# Siddharth Varadarajan & Anr v. State of U.P. & Ors

- **Citation:** (2022) 6 ILRA 1056
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-25
- **Case number:** Crl. Misc. Writ Petition No. 8431 of 2021
- **Bench:** Ashwani Kumar Mishra, Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/siddharth-varadarajan-anr-v-state-of-u-p-ors-48627
- **Pages:** 13

## Headnote

A. Criminal Law - Indian Penal Code, 1860
- Sections 153-B & 505(2) - Quashing of
F.I.R.--- Dissent and criticism of the elected
government's policy, when puissant, deceptive
or even false would be ethically wrong, but
would not invite penal action. Only where the
written or spoken words have the tendency of
creating public disorder or disturbance of law
and order or affecting public tranquillity, the law
needs to step in to prevent such an activity.

B.
The
instigation
must
necessarily
and
specifically be suggestive of the consequences
and
sufficient
certainty
to
incite
the
consequences must be capable of being spelt
out to be incitement. The word 'Promote' does
not imply mere describing and narrating a fact,
or giving opinion, criticising the point of view or
actions of another person. It requires that the
speaker should actively incite the audience to
cause public disorder. This active incitement can
be gauged by the content of the speech, the
context and surrounding circumstances and the
intent of the speaker. However, in case the
speaker does not actively incite the descent into
public disorder and is merely pointing out why a
certain person or group is behaving in a
particular manner, what are their demands and
their point of view or when the speaker
interviews such person or group, it would be a
passive delivery of facts and opinions which may
not
amount
to
promotion.
In
such
circumstances it cannot be said that the news
was published to create nuisance or riot and
incite the people.

C. F.I.R. can be quashed on the parameters laid
down in the case of R.P. Kapoor Vs St. of
Punjab; AIR 1960 SC 866 and St. of Haryana Vs
Bhajan Lal; 1992 Supp (1) SCC 335.

Writ Petition allowed. (E-12)

List of Cases cited:-

## Text

_Characters 0–39,876 of 43,918. This is a partial read: ask again with offset=39876 for what follows._

1056 INDIAN LAW REPORTS ALLAHABAD SERIES
independent conclusions on the basis of
evidence led unaffected by anything said in
this order.

21- However, trial Court is directed to
conclude
the
trial
of
the
applicant
expeditiously
in
accordance
with
provisions of Section 309 Cr.P.C without
granting unnecessary adjournment to either
of the party.

22- Copy of this order be sent to the
concerned Court below for compliance.
----------
(2022)06ILR A1056
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE RAJNISH KUMAR, J.

Crl. Misc. Writ Petition No. 8431 of 2021

Siddharth Varadarajan & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Mehul Khare, Ms. Pragya Pandey

Counsel for the Respondents:
G.A.

A. Criminal Law - Indian Penal Code, 1860
- Sections 153-B & 505(2) - Quashing of
F.I.R.--- Dissent and criticism of the elected
government's policy, when puissant, deceptive
or even false would be ethically wrong, but
would not invite penal action. Only where the
written or spoken words have the tendency of
creating public disorder or disturbance of law
and order or affecting public tranquillity, the law
needs to step in to prevent such an activity.

B.
The
instigation
must
necessarily
and
specifically be suggestive of the consequences
and
sufficient
certainty
to
incite
the
consequences must be capable of being spelt
out to be incitement. The word 'Promote' does
not imply mere describing and narrating a fact,
or giving opinion, criticising the point of view or
actions of another person. It requires that the
speaker should actively incite the audience to
cause public disorder. This active incitement can
be gauged by the content of the speech, the
context and surrounding circumstances and the
intent of the speaker. However, in case the
speaker does not actively incite the descent into
public disorder and is merely pointing out why a
certain person or group is behaving in a
particular manner, what are their demands and
their point of view or when the speaker
interviews such person or group, it would be a
passive delivery of facts and opinions which may
not
amount
to
promotion.
In
such
circumstances it cannot be said that the news
was published to create nuisance or riot and
incite the people.

C. F.I.R. can be quashed on the parameters laid
down in the case of R.P. Kapoor Vs St. of
Punjab; AIR 1960 SC 866 and St. of Haryana Vs
Bhajan Lal; 1992 Supp (1) SCC 335.

Writ Petition allowed. (E-12)

List of Cases cited:-

1. Amish Devgan Vs U.O.I. & ors.; (2021) 1 SCC 1

2. Patricia Mukhim Vs St. of Meghalaya & ors.;
2021 SCC Online SC 258

3. Vinod Dua Vs U.O.I. & ors.; 2021 SCC OnLine
SC 414

4. Niharika Infrastructure Pvt. Ltd. Vs St. of
Mah. & ors.; 2021 SCC OnLine SC 315

5. R.P. Kapoor Vs St. of Pun.; AIR 1960 SC 866

6. St. of Har. Vs Bhajan Lal; 1992 Supp (1) SCC 335
(Delivered by Hon'ble Ashwani Kumar
Mishra, J. & Hon'ble Rajnish Kumar, J.)

