# Niyaz Ahmad Khan v. State of U.P. & Anr

- **Citation:** (2022) 3 ILRA 331
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-21
- **Case number:** Application U/S 482 No.28742 of 2021
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/niyaz-ahmad-khan-v-state-of-u-p-anr-48191
- **Pages:** 9

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 - Section
500
-
Punishment
of
Defamation
,
Information
Technology
(Amendment)
Act, 2008 - Section 67 - Punishment for
publishing
or
transmitting
obscene
material in electronic form - power under
Section 482 Cr.P.C. at pre-trial stage
should not be used in a routine manner - it
has to be used sparingly, only in such
appropriate
cases,
where
allegations
made in First Information Report or
charge-sheet and the materials relied in
support of same, on taking their face
value and accepting in their entirety do
not disclose the commission of any
offence against the accused .(Para - 6)

(B) Constitution of India - Right to
freedom of expression - does not confer
upon the citizens the right to speak
without responsibility nor does it grant
unfettered licence for every possible use
of language - High Courts are sentinels of
justice with extraordinary and inherent
power
to
ensure
that
rights
and
reputation of people are duly protected.
(Para - 9)

Allegation in FIR - Morphed photo showing
Hon'ble Prime Minister - shaking hands with
dreaded and wanted terrorist - posted on
Facebook - shared by applicant - another post
(a morphed photograph) - posted showing
Hon'ble Prime Minister and Cabinet Minister -
feeding biscuits to dogs, on whom "Aaj Tak TV",
"Zee TV" and "India TV" was written - shared by
applicant - objectionable photo viral - grounds in
application - relate to disputed question of fact
- charge sheet and summoning order under
challenge .(Para - 6)
332 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD:-Disputed question of facts and defence
of
the
accused
cannot
be
taken
into
consideration at the pre-trial stage, which can
be more appropriately gone into by the trial
court at the appropriate stage. Impugned
criminal proceeding under the facts of the case
cannot be said to be abuse of the process of the
Court. No illegality or material irregularity in the
impugned cognizance/summoning order. Relief
sought
by
applicant
through
the
instant
application refused. Government directed to
take appropriate remedial measures/steps in
order to control and eradicate such proliferating
and booming devastating menace, to stop the
misuse of social media platforms. (Para -
6,7,10)

Application u/s 482 Cr.P.C. disposed of. (E7)

List of Cases cited:-

## Text

3 All. Niyaz Ahmad Khan Vs. State of U.P. & Anr.
331
an appropriate case power under Section
311 Cr.P.C. can be invoked by the trial
Court in order to meet the end of justice,
which
depends
upon
the
facts
and
circumstances of each case.

13. In view of the aforesaid legal
discussions and judgment of Hon?ble the
Apex Court, I am of the opinion that the
order dated 28.10.2021 has been passed by
the learned Additional Sessions Judge,
Court No.42, Shahjahanpur in consonance
with the provisions of Section 311 Cr.P.C.
Summoning the witness Ratipal by the
court below is important whose statement
has already been recorded under Section
161 Cr.P.C. which is part of charge sheet.
The witness Ratipal has to be examined, so
that the court can reach to the truth.

14. In such circumstances, I do not
find any illegality or perversity in the
observations and findings recorded by the
trial court in the impugned order dated
28.10.2021
passed
by
the
learned
Additional Sessions Judge, Court No.42.

