Crime
No.992
of 2024
against
the
petitioner-Mohd. Zubair
lodged under
sections 196, 228, 299, 356(3), 351(2) and
152 of the Bharatiya Nyaya Sanhita, 2023
and under section 66 of the Information
Technology Act be quashed.

3. The brief facts leading to the
lodging of the FIR are that on 3.10.2024,
the petitioner had tweeted certain messages
at 9.30 pm. Thereafter on 4.10.2024 he had
again tweeted at 11 hours and 08 minutes
and thereafter on 5.10.2024 he had again
done so at 12.38 PM. Thereafter and as a
result of the tweets, specifically the one
that was made on 3.10.2024, in the night of
4.10.2024 at Dasna Devi Temple, certain
persons attacked a temple. The FIR was
lodged on 7.10.2024 at 2.19 PM. The FIR
alleged that the co-founder of ALT News
Mohd. Zubair on 3.10.2024 at 9.30 PM had
tweeted and had also uploaded a video of
Yati Narsinghanand Giri and because of the
tweet, certain persons had got provoked. It
has been stated in the FIR that apart from
the above tweets, certain old incidents were
226 INDIAN LAW REPORTS ALLAHABAD SERIES
also mentioned therein. It was stated in the
FIR that the Yati Narsinghanand Giri was
also alleged by the accused of insulting
some political leaders. It had been stated
that in that list, the name of Dr. Udita Tyagi
(first informant) had been included. The
first informant has thereafter stated that
after those tweets, she was receiving life
threatening messages about which she had
also reported earlier. It has thereafter been
stated that Mohd. Zubair did not stop after
the tweeting of messages on 4.10.2024. He
thereafter again tweeted on 5.10.2024 at
11.08 AM. And then again he tweeted on
that very date i.e. on 5.10.2024 at 12.38
PM. In the FIR, it has been stated that the
posts of the accused were a complete thread
of events which also showed the old
speeches of Yati Narsinghanand Giri.
Along with the FIR, the link of the posts
was also attached and a written request was
made to look into those links and to see the
comments which were made by the general
public
who
were
being
provoked.
Thereafter in the FIR it had been mentioned
that on 4.10.2024, certain persons had
attacked the temple. It has been stated that
earlier also the petitioner had tweeted about
one Nupur Sharma and had tried to provoke
the public at large and because of that
provocation eight people had lost their
lives. In the FIR it had been stated that on
4.10.2024, Yati Narsinghanand Giri and the
first informant herself were present in the
temple but they had a narrow escape. In the
end, it was stated that the petitioner was
provoking a certain group of people against
a particular community.

4. Initially the FIR was lodged under
section 196, 228, 299, 356(3) and 351(2) of
the BNS but subsequently after some
investigation, the offences under section 152
BNS and under section 66 of the Information
Technology Act were also added. Then the
petitioner
amended
the
writ
petition
accordingly.

5. When the case was taken up on
18.11.2024, the State had requested the Court
to grant time to file a short counter affidavit to
enable the State to bring on record all the
tweets which were not filed along with the
writ petition. Thereafter on 20.12.2024, the
Investigating Officer filed a short counter
affidavit and had brought on record certain
tweets and had also informed the Court
through the short counter affidavit as to how
many times tweets were also re-posted.

6. Sri Dileep Kumar, learned Senior
Counsel assisted by Sri Tanmay Sadh and Sri
Rajarshi Gupta, learned counsel for the
petitioner submitted that no case under
sections 196, 228, 299, 356(3), 351(2) and 152
BNS and under section 66 of the IT Act was
made out. Learned counsel for the petitioner
has submitted that the lodging of the FIR was
a grave abuse of the process of law and that it
was filed with the sole aim to harass the
petitioner and to intimidate him from
performing his role as a fact checker and also
that of a responsible citizen of the country.

7. Learned counsel for the petitioner
with regard to the explanation to section 152
BNS added that the explanation to section 152
BNS, however, provides that if a person
comments for the purposes of disapprobation
of the measures of the Government, or
comments disapprovingly of administrative or
other actions of the Government with a view
to obtain their alteration by lawful means
without exciting or attempting to excite the
activities referred to in section 152, then there
shall be no offence under this section.