1. Heard Ms. Pragya Pandey, learned
counsel for the petitioners and learned
6 All. Siddharth Varadarajan & Anr. Vs. State of U.P. & Ors.
1057
A.G.A. for the State. None appeared for the
informant despite sufficient service.

2. The instant petition has been filed
for quashing the First Information Report
(here-in-after
referred
as
FIR)
dated
31.01.2021 in Case Crime No.27 of 2021,
under Section 153-B and 505 (2) of Indian
Penal Code (here-in-after referred as IPC),
registered at Police Station- Civil Lines,
District- Rampur alongwith consequential
reliefs.

3. Petitioner no.1 is the founding
editor of online news publication 'The Wire'
and the petitioner no. 2 is the reporter of
the said online news publication. The
farmers were protesting against three
farmer laws enacted in 2020. As a mark of
protest
they
marched
in
Delhi
on
26.01.2021 and in an incident near 'ITO'
New Delhi, a young man named Navreet
Singh
Dibdiba
hailing
from
district
Rampur, U.P. suffered serious injuries and
succumbed to death. The State version is
that death was caused due to an accident
involving his tractor whereas some of the
eye witnesses and the victims primarily
claim that it was due to bullet injury. 'The
Wire' covered this incident in its report
dated 30.01.2021 titled "Autopsy Doctor
Told Me He'd Seen the Bullet Injury but
Can Do Nothing as His Hands are Tied"
authored by the petitioner no.2 and shared
it on Twitter handle at 10.08 A.M. A
clarificatory statement was issued by the
three
doctors
who
carried
out
the
postmortem denying that they had spoken
to the media or any other person or they
made any such statement. The said news
was also published by the petitioner no.1
on 30.01.2021 at 04:46 P.M. after it was
issued by Rampur Police at 4.39 P.M. The
FIR was lodged on 31.01.2021 at 00.59
bearing FIR No. 27 of 2021 under Sections
153-B and 505 (2) IPC against the
petitioner no.1 on the basis of a complaint
by one Sanju Turaiha / respondent no.3
alleging that the petitioner no.1 by way of
the
aforementioned
tweet,
sought
to
provocate the masses, spread riot, tarnish
the image of medical officers by proving
wrong to the panel of Medical Officers and
disturb law and order and though the
doctors who performed the postmortem
denied that they have told the victim's
family that the cause of the death was
bullet injuries but the petitioner no.1 did
not delete the tweet. The petitioners
approached the Hon'ble Supreme Court
challenging the three FIRs. Including the
FIR No. 27 of 2021 in Writ Petition
(Criminal) No.71 of 2021. The Hon'ble
Supreme Court by means of the order dated
08.09.2021 permitted the petition to be
withdrawn by the petitioner no. 2 and
granted protection from any coercive action
for a period of two months. Consequently,
the present writ petition has been filed.

4. Learned counsel for the petitioners
submitted that the petitioners have wrongly
and falsely been implicated in the case. The
allegations made in the FIR does not
disclose the commissioning of any offence
under Section 153-B and 505 (2) IPC. The
petitioners
had
only
published
the
statement of the parents of the deceased
and the contradictions of the doctors was
also published / uploaded at the earliest
after it's release. Therefore even if the same
was not deleted it does not constitute any
offence. There was no threat of riots and in
fact there was no violence or riot on
account of the alleged publication. She had
further submitted that the fair criticism is
permissible under law. She had also
submitted that the grand father of the
deceased has moved the Delhi High Court
praying for a Court monitored probe into
1058 INDIAN LAW REPORTS ALLAHABAD SERIES
the death of his grandson, where the High
Court has issued the notices and the Delhi
High Court is monitoring the investigation.
Therefore the FIR is nothing but an abuse
of process of law and curtailment of right
to freedom of speech. Therefore the
impugned FIR is not sustainable in the eyes
of law and liable to be quashed.

5. Learned A.G.A. vehemently
opposed the submissions of learned counsel
for the petitioners. He submitted that the
FIR has rightly been lodged in accordance
with law as despite the contradictions of the
doctors in regard to the statement published
by the petitioners, the news item was not
deleted. The allegations levelled in the FIR
disclose the commissioning of offence
under Section 153-B and 505 (2) IPC.
Therefore the FIR can not be quashed and
the writ petition is liable to be dismissed.

6.

We
have
considered
the
submissions of learned counsel for the
parties and perused the record.

7. The farmers were protesting against the
three farm laws enacted in the year 2020. As a
part of their protest the farmers marched into
New Delhi on 26.01.2021. During the protest in
an incident near 'ITO' New Delhi, a young man
named Navreet Singh Dibdiba hailing from
district Rampur, U.P. died due to certain injuries
suffered in the incident. 'The Wire' online news
publication, the founding editor of which is the
petitioner no.1, covered this incident in its news
report dated 30.01.2021 titled as "Autopsy
Doctor Told Me He'd Seen the Bullet Injury but
Can Do Nothing as His Hands are Tied"
authored by petitioner no. 2. The news item is
extracted below:-

'Autopsy Doctor Told Me He'd Seen
the Bullet Injury But Can Do Nothing as
His Hands are Tied'

Grandfather of Navreet Singh, killed
in tractor parade on January 26, levels
dramatic charge, doctors deny making any
statement.