15. The instant application lacks merit
and is accordingly dismissed.

16. Let a copy of this order be
conveyed to the concerned Court below
within
two
weeks
for
necessary
compliance.
----------

(2022)03ILR A331
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.02.2022

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Application U/S 482 No.28742 of 2021
Niyaz Ahmad Khan ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Jitendra Kumar Srivastava

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 - Section
500
-
Punishment
of
Defamation
,
Information
Technology
(Amendment)
Act, 2008 - Section 67 - Punishment for
publishing
or
transmitting
obscene
material in electronic form - power under
Section 482 Cr.P.C. at pre-trial stage
should not be used in a routine manner - it
has to be used sparingly, only in such
appropriate
cases,
where
allegations
made in First Information Report or
charge-sheet and the materials relied in
support of same, on taking their face
value and accepting in their entirety do
not disclose the commission of any
offence against the accused .(Para - 6)

(B) Constitution of India - Right to
freedom of expression - does not confer
upon the citizens the right to speak
without responsibility nor does it grant
unfettered licence for every possible use
of language - High Courts are sentinels of
justice with extraordinary and inherent
power
to
ensure
that
rights
and
reputation of people are duly protected.
(Para - 9)

Allegation in FIR - Morphed photo showing
Hon'ble Prime Minister - shaking hands with
dreaded and wanted terrorist - posted on
Facebook - shared by applicant - another post
(a morphed photograph) - posted showing
Hon'ble Prime Minister and Cabinet Minister -
feeding biscuits to dogs, on whom "Aaj Tak TV",
"Zee TV" and "India TV" was written - shared by
applicant - objectionable photo viral - grounds in
application - relate to disputed question of fact
- charge sheet and summoning order under
challenge .(Para - 6)
332 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD:-Disputed question of facts and defence
of
the
accused
cannot
be
taken
into
consideration at the pre-trial stage, which can
be more appropriately gone into by the trial
court at the appropriate stage. Impugned
criminal proceeding under the facts of the case
cannot be said to be abuse of the process of the
Court. No illegality or material irregularity in the
impugned cognizance/summoning order. Relief
sought
by
applicant
through
the
instant
application refused. Government directed to
take appropriate remedial measures/steps in
order to control and eradicate such proliferating
and booming devastating menace, to stop the
misuse of social media platforms. (Para -
6,7,10)

Application u/s 482 Cr.P.C. disposed of. (E7)

List of Cases cited:-

1. Nikhil Racheti Vs St. of Mah., (2006) SCC
Online Bom. 1650

2. Manoj Oswal Vs St. of Mah., (2013) SCC
OnLine Bom 978

3. Ekta Kapoor Vs St. of M.P., (2020) SCC
OnLine MP 4581

4. Chambers Vs Director of Public Prosecutions,
(2013) 1 WLR 1833

(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1- By means of this application under
Section 482 of the Code of Criminal
Procedure, the applicant has invoked the
inherent jurisdiction of this Court for
quashing the charge-sheet dated 27.01.2020
arising out of Case Crime No. 296 of 2019,
cognizance/summoning
order
dated
22.07.2020 and proceedings of Criminal
Case No. 2887 of 2020 (State Vs. Niyaz
Ahmad
Khan),
under
Section
67
Information
Technology
(Amendment)
Act, 2008 and Section 500 IPC, Police
Station Mehndawal, District Sant Kabir
Nagar pending in the court of Additional
Chief Judicial Magistrate, Sant Kabir
Nagar.

2- Heard Mr. Jitendra Kumar
Srivastava,
learned
counsel
for
the
applicant, Mr. Manish Goyal, learned
Senior
Advocate/Additional
Advocate
General, assisted by Mr. Rabindra Kumar
Singh, learned Additional Government
Advocate and Mr. Prashant Kumar Singh,
learned Brief Holder, for the State of
U.P./opposite party no.1 and perused the
record.

3- A succinct recapitulation of the
facts of the case are that on 28.11.2019,
opposite party no. 2, namely, Awadesh
Pandey (Senior Sub Inspector), has lodged
a first information report against the
applicant-Niyaz Ahmad Khan and two
others, namely, Anil Sharma and Akhilesh
Yadav
Samarthak,
which
has
been
registered as Case Crime No. 0296 of 2019,
under Section 67 Information Technology
(Amendment) Act, 2008 and Section 500
IPC at Police Station Mehndawal, District
Sant Kabir Nagar. The contents of the first
information report, which are in Hindi, are
also reproduced as under:-