8.
Learned
counsel
for
the
petitioner, for making out a case for the
quashing of the FIR viz.-a-viz. section 152
5 All. Mohammad Zubair Vs. State of U.P. & Ors.
227
BNS, relied heavily upon a judgment of the
Rajasthan High Court in Tejender Pal
Singh @ Timma vs. State of Rajasthan
(S.B. Criminal Misc. (Pet.) No.5005/2024
decided on 16.12.2024) and submitted that
if the tweets referred to in the FIR, which
had been reproduced in the writ petition
and in the short counter affidavit which was
filed by the State on 20.12.2024 are read, it
becomes evident that those tweets would
not constitute any offence punishable under
section 152 of BNS. He submits that the
tweets (alleged acts of the petitioner)
cannot be said to be amounting to exciting
or attempting to excite secession or armed
rebellion. They also could not be said to be
exciting subversive activities. Definitely
they were not encouraging separatist
activities or endangering the sovereignty,
unity and integrity of India. Learned
counsel for the petitioner states that if the
tweets are seen, they were just reproduction
of
certain
speeches
which
Yati
Narsinghanand Giri had delivered on
various dates at various places and that the
petitioner was dissatisfied with the inaction
of the State authorities in taking action
against
Yati
Narsinghanand.
Learned
counsel for the petitioner states that on
3.10.2024, the police itself had lodged an
FIR against Yati Narsinghanand Giri and
the FIR was with regard to the statement
which he had given on 29.9.2024. Learned
counsel for the petitioner has also referred
to another FIR which was lodged on
5.10.2024
against
100-150
unknown
persons who had attacked the temple of
Dasna because of the comments which had
been given by Yati Narsinghanand and if
one goes by that FIR, he submits, it was
evident that the attack had occurred at
Dasna temple because of the irresponsible
statements given by Yati Narsinghanand on
29.9.2024. Even otherwise, learned counsel
for the petitioner submits that if the tweets
as were tweeted by the petitioner are seen,
they do not constitute any offence under
section 152 of BNS.

9.
Learned
counsel
for
the
petitioner further submitted that looking
into the ingredients of the Section 152 of
BNS it becomes abundantly clear that
Section 152 of the BNS is primarily aimed
at protecting the country from onslaughts
of any secessionist who might by his acts
bring about an armed rebellion. The
offence as is to be found under section 152
BNS requires to be curbed viz.-a-viz.
anyone trying to bring about a feeling of
separatism and thereby trying to endanger
the sovereignty, unity and integrity of the
country. Thus it criminalizes all acts of any
individual who might either be trying to
excite or attempting to excite secession or
an armed rebellion. It also criminalizes the
acts of such individuals who might be
trying
to
encourage
the
feeling
of
separatism and putting the sovereignty,
unity and integrity of India into jeopardy
and thereby threatening the country's
stability.

10.
Learned
counsel
for
the
petitioner states that definitely if a person
indulges in an offence which is punishable
under Section 152 of BNS, commits
something very grave. He submits that
therefore the punishment provided is also a
heavy one whereby imprisonment for life is
also possible. He, therefore, submits that a
high threshold of intent (mens rea)
ensuring that only deliberate action with
malicious action would fall within the
ambit of the offence provided under
Section 152 of BNS. He submits that
offence under Section 152 would thus be
such which would be committed purposely
or knowingly. He submits that purposely
done acts would be done knowingly by
228 INDIAN LAW REPORTS ALLAHABAD SERIES
words either spoken or written or by signs
and visible representation.

11.
Learned
counsel
for
the
petitioner states that the Section 152 of
BNS which had no parallel in the IPC is
such a Section which has been brought in
with the intention of maintaining national
integrity and also for discouraging any
onslaughts of separatism.

12.
Learned
counsel
for
the
petitioner submits that however this section
could not be used to settle personal scores.
It is, therefore, thus to protect national
security and cannot be used to subvert
political dissent/criticism etc. Learned
counsel for the petitioner therefore drew
the attention of the Court to the explanation
to Section 152 of BNS which reads as
under:-

"Comments
expressing
disapprobation
of
the
measures,
or
administrative or other action of the
Government with a view to obtain their
alteration by lawful means without exciting
or attempting to excite the activities
referred to in this section."