Note: This story ends with a video of
the wounds on Navreet Singh's face which
some readers may find disturbing.

New Delhi: The family of Navreet
Singh - the young man killed during the
tractor parade in the capital on January 26
- has refused to accept the Delhi police's
claim that he died because his tractor
overturned, and insists he was shot - as
farmers who say they were witness to the
incident near ITO had originally claimed.

The cause of Navreet Singh's death is
at the centre of three sedition cases that the
police in Uttar Pradesh, Madhya Pradesh
and Haryana have filed against journalists
including India Today's Rajdeep Sardesai,
and the Congress politician Shashi Tharoor
for blaming his death on a gunshot.

The Delhi police were quick to release
video footage in which a tractor can be
seen crashing into a police barricade and
overturning. However, farmers at the scene
claimed Navreet had been shot at before he
lost control of the vehicle.

The post mortem report, prepared by a
medical officer at the District Hospital,
Rampur, after a 2 am autopsy on January
27, concluded that the "cause of death is
shock and haemorrhage as a result of antemortem head injury", which Delhi Police
officials have cited as consistent with their
explanation.

The family, however, contests this
report.

''We were cheated, now courts will
decide'

"We were told by the doctor that they
have clearly seen the bullet injury, and then
we cremated his body peacefully. But we
were cheated, as the [post mortem] report
that came out did not say that. The doctor
6 All. Siddharth Varadarajan & Anr. Vs. State of U.P. & Ors.
1059
even told me that even though he had seen
the bullet injury, he can do nothing as his
hands are tied," Hardeep Singh Dibdiba,
Navreet's
grandfather
alleged,
while
speaking to The Wire on Friday, three days
after his death.

On their part, the doctors have denied
saying any such thing.

Dibdiba, 68, has been part of the
farmers' protest since the beginning, he
says, adding that he has authored five
books on Sikhism. However, after his
grandson's death, he is back in Dibdiba
village of Rampur in Uttar Pradesh.

Noting the mention that the postmortem report makes of two "lacerated"
wounds, one on Navreet's chin and the
other behind his ear, he said, "They
[doctors] haven't directly mentioned the
word bullet in the post-mortem, but given
the
circumstances
and
the
kind
of
government that is governing the state, they
wrote as much as they could about it. Now
the courts themselves will clear the matter
once we have a lawyer," he said.

Navreet's father, Vikramreet Singh, 46,
said, "Everybody who saw his dead body
saw that it was a bullet injury. One of the
doctors who did the post-mortem said that
it is a bullet injury, but that he can't write
it." He added that his son had recently
returned from Australia and went to Delhi
to participate in the tractor parade by
farmers. "We will finish his last rites by
February, 4 and then go ahead with our
plan of action," he said.

UP police deny interference or
pressure

Denying the family's bullet injury
claim, the seniormost police officer of the
area, ADG Bareilly Avinash Chandra, said,
"We had made a panel of senior doctors for
the autopsy. We have no reason to suppress
or distort such a document because the
matter is of Delhi Police."

One organisation the family could
approach, say lawyers, is the National
Human Rights Commission, which could
examine the video made during the autopsy
and cross examine the doctor who wrote up
the report.

What happened that day?

When this reporter saw Navreet
Singh's body lying on the road at ITO on
January 26, several farmers identified
themselves as eyewitnesses to the incident
and claimed that the young man had died
as a result of being hit by a bullet.

Though no police personnel were
visible within at least 300 meters from the
dead body, the farmers told reporters that
the police had "dispersed from the scene."

Even after the Delhi Police released
footage which showed Navreet's tractor
turning turtle, the farmers at the scene
stuck to their claims. "A bullet hit him and
that is why he lost control of the tractor
and met with an accident," said one man
who said he was a witness.

Family says deep gash above ear is
''exit wound' of bullet

The post mortem report makes no
mention of any bullet injury but does note
the presence of an inverted injury on the
left side of Navreet's lower chin, and an
everted injury above his right ear. The
report, which The Wire has accessed, lists
six injuries including those over the
eyebrow, chin, skull, ear ossicles, chest and
thigh.

The post mortem report mentions a
"lacerated wound of size 2cmx1cm over left
side of the chin, 1cm below left angle of the
mouth," adding that "margins are inverted
and bone deep." Another injury, the report
said, was a "lacerated wound of size
6cmx3cm over [the] right ear, margins are
irregular and everted (inside out) right ear
ossicles and brain matter is coming out
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
from [the] wound." The report also
mentions a "lacerated wound of size
2cmx1cm bone deep medial end of right
eyebrow, margins are inverted," and
"traumatic swelling" over the skull.