"vkt fnukad 28-11-19 dks eSa SI vo/ks'k
ik.Ms; e; gejkg gs0dk0 uq:n~nhu [kku o dk0
lanhi pkSgku e; ljdkjh okgu cksysjks
UP58G0214 pkyd jkevpy ds f'kdk;r
izk0i=&59 (fV~oVj) 2019 fnukad uoEcj dh
tkap gsrq Fkkuk gktk ls izLFkku dj lfoZykal lsy
lUr dchj uxj tk dj tkap djk;k x;k
@DURGESH SAURABH }kjk fu;kt vgen
[kku tks izkFkfed fo|ky; leksxj fodk'k {ks=
esgnkoy tuin lUr dchj uxj m0iz0 esa
iz/kkuk/;kid gSA bUgksaus vkradoknh gkfQt lbZn
dh ih,e @NARENDRA MODI th ds lkFk
gkFk feykrs gq, ,oa @AMITSHAH th dh Hkh
QksVks dk vkifRrtud rLohj vius Qsl cqd ls
3 All. Niyaz Ahmad Khan Vs. State of U.P. & Anr.
333
'ks;j fd;k gS tkap ls ik;k x;k fd vfuy 'kekZ
}kjk Qsl cqd ij fnukad 17 vDVwcj 2017 dks
le; 21-46 cts Hkkjr dk Nqik vlyh xn~nkj
dkSu&\ la?k vkSj ch-ts-ih- D;ksa gS ekSu vkte
[kku us tkjh dh QksVks gkfQt lbZn vkSj eksnh
ikfdLrku esa feyrs gq, ns[kks ns'k nzksfg;ksa xn~nkj
dkSu desUV ds lkFk Hkkjr ds iz/kkuea=h ujsUnz
eksnh th dks vkradoknh gkfQt lbZn dks gkFk
feykrs gq, QksVks bfMV fd;k gqvk iksLV Mkyk Fkk
ftldks fu;kt vgen [kku }kjk 24 viSzy 2018
dks le; 19-58 cts 'ks;j fd;k x;k gSA rFkk
nqljh iksLV ftldks vf[kys'k ;kno leFkZd ds
uke ls fnukad 1 vizSy 2018 dks le; 15-23 cts
Mkyk x;k gS ftlesa Hkkjr ds iz/kkuea=h eksnh th
,oa dsUnzh; x`g ea=h vfer 'kkg th dh QksVks gSA
ftlesa nksuksa yksxksa dks dqRrksa dks ftu ij bf.M;k
Vh-oh- vkt rd Vh-oh- th Vh-oh- fy[kk gSA
fcfLdV f[kykrs gq, QksVks 'kki }kjk bfMr dj
n'kkZ;k x;k gSA desUV esa lkjs ns'k dh fefM;k dk
gky dqN ,slk gh gks x;k gS fy[kk x;k gS
ftldks fu;kt vgen [kku mijksDr }kjk fnukad
5 vizSy 2018 dks le; 15-54 cts viuh vkbZMh
ij 'ks;j fd;k x;k gSA Hkkjr ds iz/kkuea=h tSls
lEekfur inksa ij vklhu O;fDr;ksa ds mij bl
izdkj dk vkifRrtud QksVks ,oa viekfur
fVIi.kh 'ks;j djuk vUrxZr /kkjk 67 vkbZ-Vh- ,DV
o 500 Hkk0n0fo0 dk n.Muh; vijk/k gSA vr% HM
dks funsZf'kr fd;k tkrk gS fd mDr ds lEcU/k esa
vfHk;ksx iathd`r djsaA"

The Investigating Officer after
investigation submitted charge-sheet on
27.01.2020 against the applicant, on which
the learned Additional Chief Judicial
Magistrate,
Sant
Kabir
Nagar
took
cognizance on 22.07.2020 and summoned
the applicant to face trial under Section 67
Information
Technology
(Amendment)
Act, 2008 and Section 500 IPC. The said
charge-sheet and summoning order are the
subject matter of challenge in the present
application.

