Allahabad HC refuses to quash case against man booked for saying brother was implicated because of religion

The Allahabad High Court recently said that circulation of a message claiming that someone was implicated in a false case due to their religion, amounts to creating or promoting feelings of enmity, hatred and ill-will between religious communities [Afaq Ahmad v. State of UP and Others].

The Division Bench of Justices JJ Munir and Pramod Kumar Srivastava ruled that such an act would attract Section 353(2) of the Bharatiya Nyaya Sanhita (BNS), a provision that criminalises statements circulated with the intent to create or promote enmity or hatred in society.

The Court was dealing with a petition seeking quashing of a case registered by the Bijnour police against a man for circulating inflammatory messages on WhatsApp after his brother was arrested in a separate case of illegal religious conversion.

A counsel representing the accused submitted that the message only showed his resentment towards his brother's arrest and that the post also revealed his complete faith in the judicial process.

However, the Court opined that the words of the post or message may not speak per se about religion, but definitely conveyed an underlying and subtle message that his brother had been targeted in a false case, because he belonged to a particular religious community. 

“These unsaid words in the message prima facie would outrage religious feelings of a class of citizens hailing from a particular community, who would think that they are being targeted because of belonging to a particular religious community,” the Court said.

The Court added that even if one were to think that no religious feelings of a class of citizens or community were outraged by the WhatsApp message, “by its unsaid words”, it was likely to create or promote feelings of enmity, hatred and ill-will between religious communities.

“The act may not be within the mischief of Section 353(3), but prima facie would attract Section 353(2) BNS. Bearing in mind the overall context of the FIR and the manner in which the petitioner has acted in sending out WhatsApp messages to a multitude of persons, that has the potential above noted, we are of opinion that the petitioner is not entitled to grant of relief under Article 226 of the Constitution, interdicting investigation in any manner or any of its processes,” the Court ruled.

Thus, it dismissed the plea with the observation that an investigation was required in the matter.

“In the totality of circumstances, we are of opinion that this is a matter, which requires investigation and cannot be scuttled at an incipient stage, foreclosing probe that must be carried to its logical conclusion,” the Court said.

Advocate Syed Shahnawaz Shah appeared for the accused.

Additional Government Advocate Shashi Shekhar Tiwari appeared for the State.

[Read Judgment]