The family claims that the injury on
his right ear is the exit wound from the
bullet. However, Manoj Shukla, deputy
CMO and doctor at the district hospital in
Rampur where the post-mortem report was
prepared, said this was not so. Speaking to
The Wire over the phone on Friday, he said
that it is possible that something else might
have hit his right ear. "Or you may have got
the wrong document," he added.

According to a senior doctor at the
All India Institute of Medical Sciences,
speaking to The Wire on condition of
anonymity, laceration wounds can be
associated
with
bullet
injuries.
A
laceration is a wound that occurs when
skin, tissue, and/or muscle is torn or cut
open. Lacerations may be deep or
shallow, long or short, and wide or
narrow. Most lacerations are the result of
the skin hitting an object, or an object
hitting the skin with force.

He said, "It seems that the post
mortem report has carefully been made to
remove any doubts about a bullet injury."
He added that the nature of the injury on
his lower chin and ear could be possible
entry and exit points of a bullet injury,
especially given that the two injuries
form a straight line. He added, "If a
bullet had passed this man's head, the
mandible bone would have been fractured
but the report doesn't mention it. In fact,
the autopsy report does not mention any
X-rays done."

Navreet Singh's father says that the
doctors had assured them that a bullet
injury was visible in the X-rays but
refused to show it to them. Dr. Shukla
also confirmed that X-Rays were taken
during the autopsy. However the postmortem does not refer to any of them.

The family also shared a video of
Navreet's face, pointing to the deep holes
visible in his left chin and above his right
ear, making the point that this was a
bullet injury. While it is impossible for
journalists or lay persons to reach any
firm conclusion, the family is hoping an
independent probe will establish the
truth.

Reacting to Dibdiba's allegations,
the Rampur police tweeted a statement on
Saturday evening signed by the three
doctors involved in Navreet Singh's postmortem denying that they had spoken "to
the media or any other person" or
provided any such information as is being
attributed to them in the media."

In the news the State's version as well
as the allegations of victim's family were
published. It also carries contents of the
postmortem report. A clarification of the
three doctors was issued by the Rampur
Police at 04:39 PM on the same date. It was
also published, immediately thereafter, at
04:46 PM on 30.01.2021. The statement
reads as follows:-

िोट (िण्डि)

वदि ांक- 27.01.2021 को र वत्र 02.00 िजे
श्री ििरीत वसांह आयु ििभि 24 िर्य पुत्र श्री
वििमजीत वसांह उफय स हि वसांह, विि सी-
ग्र म वडिवडय , थ ि विि सपुर जिपद
र मपुर
क
पोस्टम टयम
थ ि
अध्यक्ष,
विि सपुर के मैमोां पर तीि वचवकत्सीय पैिि
के द्व र वकय िय थ , वजसकी वियम िुस र
िीवडयोग्र फी भी कर यी ियी थी। उपरोि
पोस्टम टयम के पैिि में श वमि तीिोां
वचवकत्स वधक ररयोां
में
से
वकसी
भी
वचवकत्स वधक री द्व र मीवडय में वकसी भी
प्रक र क िकतव्य /िय ि ज री िही वकय
6 All. Siddharth Varadarajan & Anr. Vs. State of U.P. & Ors.
1061
िय है। और यह भी कहि है वक पोस्टम टयम
करिे ि िे वचवकत्स वधक री द्व र पोस्टम टयम
ररपोटय की एक प्रवत पुविस अधीक्षक ि एक
प्रवत सम्बखन्धत थ ि ध्यक्ष/पुविस अवधक री को
सील्ड पैक विफ फे में उपिब्ध कर यी ज ती
है। इसके अवतररि पोस्टम टयम ररपोटय के
सम्बन्ध में म ० न्य य िय में आिश्यकत पड़िे
पर म ० न्य य िय द्व र िुि ये ज िे पर ही
पोस्टम टयम करिे ि िे वचवकत्स वधक री द्व र
म ० न्य य िय में िकतव्य/िय ि वदय ज त है

अतः श्री ििरीत वसांह की पोस्टम टयम
ररपोटय के सम्बन्ध में वचवकत्स वधक ररयोां के
ि म से मीवडय में प्रक वशत वकये ज रहे
सम च र/िकतव्य क पूणयतयः िण्डि वकय
ज त है वक इस प्रक र की कोई भी
िकतव्य/िय ि
हम रे
द्व र
वकसी
भी
मीवडय कमी/वकसी अन्य व्यखि को िहीां वदये
िये है।

ह० अपठिीय ह०अपठिीय ह०अपठिीय

(ड ० मो० जुिैर ) (ड ० दशरथ वसांह)
(ड ० मिोज कुम र शुक्ल )