4- The main substratum of argument
of learned counsel for the applicant is that
during the investigation, Inspector Incharge, Police Station Dharamsinghwa,
District Sant Kabir Nagar submitted a
surveillance
report
dated
13.01.2020
mentioning that on account of nonavailability of Uniform Resource Locator
(URL) of ID, it is not possible to trace the
details of unknown person, who made the
objectionable photo viral. As per the
prosecution case, the applicant has only
shared the objectionable posts in question.
Charge-sheet has been submitted against
the applicant without proper investigation.
Lastly, it is submitted that the applicant has
been falsely implicated in this case,
therefore, aforesaid impugned charge-sheet
and summoning order against the applicant
is liable to be quashed.

5- Per contra, Mr. Manish Goyal,
learned
Senior
Advocate/
Additional
Advocate General for the State of U.P.
vehemently opposed and refuting the
submissions advanced on behalf of the
applicant submitted that:-

(5.1)-

The
applicant-Niyaz
Ahmad Khan is Headmaster, at Primary
School, Samogar Development Area, Sant
Kabir Nagar, Uttar Pradesh.

(5.2)- On 17.10.2017 at 21:46
hours, Anil Sharma posted a morphed
photo on Facebook which showed the
Hon'ble Prime Minister Narendra Modi
shaking hands with dreaded and wanted
terrorist Hafiz Saeed. The following
comments were added to the photograph-
**Hkkjr dk Nqik vlyh xn~nkj dkSu&\**]**la?k vkSj
ch-ts-ih- D;ksa gS ekSu**] **vkte [kku us tkjh dh
QksVks**] **gkfQt lbZn vkSj eksnh ikfdLrku esa
feyrs gq, ns[kks**] **ns'k nzksfg;ksa xn~nkj dkSu**-

(5.3)-
The
applicant,
Niyaz
Ahmad Khan, shared the post on 24.04.2018
334 INDIAN LAW REPORTS ALLAHABAD SERIES
at 19:58 hours. Another post (a photograph),
in the name of the supporter of Akhilesh
Yadav, was posted on 01.04.2018 at 15:23
hours. This photograph was also morphed,
and it showed Hon'ble Prime Minister
Narendra Modi ji and Cabinet Minister Amit
Shah Ji are feeding biscuits to dogs, on
whom "Aaj Tak TV", "Zee TV" and "India
TV" was written. The following comment
was added to the photograph, **lkjs ns'k dh
ehfM;k dk gky dqN ,slk gh gks x;k gS**. The
applicant-Niyaz Ahmad Khan shared this
post on 05.04.2018 at 15:54 hours on his
Facebook ID.

(5.4)- the act of sharing such
objectionable contents (morphed photo)
regarding
people
holding
esteemed
positions like that of Prime Minister or a
Cabinet Minister was deliberate and is an
offence under Section 67 of Information
Technology Act, 2000 and Section 500 of
IPC, 1860.

(5.5)- upon perusal of F.I.R. and
the allegations made therein as well as
material against the applicant, as per
prosecution case, the cognizable offence
against the applicant is made out. The
criminal proceedings against the applicant
cannot said to be abuse of the process of
the Court. Hence, this application is liable
to be dismissed. Mr. Manish Goyal, learned
Additional Advocate General in support of
his submissions, placed reliance on the
following judgments, which are quoted
herein below :-

(i) Nikhil Racheti Vs. State of
Maharastra, (2006) SCC Online Bom.
1650. The relevant para is reproduced
herein below :-