13. After having elaborated on the
necessity of seeing the intention to commit
the offence under Section 152 of BNS,
learned counsel for the petitioner submitted
that it was important also for the Courts to
see whether when the accused who was
alleged to have committed the offence
under Section 152 of BNS was at all
capable of committing the same. He
submits that a country like India having a
population of more than 142.86 crores
whether would be affected by the singular
and sporadic act of a person trying to excite
secession or armed rebellion. It would also
have to be seen whether that person was
capable of encouraging the feelings of
separatist activities to the extent that the
entire population would get excited and
thereby sovereignty, unity and integrity of
the country would get affected.

14. In the instant case, learned
counsel for the petitioner states that if one
goes by the averments made in paragraph 6
of the short counter affidavit dated
20.12.2024 then the viewership of the
tweets of the petitioner were as follows:

Sl.
No.

Date of Post/Time

Number of viewers

1.
03.10.2024/ 22:40
143.6K
2.
04.10.2024/10:36
536.7K
3.
04.10.2024/10:44
25.4K
4.
04.10.2024/11:21
8520
5.
04.10.2024/12:14
168.8K
6.
04.10.2024/15:16
145.6K
7.
04.10.2024/19:51
38.8K(reposted tweets)
8.
05.10.2024/00:21
49.1K
9.
05.10.2024/11:08
181.2K(reposted
tweets)
10.
05.10.2024/12:38
45.9K(reposted tweets)
11.
06.10.2024/12:48
81.5K(reposted tweets)
12.
06.10.2024/12:59
419.8K(reposted
tweets)

15. Thus, the maximum number of
the reach of the posts appears to be to 536.7
thousands viewers and, therefore, learned
counsel for the petitioner states that if a
person of such meagre followings was
tweeting then it could not, by any means,
be said that he could have any intention of
exciting secession/armed rebellion. He
could also not encourage feeling of
separatism and also thus could not
endanger sovereignty, unity and integrity of
the country.

16. Thereafter learned counsel for
the petitioner relied upon a judgment of the
Supreme Court reported in (2024) 4 SCC
156 : Javed Ahmad Hajam vs. State of
Maharashtra and another and submitted
5 All. Mohammad Zubair Vs. State of U.P. & Ors.
229
that the doings of an offender had also to be
judged considering as to what was the
structure of a country in which he was
trying to commit the offence. He submits
that our country has been a democratic
country for more than 75 years and that our
people know the importance of democratic
values. He further submits that it was not
possible to conclude that tweets as were
made by the petitioner would promote
disharmony in our country or would
weaken the country in any manner. He
submits that the test is a general impact of
utterances on reasonable people who are
significant in number. Merely because a
few people would develop hatred or ill-will
because of the acts of the petitioner
definitely would not make him liable for
the offence under section 152 BNS. It
would not be sufficient to say that the
petitioner had attempted to excite or had
even excited a secession or armed rebellion
in the entire country or even in a part of it.
It also could not be said that he had excited
subversive activities or had encouraged the
feelings of separatism and thus had
endangered the sovereignty, unity and
integrity of the country.

17. Thus, in effect the learned
counsel for the petitioner has tried to
convince the court on four broad issues:-

I. The offence being a grave one,
the intention/mens rea should be looked
into extensively and very high standards
should adopted to fathom its extent.

II. The person who tries to excite
or attempts to excite secession or armed
rebellion purposely or knowingly by words
either spoken or written or by signs or by
virtual representation or by an electronic
communication or by the use of financial
means or otherwise should be such a person
who can effectively encourage feelings of
separatism and thereby endanger the
sovereignty, unity and integrity of the
country.

III. The people amongst whom he
tries to spread his ideas for exciting
secession or armed rebellion or subversive
activities and thereby tries to encourage the
feelings of separatism and ultimately
endangers the sovereignty, unity and
integrity of the country should be such as
people would actually get affected by those
efforts/acts.

IV. In the event there was
approbation intended then no offence under
section 152 BNSS was made out.

18.
Learned
counsel
for
the
petitioner further submits that if a person
who was of no consequence was repeatedly
entering into such activities would also not
mean that he was an offender under Section
152 of BNS.