वचवकत्स वधक री ई०एम०ओ० उपमुख्य
वचवकत्स अवधक री

8. The impugned FIR No. 27 of 2021,
under Section 153-B and 505 (2) IPC was
registered on 31.01.2021 at 00.59 on a
complaint made by the respondent no. 3.
The FIR was lodged with the allegations
that
the
petitioner
by
way
of
the
aforementioned tweet, sought to provocate
the masses, spread riot, tarnish the image of
medical officers by proving wrong to the
panel of Medical Officers and disturb law
and order and though the doctors who
performed the postmortem denied that they
have told the victim's family that the cause
of the death was bullet injuries but the
petitioner no.1 did not delete the tweet. The
petitioner no. 2, who is author of the news
report shared by the petitioner no.1 on
tweeter, was later on added in the FIR,
which was originally registered against the
petitioner no.1. The FIR is extracted
below:-

िकि तहरीर.......... सेि में, श्रीम ि
प्रभ री
विरीक्षक,
थ ि
वसविि
ि इन्स,
र मपुर। महोदय, स दर वििेदि इस प्रक र है
वक प्र थी को सोशि मीवडय ट्वीटर के म ध्यम
से सांज्ञ ि में आय है वक वसद्ध थय ि म व्यखि
द्व र वसद्ध थय/एसिरदर जि एक न्ट से वदि ांक
30.01.2021 को समय प्र तः 10:08 िजे पोस्ट
ड ि िय है, वजसमें कह िय है वक कृवर्
विि के विरोध में वदल्ली में चि रहे धरि
प्रदशयि के दौर ि ििरीत वसांह वडिवडय की
मृत्यु क ररत हुई थी वजसके पोस्टम टयम में
श वमि एक पैिि ड क्ट्र द्व र ििरीत वसांह
के द द हरदीप वसांह को िय ि वदय िय है
वक ििरीत वसांह की मृत्यु िोिी िििे से
घ यि होिे के क रण हुई थी। वचवकत्सक के
ह थ अिुवचत प्रभ ि में िांधे हुए थे इसविए िह
कुछ िहीां कर सक । इस ट्वीट में वजस
तथ कवथत ररपोटय क हि ि वदय िय इस
इस प्रक र से प्रस्तुत वकय िय वजससे िह
पोस्टम टयम करिे ि िे वचवकत्सक क कथि
ििे, वजसे पढकर िोि वदग्भ्रवमत हो ज ये।
इसके पररण मस्वरूप र मपुर के जि स म न्य
में आिोश व्य प् हो िय है एिां ति ि िढ
िय है। यह पोस्ट विवित रूप से र्डयन्त्र के
अन्तियत जिस म न्य को क्षवत क ररत कर
अिुवचत ि भ कम िे के उद्देश्य से वहांस
भड़क िे हेतु वकय िय प्रतीत होत है। जि
वक ििरीत वसांह पुत्र वििमजीत वसांह उफय
स हि वसांह विि सी ग्र म वडिवडय थ ि
विि सपुर जिपद र मपुर क पोस्टम टयम
वजि श सकीय वचवकत्स िय र मपुर के
श सकीय वचवकत्स अवधक री के 03 सदस्यीय
पैिि द्व र वकय िय थ और उिके द्व र
पोस्टम टयम ररपोटय सील्ड िन्द विफ फे में
1062 INDIAN LAW REPORTS ALLAHABAD SERIES
वियम िुस र पुविस अधीक्षक एिां सांिांवधत
प्रभ री विरीक्षक को प्रेवर्त की ियी है।
वचवकत्स वधक री द्व र इस सम्बन्ध में वकसी भी
व्यखि को कोई िय ि िही वदय िय है
पोस्टम टयम की िीवडयोग्र फी भी कर यी ियी
है। तीिोां श सकीय वचवकत्स वधक ररयोां द्व र
उि ि यरि पोस्ट क िण्डि वकय िय है।
इसके ि िजूद भी उि ट्वीट को अभी तक
हट य िहीां िय है। विि सही तथ्ोां की
ज िक री वकये, ज ििूझकर सोशि मीवडय -
वट्वटर के म ध्यम भड़क ऊ पोस्ट ड िि ,
श सकीय वचवकत्स वधक ररयोां क िित िय ि
दश यकर मृतक ििरीत वसांह की मृत्यु िोिी
िििे क क रण क ररत होि ित कर जि
स म न्य
को
भड़क िे,
उपद्रि
फैि िे,
श सकीय वचवकत्स वधक ररयोां एिां पैिि को
िित स वित कर उिकी छवि धूवमि करिे
के स थ ही श खन्त एिां क िूि व्यिस्थ को
विि ड़िे क भरसक प्रय स वकय िय है।
उि कृत्य ध र 505 आई०पी०सी० एिां 66 ए०
आईटीएक्ट् 2008 के अन्तियत िम्भीर अपर ध
है। अतः श्रीम ि जी से प्र थयि है वक प्रथम
सूचि ररपोटय दजय कर सांिांवधत के विरूद्ध
क िूिी क ययि ही करिे की कृप करें। वदि ांक
30.01.2021 sd-अांग्रेजी Sanju प्र थी सांजू तुरैह
पुत्र जीि र म विि सी पििवड़य थ ि वसविि
ि इन्स र मपुर। मो० 9149060025 िोटः- मै
सीसी1466 विवपि कुम र प्रम वणत करत हाँ वक
प्र थयि पत्र की िकि कम्प्यूटर पर शब्द ि
शब्द िोि िोिकर क ०1465 शिेन्द्र से ट ईप
कर यी ियी।"