"9.
While
considering
the
ingredients of Section 67 of the Information
Technology Act, 2000, it can be said mat
firstly there must be a publication or
transmission of any material in the
electronic form. Secondly, such material
must be lascivious or appeals to the
prurient interest. Thirdly such transmission
and publication must be such as to tend to
deprave and corrupt persons, who are
likely to read, see or hear the matter
contained
or
embodied
in
it
While
considering the terms ''publication' and
''transmission', it is to be established that
the person charged with the offence, must
have
published
or
transmitted
such
material. The material, will include written
material as well as the pictures, including
photographs, cartoons and or drawn
material.
The
nature
of
material,
lascivious, however, needs to be taken into
consideration as opposed to the standards
of the decency. So far as the obscenity is
concerned, such publication of material in
the electronic form, will not cover only the
internet, but also storage on floppy/CD and
distribution thereof. In the internet, who is
publisher assumes importance and is also
complex. So far as Publication through
print media is concerned it is easy to see in
the index page, where the name and the
address of the publisher and the editor is
required to be given in accordance with the
provisions of law."
(ii) Manoj Oswal v. State of Maharashtra,
(2013) SCC OnLine Bom 978. The
relevant paras of the judgment are
reproduced herein below :-

"The freedom of speech and
expression is not absolute, but subject to
some restrictions. That freedom is subject
to reasonable restrictions and anything that
is indecent or contemptuous or defamatory
cannot be said to be covered in this right or
freedom, is too well settled to require any
reference to either the Indian Constitution
3 All. Niyaz Ahmad Khan Vs. State of U.P. & Anr.
335
or any case law. It is settled principle that
just as every citizen is guaranteed freedom
of speech and expression, every citizen also
has a right to protect his reputation, which
is regarded as a property. Hence, nobody
can so use his freedom of speech and
expression
as
to
injure
another's
reputation. In the context of right to seek
information or right to publish or circulate
the views in periodicals, magazines,
journals or through electronic media, what
has been held is that this freedom must,
however, be exercised with circumspection
and care must be taken not to trench on the
rights of other citizens or to jeopardise
public
interest.
(See
Life
Insurance
Corporation of India v. Manubhai D. Shah
(1992) 3 SCC 637)."

39. In the above circumstances, we
do not find that the present act of the
Petitioner as termed by him is merely causing
inconvenience and therefore, he is sought to
be proceeded against. It is only a false
information which causes inconvenience and
if it is sent persistently and not otherwise.
That is the offence. Such construction of the
provision in question would avoid any person
sending the messages being hauled up and
punished unnecessarily as apprehended by
the Petitioner. Ultimately, whether any
offence within the meaning of this section has
been committed or not will depend upon the
facts and circumstances in each case.
Whether the allegations in the complaint are
proved beyond reasonable doubt will depend
upon the evidence led by parties. It is open
for the Trial Court to arrive at an
independent conclusion in each case as to
whether the charge is proved by satisfying
itself that the essential ingredients of the
section are established or not.

40. As a result of the above
discussion and when we find that there is
no material which would vitiate the
registration of the First Information Report
in this case nor can it be said to be lacking
in
particulars
or
vague,
then,
our
discretionary and equitable jurisdiction
under Article 226 of the Constitution of
India r/w Section 482 of the Code of
Criminal Procedure, 1973 cannot be
invoked by the Petitioner. The Petitioner
cannot request us to interfere in our such
jurisdiction merely because in his opinion
the First Information Report is delayed.
That is a plea which the Petitioner can
raise at appropriate stage and during the
trial. Therefore, such general and vague
plea need not detain us.

(iii) Ekta Kapoor v. State of
M.P., (2020) SCC OnLine MP 4581. The
relevant paras are reproduced herein
below :-

35. Before dwelling on the
applicability of Section 294 of Penal Code,
1860, it would be appropriate to first
consider as to whether provisions of
Section 67 of Information Technology Act
are attracted or not because Section 294
IPC talks of obscene acts etc and concept
of obscenity figures in Section 292 of Penal
Code, 1860 and Section 67 of Information
Technology Act is based on the same
principle as Section 292 of Penal Code,
1860. The Hon'ble Apex Court in the case
of Sharat Babu Digumarti v. Government
of Delhi (NCT), (2017) 2 SCC 18 has held
that Information Technology Act, 2000,
being a special legislation dealing with
obscenity in electronic form has overriding
effect on the proceedings under general
provisions of Section 292 of Penal Code,
1860 and an activity emanating from
electronic form which may be obscene is
exclusively punishable under Section 67 of
Information Technology Act and not under
336 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 292 of Penal Code, 1860, nor both
under
Section
67
of
Information
Technology Act and Section 292 of Penal
Code, 1860.