19. Relying upon a judgment of
Supreme Court in Mohammad Wajid and
another vs. State of U.P. and others
reported in 2023 SCC Online SC 951,
learned counsel for the petitioner states that
when it comes to quashing of first
information
reports
or
criminal
proceedings, criminal antecedents cannot
be the sole consideration to decline the
relief of quashing the criminal proceedings.
An accused has a legitimate right to say
before the Court that howsoever bad his
antecedents may be, if the first information
report fails to disclose the commission of
any offence or his case falls within the
parameters as are laid down in the case of
State of Haryana v. Bhajan Lal, reported
in 1992 Supp (1) SCC 335 then the FIR
compulsorily requires to be quashed. The
parameters given in the above judgment are
being reproduced here as under:-
230 INDIAN LAW REPORTS ALLAHABAD SERIES

"(1) Where the allegations made
in the first information report or the
complaint, even if they are taken at their
face value and accepted in their entirety do
not prima facie constitute any offence or
make out a case against the accused.

(2) Where the allegations in the
first information report and other materials,
if any, accompanying the FIR do not
disclose a cognizable offence, justifying an
investigation by police officers under
Section 156(1) of the Code except under an
order of a Magistrate within the purview of
Section 155(2) of the Code.

(3) Where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of the
same do not disclose the commission of
any offence and make out a case against the
accused.

(4) Where, the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code.

(5) Where the allegations made in
the FIR or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach a
just conclusion that there is sufficient
ground for proceeding against the accused.

 (6) Where there is an express
legal bar engrafted in any of the provisions
of the Code or the concerned Act (under
which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a specific
provision in the Code or the concerned Act,
providing efficacious redress for the
grievance of the aggrieved party.

(7) Where a criminal proceeding
is manifestly attended with mala fide
and/or where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge."

20.
Learned
counsel
for
the
petitioner further relied upon the Article
19(1)(a) of the Constitution of India and
has submitted that the petitioner had the
freedom of speech and expression to tweet
and that no law in the country could
restrain him from exercising his right to
freedom of speech and expression. He
submits that though there were restrictions
which could be enforced but they could not
prevent the petitioner from ventilating his
views.

21.
Learned
counsel
for
the
petitioner in the end vehemently submitted
that even if the tweets which were made
from 3.10.2024 to 6.10.2024 were seen, it
becomes evident that there was no attempt
to excite secession or armed rebellion. He
further submits that there was also no
attempt to excite subversive activities and
no effort was made to encourage feelings of
separatist activities and also the actions
were not such as could be classified to
attempting to endanger sovereignty or unity
and integrity of India. Learned counsel for
the petitioner has taken the Court through
the various tweets and has submitted that
initially the tweets were to the effect that
certain
hateful
speeches
of
Yati
Narsinghanand which had targeted a
particular religion, were being highlighted
and disapprobation of the measures of the
administration and the Government to take
action on that had been expressed. Then, he
had
tweeted
the
speech
of
Yati
Narsinghanand Giri and had reproduced the
video of his in which he had made vile
comments
about
women
in
politics.
Learned counsel for the petitioner further
5 All. Mohammad Zubair Vs. State of U.P. & Ors.
231
states that the followers of the petitioner
had only in continuation of what had been
done by the petitioner made further other
tweets and that they were all asking the
State to take action on those tweets and,
therefore, learned counsel for the petitioner
states that in fact the only effort of the
petitioner and his followers was to see that
Yati Narsinghanand was punished and for
this they had expressed their disapprobation
of
the
measures
taken
by
the
administration.

22.
Learned
counsel
for
the
petitioner further submitted that even
though the police had taken action against
Yati
Narsinghanand
Giri,
they
were
submitting charge sheets only for the
offences which were very mild. He further
states that the kind of statements Yati
Narsinghanand Giri was making required
much more stringent action on the part of
the State and this having not being done by
the State, the petitioner had every right to
make comments expressing disapprobation
of the measures taken by the State.

