Gujarat HC Refuses To Quash FIR Against SDPI Secretary For Allegedly Posting WhatsApp Message To Trigger Religious Enmity

The bench of Justice JC Doshi whether the petitioner had the intention to cause disharmony or hatred between two groups can be established only during the trial and at the stage of plea seeking quashing of the FIR, it cannot be said that no offence is made out.

“On reading of the FIR, what prima facie contemplates that the message circulated through WhatsApp group with the intention to prompt hatred or disharmony amongst two groups and which may create sufficient mischief so as to fall within the scope of Section 153-A r/w 505 of the IPC,” the bench observed.

Essentially, the FIR against Nausarka was lodged by the PSI, Navsari Police Station after verifying that the following message was forwarded by the members of SDPI (including the petitioner) in a WhatsApp group without verifying the genuineness of the message:

“The news has come that some Muslim shop in the lower Shantadevi Road Navsari has been demolished by unruly elements and those who have Muslim tenants in their shop have been threatened. After knowing the whole matter, we will take legal action.”

In the FIR, lodged under Sections 153-A, 505 and 120-B of the IPC r/w Section 66A(b) of the IT Act, alleged that by posting the said message, the petitioner had the intention to prompt enmity between two groups on the ground of religious places and residents, etc.

Moving the High Court, the petitioner sought quashing of the FIR contending that the same is concocted, false and vexatious.

It was also argued that on the perusal of the alleged message, it does not construe that this message was passed/forwarded to trigger the enmity between Hindus and Muslims. It was also the submission that the offence under Section 66A(b) of the IT Act cannot be registered as the said provision has been struck down by the Hon’ble Apex Court.

Importantly, in his plea, he also alleged that he was subjected to custodial torture and that he was mercilessly beaten up by the police personnel.

On the other hand, the Counsel for the state argued that a bare reading of the WhatsApp message, as admitted by the petitioner, clearly indicates that the same had been circulated in the society to disturb the public harmony and to prompt enmity between the two communities.

Having heard the counsel for both parties, the Court, at the outset observed that Section 153-A of IPC, which checks fissiparous communal and separatist tendencies and secure fraternity, punishes any act which prompts enmity between the two groups on the grounds of religion.

Regarding the allegations stated in the FIR, the Court prima facie found that the message circulated through the WhatsApp group was to prompt hatred or disharmony amongst two groups, however, it added that whether the petitioner had the intention to cause disharmony or hatred amongst two groups can only be established during the trial.

Against this backdrop, the Court found no case to entertain and to allow the petitioner’s plea.

Regarding the invocation of Section 66A of the IT Act in the FIR, the Court prohibited the IO from investigating the offence under Section 66A of the IT Act.

Insofar as the submissions of the petitioner of beating mercilessly, the Court noted that he has already made a complaint before the learned JMFC and hence, the Court said, the same would be taken care of by the concerned Officer.

With this, the plea was dismissed.

Case Title - Mohammad Shaukatali Nausarka vs. State Of Gujarat 

LL Citation: 2023 LiveLaw (Guj) 167

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