54. The aforesaid concept is
importable while interpreting Section 67 of
Information Technology Act, 2000. In the
aforesaid provision, there are no such
words that the person who publishes or
transmits or caused to be published or
transmitted in the electronic form any
lascivious material or such material which
appeals to prurient interest was having or
supposed to be having the knowledge about
the content of the material. Thus, even if
the content is not known and a person
publishes or transmits or caused to do so
even without knowledge, provisions of
Section 67 of Information Technology Act,
2000, would be attracted. Presumption of
knowledge on the part of petitioner shall
have to be assumed and onus will be upon
the petitioner to rebut such presumption by
leading evidence.

60.
Reverting
back
to
the
consideration regarding applicability of
Section 67 of I.T. Act, the prosecution
should be able to show that the material
which is published or transmitted in
electronic form "is lascivious or appeals to
the prurient interest or if its effect is such
as tend to deprave and corrupt persons
who are likely having regard to all relevant
circumstances, to read, see or hear the
matter content or embodied in it......". As
already
seen,
the
aforesaid
words
contained in Section 67 of I.T. Act are
imported from Section 292 of IPC, which
deals with obscenity.

91. Regarding such disclaimer
and the terms of use preventing the
subscriber
from
complaining do not
insulate the petitioner from action against
her if the material itself invokes application
of Section 67 of Information Technology
Act, 2000. Section 67 of Information
Technology Act is a cognizable offence and
no condition such as disclaimer etc can
prevent a person from lodging the FIR. in
respect of such offence. In Ranjit D.
Udeshi's case (supra), it has been observed
by Hon'ble Apex Court that the offence of
obscenity involves strict liability and once
the material is primafacie considered to be
obscene, there can be no escape from the
liability.

96. Thus, at this stage it cannot
be stated that provisions of Section 67 of IT
Act arc not attracted. Regarding Section
67-A of IT Act also, one has to decide as to
what is the true meaning of sexually
explicit acts i.e. whether a graphic
depiction would only constitute "explicit
Act" or whether a simulated act of
copulation may also result in invoking this
provision.

110. After due consideration in
view of the aforesaid discussions, it
appears that the facts of the case are not
such that this court may exercise its
extraordinary powers under Section 482 of
Cr.P.C. for quashing the FIR atleast in
respect of Section 67, 67-A of I.T. Act and
Section 294 of IPC. Although, it would be
fair enough to state that provision of
Section 298 of IPC and the provision of the
State Emblem Act are not found to have
been breached.

(iv) On the issue of impact of
twitter handle, Mr. Manish Goyal, learned
Senior Advocate cited the judgment of
Queen's Bench Division in the case of
Chambers
Vs.
Director
of
Public
Prosecutions, [(2013) 1 WLR 1833]. The
3 All. Niyaz Ahmad Khan Vs. State of U.P. & Anr.
337
relevant observations made therein are as
under :-

"Following an alert on the
internet
social
network,
Twitter,
the
defendant became aware that, due to
adverse weather conditions, an airport
from which he was due to travel nine days
later was closed. He responded by posting
several ''tweets' on Twitter in his own
name, including the following: ''Crap!
Robin Hood Airport is closed. You have got
a week and a bit to get your shit together
otherwise I am blowing the airport sky
high!!' None of the defendant's ''followers'
who read the posting was alarmed by it at
the time. Some five days after its posting
the defendant's tweet was read by the duty
manager responsible for security at the
airport on a general internet search for
tweets relating to the airport. Though not
believed to be a credible threat the matter
was reported to the police. In interview the
defendant asserted that the tweet was a
joke and not intended to be menacing. The
defendant was charged with sending by a
public electronic communications network
a message of a menacing character
contrary to Section 127(1)(a) of the
Communications
Act,
2003.
He
was
convicted in a Magistrates' Court and, on
appeal, the Crown Court upheld the
conviction, being satisfied that the message
was ''menacing per se' and that the
defendant was, at the very least, aware that
his message was of a menacing character."