9. The aforesaid FIR was lodged
under section 153-B and 505 (2) IPC,
which are extracted below for ready
reference:-

"153-B.
Imputations,
assertions
prejudicial to national integration.--(1)
Whoever, by words either spoken or written
or by signs or by visible representations or
otherwise,-- (a) makes or publishes any
imputation that any class of persons
cannot, by reason of their being members
of any religious, racial, language or
regional group or caste or community, bear
true faith and allegiance to the Constitution
of India as by law established or uphold the
sovereignty and integrity of India, or

(b)
asserts,
counsels,
advises,
propagates or publishes that any class of
persons shall, by reason of their being
members of any religious, racial, language
or regional group or caste or community,
be denied, or deprived of their rights as
citizens of India, or
(c) makes or publishes and assertion,
counsel, plea or appeal concerning the
obligation of any class of persons, by
reason of their being members of any
religious, racial, language or regional
group or caste or community, and such
assertion, counsel, plea or appeal causes
or is likely to cause disharmony or feelings
of enmity or hatred or ill-will between such
members and other persons, shall be
punished with imprisonment which may
extend to three years, or with fine, or with
both.

(2) Whoever commits an offence
specified in sub-section (1) in any place of
worship or in any assembly engaged in the
performance of religious worship or
religious ceremonies, shall be punished
with imprisonment which may extend to
five years and shall also be liable to fine.

505
(2)
Statements
creating
or
promoting
enmity,
hatred
or
ill-will
between
classes.--
Whoever
makes,
publishes or circulates any statement or
report containing rumour or alarming news
with intent to create or promote, or which
is likely to create or promote, on grounds of
religion, race, place of birth, residence,
language, caste or community or any other
6 All. Siddharth Varadarajan & Anr. Vs. State of U.P. & Ors.
1063
ground whatsoever, feelings of enmity,
hatred or illwill between different religious,
racial, language or regional groups or
castes or communities, shall be punished
with imprisonment which may extend to
three years, or with fine, or with both."

10. For constituting an offence against
a person under Section 153-B IPC there
should be words either spoken or written or
signs or visible representations by a person
on account of which any class of persons
can not by reason of their being members
of any religious, racial, language or
regional group or caste or community, bear
true faith and allegiance to the constitution
of India or uphold the sovereignty and
integrity of India or on account of various
factors mentioned therein be denied or
deprived of their rights as citizens of India
or such assertion, counsel, plea or appeal
causes or likely to cause disharmony or
feelings of enmity or hatred or ill will
between such members and other persons.

11. Similarly for constituting an
offence under Section 505 (2) IPC, it refers
to
a
person
making,
publishing
or
circulating
any
statement
or
report
containing rumour or alarming news.
Thereafter, it refers to the intent of the
person which should be to create or
promote and then refers to the harm-based
element, that is, likely to create or promote
on the ground of religion, race, place of
birth, residence, language, cast, etc., feeling
of enmity, hatred or ill-will between
different
religions,
racial
language,
religious groups or castes or communities,
etc. Unless the aforesaid ingredients are
fulfilled the offences under sections 153-B
and 505 (2) can not be made out.

12. The Hon'ble Supreme Court, in
the case of Amish Devgan Vs. Union of
India and Others; (2021) 1 SCC 1, has
held that a publication which contains
unnecessary asides which appear to have
no real purpose other than to disparage will
tend to evidence that the publications were
written with a malafide intention. However,
opinions may not reflect malafide intention.
It has further been held that dissent and
criticism of the elected government's
policy, when puissant, deceptive or even
false would be ethically wrong, but would
not invite penal action. It has also
considered that as to what will be the
impact of statement or impact and authority
of a reasonable person. The relevant
paragraphs- 70, 71 & 76 to 78 are extracted
below:-

"70. Manzar Sayeed Khan, taking note
of the observations in Bilal Ahmad Kaloo,
records that common features of Section
153A. And 505 (2) being promotion of
feeling of enmity, hatred or ill-will
''between different' religious or racial or
linguistic or regional groups or castes or
communities, involvement of at least two
groups or communities is necessary.
Further, merely inciting the feeling of one
community or group without any reference
to any other community or group would not
attract either provision. Definition of ''hate
speech' as expounded by Andrew F. Sellars
prescribes that hate speech should target a
group or an individual as they relate to a
group.