23. Further, learned counsel for the
petitioner stated that the FIR initially was
lodged under sections 196, 228, 299,
356(3) and 351 of BNS. He submits that
the police authorities without any reason,
thereafter, had added section 152 BNS in
the list of sections. The Investigating
Agencies had hardly done any investigation
till the date when section 152 BNS was
added and on the basis of the contents of
the original FIR, the section 152 BNS was
added subsequently. There was hardly any
investigation done by that date. Learned
counsel for the petitioner further states that
even the reading of the counter affidavit
and the other affidavits filed by the
Investigating Officer does not show that
any further material was there in the
possession of the State to add section 152
of the BNS. He, therefore, submits that
even though the section 152 BNS was
added subsequently, the investigation had
taken place only viz.-a-viz. the contents of
the original FIR and thus learned counsel
for the petitioner very categorically stated
that there was nothing new which came
into the possession of the Investigating
Agencies which made them to add section
152 BNS to the FIR. Learned counsel for
the petitioner also submitted that when the
Court was adjudicating as to whether the
FIR was to be quashed then it was always
open for the Court to either quash the entire
FIR or quash the same in part. Learned
counsel for the petitioner relied upon the
decision of the Supreme Court in (2018)
12 SCC 391 : Lovely Salhotra vs. State of
NCT Delhi & Anr. and submitted that in
that case the FIR was quashed viz.-a-viz. a
few of the petitioners-accused and it was
not so quashed with regard to the other
petitioners-accused. Learned counsel for
the petitioner submitted that applying the
same principle a few of the offences if were
not made out in the FIR could be quashed
and the others which were made out from
the bare reading of the FIR could be
investigated into.

24. Learned Additional Advocate
General for the State has vehemently
opposed the writ petition and he submits
that a bare reading of the tweets made on
3.10.2024,
4.10.2024,
5.10.2024
and
5.10.2024 which were posted by the
petitioner and were thereafter re-posted by
his followers/public at large would go to
indicate that the petitioner was in every
possible manner trying to excite secession
and armed rebellion. He submits that by the
tweets, he was also trying to excite
subversive activities and was therefore
encouraging the feeling of separatism and
232 INDIAN LAW REPORTS ALLAHABAD SERIES
the end result of it all was that he was
endangering the sovereignty, unity and
integrity of the country.

25. Learned Additional Advocate
General further submitted that deliberately
the petitioner was making false statements
that no action was being taken against Yati
Narsinghanand Giri vis-a-vis the first
information reports which were lodged
against him.

26. Learned Additional Advocate
General further submitted that the protest
which was held on 4.10.2024 was not a
result
of
the
speech
which
Yati
Narsinghanand
Giri
had
made
on
29.9.2024, but was a direct result of the
tweets which the petitioner had made on
4.10.2024.

27. Learned Additional Advocate
General states that the petitioner was
having a viewership of his tweets of around
5 lacs and that he was being followed by
around 15 lac people.

28. Learned counsel submitted that
the petitioner was a Co-founder and
Director of Alt-News which was an agency
which checks facts and wrongly the
petitioner was going about saying that no
action
had
been
taken
against
Mahamandaleshwar Yati Narsinghanand
Giri despite the fact that all possible action
had been taken against him.

29. Learned Additional Advocate
General Sri Manish Goyal also has
submitted that the petitioner was a person
who was in the profession of journalism
and he was through his platform ALT
News always trying to find out correctness
of any fact which was mentioned by any
political or public person. He submits that
against the doings of Yati Narsinghanand,
an FIR was lodged on 5.10.2024 under
section 302 BNS. Further under sections
298, 353, 191(2), 193(3), 132, 132(1) and
221 of BNS another FIR was lodged by one
Bhanu Prakash against 100-150 unknown
persons for the offence of raising slogans
against Yati Narsinghanand Giri for having
made objectionable statements. Learned
Additional Advocate General has again
drawn the attention of the Court to the
lodging of the FIR dated 5.10.2024 against
18 named persons and 60-70 unknown
persons for having raised their voices
against the fact that Yati Narsinghanand
Giri
had
made
certain
objectionable
statements. Learned AAG also stated that
there were FIRs lodged specifically against
Yati Narsinghanand on 3.10.2024 by one
Trivendra
Singh
for
having
made
objectionable statements and in effect he
states that there were 24 cases pending
against him and out of the 24 cases, the
police had submitted its charge sheets in 21
cases and Final Reports in two cases and in
one
case
probably,
he
submits,
investigation was still going on. Learned,
AAG
therefore,
submitted
that
the
petitioner, despite the fact that he was a
renowned fact checker, he had not known
the fact that FIRs were also lodged against
Yati Narsinghanand.