6- Considering the merit of this case, I
find that as per allegations levelled in the
F.I.R. on 17.10.2017 at 21:46 hours, a
morphed photo showing Hon'ble Prime
Minister Narendra Modi shaking hands
with dreaded and wanted terrorist Hafiz
Saeed was posted on Facebook in the name
of Anil Sharma and said objectionable post
in question was shared by the applicant
Niyaz Ahmad Khan on 24.04.2018 at 19:58
hours. Similarly, another post (a morphed
photograph), in the name of the supporter
of Akhilesh Yadav, which was posted on
01.04.2018 at 15:23 hours showing Hon'ble
Prime Minister Narendra Modi and Cabinet
Minister Amit Shah are feeding biscuits to
dogs, on whom "Aaj Tak TV", "Zee TV"
and "India TV" was written was also shared
by the applicant- Niyaz Ahmad Khan on
05.04.2018 at 15:54 hours on his Facebook
ID. The grounds taken in the application
reveal that many of them relate to disputed
question of fact. This Court is of the view
that at the stage of summoning the accused,
the court below is not required to go into
the merit and demerit of the case.
Genuineness or otherwise of the allegations
cannot be even determined at the stage of
summoning the accused. The appreciation
of evidence is a function of the trial court.
This Court in exercise of power under
Section 482 Cr.P.C. cannot assume such
jurisdiction and put an end to the process of
trial provided under the law. It is also
settled by the Apex Court in catena of
judgments that the power under Section
482 Cr.P.C. at pre-trial stage should not be
used in a routine manner but it has to be
used sparingly, only in such appropriate
cases, where allegations made in First
Information Report or charge-sheet and the
materials relied in support of same, on
taking their face value and accepting in
their
entirety
do
not
disclose
the
commission of any offence against the
accused. The disputed question of facts and
defence of the accused cannot be taken into
consideration at this pre-trial stage, which
can be more appropriately gone into by the
trial court at the appropriate stage.

7- This Court does not find this case
falling in the categories as recognized by
338 INDIAN LAW REPORTS ALLAHABAD SERIES
the Apex Court for quashing the criminal
proceeding of the trial court at pre-trial
stage. Considering the facts, circumstances
and nature of allegations against the
applicant in this case, the cognizable
offence is made out. At this stage, only
prima facie satisfaction of the Court about
the existence of sufficient ground to
proceed in the matter is required. The
impugned criminal proceeding under the
facts of this case cannot be said to be abuse
of the process of the Court. There is no
good ground to invoke inherent power
under Section 482 Cr.P.C. by this Court.

8- I find no illegality or material
irregularity
in
the
impugned
cognizance/summoning
order
dated
22.07.2020 to intervene. Consequently, the
relief as sought by the applicant through the
instant application is hereby refused.