71. The Preamble to the Constitution
consciously
puts
together
fraternity
assuring dignity of the individual and the
unity and integrity of the nation. Dignity of
individual and unity and integrity of the
nation are linked, one in the form of rights
of individuals and other in the form of
individual's obligation to others to ensure
unity and integrity of the nation. The unity
and integrity of the nation cannot be
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
overlooked and slighted, as the acts that
''promote' or are ''likely' to ''promote'
divisiveness, alienation and schematism do
directly and indirectly impinge on the
diversity and pluralism, and when they are
with the objective and intent to cause
public disorder or to demean dignity of the
targeted groups, they have to be dealt with
as per law. The purpose is not to curtail
right to expression and speech, albeit not
gloss over specific egregious threats to
public disorder and in particular the unity
and integrity of the nation. Such threats not
only
insidiously
weaken
virtue
and
superiority of diversity, but cut-back and
lead to demands depending on the context
and occasion, for suppression of freedom to
express and speak on the ground of
reasonableness. Freedom and rights cannot
extend to create public disorder or armour
those who challenge integrity and unity of
the country or promote and incite violence.
Without acceptable public order, freedom to
speak and express is challenged and would
get restricted for the common. masses and
law-abiding citizens. This invariably leads
to State response and, therefore, those who
indulge in promotion and incitement of
violence to challenge unity and integrity of
the nation or public disorder tend to
trample upon liberty and freedom of others.

76. Persons of influence, keeping in
view their reach, impact and authority they
yield on general public or the specific class
to which they belong, owe a duty and have
to be more responsible. They are expected
to know and perceive
the meaning
conveyed by the words spoken or written,
including the possible meaning that is
likely to be conveyed. With experience and
knowledge, they are expected to have a
higher level of communication skills. It is
reasonable to hold that they would be
careful in using the words that convey their
intent. The reasonable-man's test would
always take into consideration the maker.
In other words, the expression ''reasonable
man' would take into account the impact a
particular
person
would
have
and
accordingly apply the standard, just like we
substitute the reasonable man's test to that
of the reasonable professional when we
apply the test of professional negligence. 98
This is not to say that persons of influence
like journalists do not enjoy the same
freedom of speech and expression as other
citizens, as this would be grossly incorrect
understanding of what has been stated
above. This is not to dilute satisfaction of
the three elements, albeit to accept
importance of ''who' when we examine
''harm or impact element' and in a given
case even ''intent' and/or ''content element'.

77. Further, the law of ''hate speech'
recognises that all speakers are entitled to
''good faith' and ''(no)-legitimate purpose'
protection. ''Good faith' means that the
conduct should display fidelity as well as a
conscientious approach in honouring the
values that tend to minimise insult,
humiliation or intimidation. The latter
being objective, whereas the former is
subjective. The important requirement of
''good faith' is that the person must exercise
prudence, caution and diligence. It requires
due
care
to
avoid
or
minimise
consequences.
''Good
faith'
or
''nolegitimate purpose' exceptions would apply
with
greater
rigour
to
protect
any
genuineacademic, artistic, religious or
scientific purpose, or for that matter any
purpose that is in public interest, or
publication of a fair and accurate report of
any event or matter of public interest.Such
works would get protection when they were
not undertaken with a specific intent to
cause harm. These are important and
significant
safeguards.
They
highlight
importance of intention in ''hate speech'
adjudication.
''Hate
speech'
has
no
6 All. Siddharth Varadarajan & Anr. Vs. State of U.P. & Ors.
1065
redeeming or legitimate purpose other than
hatred towards a particular group. A
publication which contains unnecessary
asides which appear to have no real
purpose other than to disparage will tend
to evidence that the publications were
written
with
a
mala
fide
intention.
However, opinions may not reflect mala
fide intention.

78. The present case, it is stated, does
not relate to ''hate speech' causally
connected with the harm of endangering
security of the State, but with ''hate speech'
in the context of clauses (a) and (b) to subsection (1) of Section 153A, Section 295A
and sub-section (2) to Section 505 of the
Penal Code. In this context, it is necessary
to draw a distinction between ''free speech'
which includes the right to comment,
favour or criticise government policies;
and ''hate speech' creating or spreading
hatred against a targeted community or
group. The former is primarily concerned
with political, social Racial and Religious
Tolerance, 2001 (Victoria, Australia) and
economic issues and policy matters, the
latter would not primarily focus on the
subject matter but on the substance of the
message which is to cause humiliation and
alienation of the targeted group. The object
of criminalising the latter type of speech is
to protect the dignity (as explained above)
and to ensure political and social equality
between different identities and groups
regardless of caste, creed, religion, sex,
gender
identity,
sexual
orientation,
linguistic preference etc. Freedom to
express and speak is the most important
condition for political democracy. Law and
policies are not democratic unless they
have
been
made
and
subjected
to
democratic process including questioning
and criticism. Dissent and criticism of the
elected government's policy, when puissant,
deceptive or even false would be ethically
wrong, but would not invite penal action.
Elected representatives in power have the
right to respond and dispel suspicion. The
''market place of ideas' and ''pursuit of
truth'
principle
are
fully
applicable.
Government should be left out from
adjudicating what is true or false, good or
bad, valid or invalid as these aspects
should be left for open discussion in the
public domain. This justification is also
premised on the conviction that freedom of
speech serves an indispensable function in
democratic governance without which the
citizens cannot successfully carry out the
task to convey and receive ideas. Political
speech relating to government policies
requires greater protection for preservation
and promotion of democracy. Falsity of the
accusation would not be sufficient to
constitute
criminal
offence
of
''hate
speech'."