30. Learned AAG relying upon the
decision of the Supreme Court in Ramji
Lal Modi vs. State of U.P. reported in
AIR 1957 SC 620, submitted that though
the petitioner had a right to freedom of
speech and expression but he had to
confine it to the restrictions as were
imposed by the State and he submits that
the restrictions were such which if were
observed properly by the petitioner, he
would definitely not make the tweets he
had made. Still further, learned counsel for
5 All. Mohammad Zubair Vs. State of U.P. & Ors.
233
the State relied upon the decision of the
Supreme Court in The State of Uttar
Pradesh vs. Lalai Singh Yadav reported
in (1976) 4 SCC 213 and submitted that the
freedom of speech is something which had
to be exercised considering the restrictions
imposed
by
Article
19(2)
of
the
Constitution of India. Similar, he submits,
was the view taken by the Supreme Court
in Anuradha Bhasin vs. Union of India &
Ors. reported in (2020) 3 SCC 637. To
bring home his point, he specifically relied
upon paragraphs 37, 38, 50, 139 and 140 of
the
judgment
and
they
are
being
reproduced here as under :-

"37. The right provided under
Article 19(1) has certain exceptions, which
empowers the State to impose reasonable
restrictions in appropriate cases. The
ingredients
of
Article
19(2)
of
the
Constitution are that:

a. The action must be sanctioned
by law;

b. The proposed action must be a
reasonable restriction;

c. Such restriction must be in
furtherance of interests of the sovereignty
and integrity of India, the security of the
State, friendly relations with foreign States,
public order, decency or morality or in
relation to contempt of court, defamation or
incitement to an offence.

38. At the outset, the imposition
of restriction is qualified by the term
'reasonable' and is limited to situations
such as interests of the sovereignty,
integrity, security, friendly relations with
the foreign States, public order, decency or
morality or contempt of Court, defamation
or incitement to an offence. Reasonability
of a restriction is used in a qualitative,
quantitative and relative sense.

50. During the Vietnam war, the
US Supreme Court had to deal with the
case of Brandenburg v. Ohio, 395 US 444
(1969), wherein the Court over-ruled
Dennis (supra) and held that the State
cannot punish advocacy of unlawful
conduct, unless it is intended to incite and
is likely to incite 'imminent lawless action'.

139. Although, the Respondents
submitted that this Court cannot sit in
appeal or review the orders passed by the
executive, particularly those pertaining to
law and order situation, the scope of
judicial review with respect to law and
order issues has been settled by this Court.
In State of Karnataka v. Dr. Praveen Bhai
Thogadia, (2004) 4 SCC 684, this Court
observed, specifically in the context of
Section 144, Cr.P.C., as follows:

"6. Courts should not normally
interfere with matters relating to law and
order which is primarily the domain of the
administrative authorities concerned. They
are by and large the best to assess and to
handle the situation depending upon the
peculiar needs and necessities within their
special
knowledge.
......
Therefore,
whenever the authorities concerned in
charge of law and order find that a
person's speeches or actions are likely to
trigger communal antagonism and hatred
resulting in fissiparous tendencies gaining
foothold,
undermining
and
affecting
communal harmony, prohibitory orders
need necessarily to be passed, to effectively
avert such untoward happenings.

7... If they feel that the presence
or participation of any person in the
meeting
or
congregation
would
be
objectionable, for some patent or latent
reasons as well as the past track record of
such happenings in other places involving
such participants, necessary prohibitory
orders can be passed. Quick decisions and
swift
as
well
as
effective
action
necessitated in such cases may not justify
or permit the authorities to give prior
234 INDIAN LAW REPORTS ALLAHABAD SERIES
opportunity or consideration at length of
the pros and cons. The imminent need to
intervene instantly, having regard to the
sensitivity
and
perniciously
perilous
consequences it may result in if not
prevented forthwith, cannot be lost sight of.
The valuable and cherished right of
freedom of expression and speech may at
times have to be subjected to reasonable
subordination to social interests, needs and
necessities to preserve the very core of
democratic life - preservation of public
order and rule of law. At some such grave
situation at least the decision as to the need
and necessity to take prohibitory actions
must be left to the discretion of those
entrusted with the duty of maintaining law
and order, and interposition of courts unless
a concrete case of abuse or exercise of such
sweeping
powers
for
extraneous
considerations by the authority concerned
or that such authority was shown to act at
the behest of those in power, and
interference as a matter of course and as
though adjudicating an appeal, will defeat
the very purpose of legislation and
legislative intent..."
(emphasis supplied)

140. It is true that we do not sit in
appeal, however, the existence of the power of
judicial review is undeniable. We are of the
opinion that it is for the Magistrate and the
State to make an informed judgement about
the likely threat to public peace and law and
order. The State is best placed to make an
assessment of threat to public peace and
tranquillity or law and order. However, the law
requires them to state the material facts for
invoking this power. This will enable judicial
scrutiny and a verification of whether there are
sufficient facts to justify the invocation of this
power."