9- Having examined the matter in
its entirety, here it would be apposite to
mention that this Court is of the view
that it is beyond the shadow of doubt
that social media is a global platform
for exchange of thoughts, opinions and
ideas. The internet and social media has
become an important tool through
which individuals can exercise their
right to freedom of expression but the
right to freedom of expression comes
with
its
own
set
of
special
responsibilities and duties. It does not
confer upon the citizens the right to
speak without responsibility nor does it
grant
unfettered
licence
for
every
possible use of language. There is an
immediate
need
to
check
the
exploitation of social media platforms
that
has
political
and
societal
reverberations that go well beyond
hacked systems and stolen identities.
Use of Cyberspace by some people to
vent out their anger and frustration by
travestying the Prime Minister, Keyfigures holding the highest office in the
country or any other individual is
abhorrent and violates the right to
reputation of others. These kind of acts,
posting and sharing unhealthy materials
with
unparliamentary
language
and
remarks, etc. on social media without
any solid basis cause a deleterious
effect on the society at large, ergo in
order to protect the reputation and
character of individuals, it should be
completely
stopped.
Since
such
incidents are on rise in a civilized
society day by day and are polluting the
minds of people, therefore, now it is
high time to evolve some more and full
proof screening mechanism to regulate,
check and control the unhealthy posts
on social media. It would be fair
enough to state that such persons who
are deliberately involved in such acts
directly or behind the curtain with
oblique motive or to settle their score
adopting different modus-operandi are
hazardous to the civilized society and
they are not entitled for any sympathy
in justice delivery system. High Courts
are
sentinels
of
justice
with
extraordinary and inherent power to
ensure that rights and reputation of
people are duly protected. Considering
the gravity and nature of offence as
well
as
misuse
of
social
media
platforms, this Court cannot shut its
eyes. The Government is also not
expected to act as a silent spectator.

10- Accordingly, Government is
directed to take appropriate remedial
measures/steps in order to control and
eradicate
such
proliferating
and
booming devastating menace, to stop
the misuse of social media platforms
3 All. Mohsin Ali Khan Vs. State of U.P.
339
and to maintain healthy atmosphere in
the society, which is the most important
and essential factor for a civilized
society.

11- With the aforesaid observations
and directions, this application is disposed
of.

12- Registrar General of this Court is
directed to communicate the facsimile of
this order to the Secretary, Ministry of
Information and Technology, Government
of India, New Delhi, Chief Secretary, State
of U.P. and the concerned Court below
within a week.
----------
(2022)03ILR A339
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.12.2017

BEFORE

THE HON'BLE SHAILENDRA KUMAR
AGRAWAL, J.

Criminal Appeal No.220 of 1991

Mohsin Ali Khan ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri S.K. Verma, Sri Mithilesh Kumar Gupta

Counsel for the Respondent:
A.G.A.

Criminal Law- The Essential Commodities
Act-
Section
3/7-
Conviction
and
sentenced to undergo six months' rigorous
imprisonment- Modification of Sentence-
Proportionate punishment- The appellant
has spent in jail 86 days i.e. about half
sentence awarded by the learned trial
court- The appeal is very old one and the
sentence is only for six months and more
than 26 years have elapsed- There is
nothing on record that the appellant has
any criminal history. Prosecution has
failed to bring on record any material
which disqualifies the appellant from his
sentence being modified- The conviction
of the appellant by impugned judgment
and order is hereby maintained. His
sentence is reduced to the period of
imprisonment already undergone by him
with fine of Rs.20,000/-.

Settled
law
that
sentence
should
be
commensurate with the gravity of the
offence and the manner of its commission as
well as other mitigating circumstances.
Where the accused has served out half the
sentence, the offence is not grave or heinous
and
much
time
has
elapsed,
hence
appropriate to modify the sentence with the
period
undergone
in
judicial
custody
alongwith
enhancement
of
fine
while
maintaining the conviction. ( Para 16, 17,
18)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon :-

1. Sevaka Perumal etc. Vs St. of T.N, AIR 1991
SC 1463

2. Jameel Vs St. of U.P, (2010) 12 SCC 532

(Delivered by Hon'ble Shailendra Kumar
Agrawal, J.)

1. This Criminal Appeal has been
preferred by the appellant Mohsin Ali Khan
against the judgment and order dated
07.02.1991 passed by the learned Special
Judge, Ghazipur in Criminal Case No.9 of
1990 (State Vs. Mohsin Ali Khan), arising
out of case crime no.122 of 1989, under
Section 3/7 of the Essential Commodities
Act, P.S. Kasamabad, District Ghazipur,
whereby the appellant was convicted and
sentenced under Section 3/7 of the
Essential Commodities Act for six months'
rigorous imprisonment.