13. The Hon'ble Supreme Court, in
the case of Patricia Mukhim Vs. State of
Meghalaya and Others; 2021 SCC
Online SC 258, has held that only where
the written or spoken words have the
tendency of creating public disorder or
disturbance of law and order or affecting
public tranquillity, the law needs to step in
to prevent such an activity. The Hon'ble
Supreme Court regarding right to freedom
of speech has held as under in paragraph
14:-

"14. India is a plural and multicultural
society. The promise of liberty, enunciated
in the Preamble, manifests itself in various
provisions which outline each citizen's
rights; they include the right to free speech,
to travel freely and settle (subject to such
reasonable restrictions that may be validly
enacted) throughout the length and breadth
of India. At times, when in the legitimate
exercise of such a right, individuals travel,
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
settle down or carry on a vocation in a
place where they find conditions conducive,
there may be resentments, especially if such
citizens prosper, leading to hostility or
possibly violence. In such instances, if the
victims voice their discontent, and speak
out, especially if the state authorities turn a
blind eye, or drag their feet, such voicing of
discontent is really a cry for anguish, for
justice denied - or delayed. This is exactly
what appears to have happened in this
case."

14. The Hon'ble Supreme Court, in
the Case of Vinod Dua vs Union Of India
and Others; 2021 SCC OnLine SC 414,
had held that a citizen has a right to say or
write
whatever
he
likes
about
the
Government, or its measures, by way of
criticism or comment, so long as he does
not incite people to violence against the
Government established by law or with the
intention of creating public disorder and
that is only when the words or expressions
have pernicious tendency or intention of
creating public disorder or disturbance of
law and order that Sections 124-A and 505
of the IPC must step in.

15. The word 'Incitement' has been
considered by the Hon'ble Supreme Court
in the Case of Amish Devgan Vs. Union of
India and Others (Supra). The instigation
must
necessarily
and
specifically
be
suggestive
of
the
consequences
and
sufficient
certainty
to
incite
the
consequences must be capable of being
spelt out to be incitement. The word
'Promote' does not imply mere describing
and narrating a fact, or giving opinion,
criticising the point of view or actions of
another person. It requires that the speaker
should actively incite the audience to cause
public disorder. This active incitement can
be gauged by the content of the speech, the
context and surrounding circumstances and
the intent of the speaker. However, in case
the speaker does not actively incite the
descent into public disorder and is merely
pointing out why a certain person or group
is behaving in a particular manner, what are
their demands and their point of view or
when the speaker interviews such person or
group, it would be a passive delivery of
facts and opinions which may not amount
to promotion. In such circumstances it can
not be said that the news was published to
create nuisance or riot and incite the
peaple.

16. Adverting to the facts of this case,
the FIR was lodged alleging therein that the
petitioners by publication of the alleged
news and the aforesaid tweet sought to
provocate the masses, spread riot, tarnish
the image of medical officers by proving
wrong to the panel of Medical Officers and
disturb law and order and though the
doctors who performed the postmortem
denied that they have told the victim's
family that the cause of the death was
bullet injuries but the petitioner no.1 did
not delete the tweet. Perusal of the
publication made by the petitioners indicate
that it mentions the fact of incident,
thereafter the statement of the family
members regarding incident and alleged
information given by the doctors to him,
denial of the U.P. Police and the fact as to
what happened that day. This publication
was made on 30.01.2021 at 10.08 A.M. and
on the very same day a clarification of the
three doctors was issued by Rampur Police
at 04:39 PM, immediately thereafter at
04:46 PM, the same was also published by
the petitioners. The aforesaid news items
does not disclose that any opinion was
expressed
by
the
petitioners
with
consequences thereof, therefore this Court
does not find any opinion or assertion on
6 All. Siddharth Varadarajan & Anr. Vs. State of U.P. & Ors.
1067
the part of the petitioners which may have
the effect of provocating or inciting the
people. Nothing was also brought before
this court to indicate that there was any
disturbance or riot which may have any
bearing on public disorder on account of
the publication of news/ tweet of the
petitioners.

17. The Hon'ble Supreme Court in
the case of Niharika Infrastructure Pvt.
Ltd. Vs. State of Maharashtra and
Others; 2021 SCC OnLine SC 315 has
recorded its conclusions in regard to
quashing
of
the
F.I.R.
/
criminal
proceedings, according to which the
F.I.R. can be quashed on the parameters
laid down in the case of R.P. Kapoor Vs.
State of Punjab; AIR 1960 SC 866 and
State of Haryana Vs. Bhajan Lal; 1992
Supp (1) SCC 335. The cases in which
the F.I.R. / complaint can be quashed
have been identified in paragraph 102 of
Bhajan Lal (Supra) which is extracted
below:-

"102.(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 F.I.R. do not
disclose a cognizable offence, justifying
an investi- gation 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;