31. Further, relying upon the
judgment of the Supreme Court in Kaushal
Kishor vs. State of Uttar Pradesh & Ors.
: (2023) 4 SCC 1 submitted that in
paragraph 251 of the judgment it was
observed that every citizen of India must
consciously be restrained in speech and
exercise the right to freedom of speech and
expression under Article 19(1)(a) only in
the sense that it was intended by the
framers of the Constitution. Since, learned
AAG relied heavily upon paragraphs 251,
252 and 253 of the judgment, the same are
being reproduced here as under :-

 "251. Every citizen of India must
consciously be restrained in speech, and
exercise the right to freedom of speech and
expression under Article 19(1)(a) only in
the sense that it was intended by the
Framers
of
the
Constitution,
to
be
exercised. This is the true content of Article
19(1)(a) which does not vest with citizens
unbridled liberty to utter statements which
are vitriolic, derogatory, unwarranted, have
no redeeming purpose and which, in no
way amount to a communication of ideas.
Article 19(1)(a) vests a multi-faceted right,
which protects several species of speech
and expression from interference by the
State. However, it is a no brainer that the
right to freedom of speech and expression,
in a human-rights based democracy does
not protect statements made by a citizen,
which strike at the dignity of a fellow
citizen. Fraternity and equality which lie at
the very base of our constitutional culture
and upon which the superstructure of rights
are built, do not permit such rights to be
employed in a manner so as to attack the
rights of another.

252. Verse 15 of Chapter 17 of
the Srimad Bhagavad Gita describes what
constitutes discipline of speech or "vanmaya tapas":

vuq}sxdja okD;a lR;a fiz;fgra p ;r~ A
5 All. Mohammad Zubair Vs. State of U.P. & Ors.
235

Lok/;k;kH;lua pSo okMu;a ri mP;raAA

Anudvega-karam vakyam satyam priyahitam cha yat

Svadhyayabhyasanam chaiva van-mayam tapa
uchyate

Words that do not cause distress,
are truthful, inoffensive, pleasing and
beneficial, are said to be included within
the discipline of speech, and are likened to
regular recitation of the Vedic scriptures.

253. The discussion presented
hereinabove was with a view to rekindle
some ideas on the content of Article
19(1)(a) of the Constitution and on other
pertinent issues surrounding the right to
free speech guaranteed under the aforesaid
Article. However, as far as the substantial
analysis of Question 1 is concerned, I
respectfully agree with the reasoning and
conclusions proposed by His Lordship,
Ramasubramanian, J."

32.
Learned
AAG
thereafter
submitted that definitely as per Article
19(2) of the Constitution there is a
reasonable restriction on the exercise of the
right conferred by the Constitution to
protect the sovereignty and integrity of the
country. He, therefore, submitted that the
reasonable restriction which the petitioner
ought to have exercised was not so
exercised and, therefore, the writ petition
be dismissed.

33. Learned counsel for the State,
therefore, submitted that if the FIR is
perused, it could definitely be concluded
that the intention/mens rea was there of the
petitioner and, therefore, investigation was
essential. Also, he submitted that whether
the petitioner was a person of influence and
could affect a large community by his
tweets was not to be judged by this Court
and had to be looked into by the
investigating agencies. The investigating
agencies would after looking into all the
tweets/re-tweets and as to how the tweets
had affected the population in general come
to a conclusion whether the petitioner could
effectively
endanger
the
sovereignty,
integrity and unity of the country. Also, he
submitted whether the mettle of the people
amongst whom the effort was made by the
petitioner to spread his ideas for exciting
secession or armed rebellion would be
effective, could be known only after a fullfledged investigation and therefore he
submitted that the writ petition be not
entertained.