Social Media Post Merely Casting Doubt On Conduct Of Free & Fair Assembly Elections Not An Offence U/S 505 IPC: Madhya Pradesh High Court

The Madhya Pradesh High Court at Gwalior has laid down that merely casting a doubt upon the conduct of free and fair Legislative Assembly elections via a social media post cannot attract the offence under Section 505(2) of IPC ('statements conducing to public mischief'). 

The petitioner in this case, a correspondent, had made a social media post raising doubt in relation to conduct of free and fair election in Lahar Legislative Assembly Constituency.

Treating the said post as derogatory and amounting to public mischief, an FIR was registered against the petitioner by Naib Tahsildar alleging the commission of offence under Sections 505(2) and 188 ('Disobedience to Order duly promulgated by public servant') of IPC.

The petitioner averred that his post fell under the sweep of 'freedom of speech and expression' under Article 19(1)(a) of the Constitution, and that no order had been promulgated by a public servant which was disobeyed by the petitioner. It was thus contended that no case for offence under Section 505(2) and 188 of IPC was made out against the petitioner. 

The present plea was thus filed by the petitioner seeking quashment of the FIR registered against him. 

Finding the social media post of the petitioner to clearly fall within the ambit of 'Freedom of Speech and Expression' under Article 19(1)(a) of the Constitution, Justice Anand Pathak observed, 

"Article 19 of the Constitution provides Freedom of Speech and Expression and if the post allegedly made by the petitioner is taken into consideration, then from the said post no derogatory comment or public mischief is reflected. Conducting free and fair elections in the Legislative Assembly particularly in Bhind/ Chambal area is always a paramount consideration and if doubt is raised by anybody in relation to conduct of free and fair election, then by no stretch of imagination it constitutes offence under Section 505(2) of IPC as the social media post of petitioner is not creating or promoting enmity, hatred or ill -will between different classes of the society and further no public mischief as provided in Section 188 of IPC is caused by the petitioner". 

Remarking on the goal of democracy to have a plural and tolerant society, Justice Pathak said,

"Freedom of speech is one of the core pillars upholding the Constitutional Spirit and democratic process and thus protection of it is essential. Free speech exists when citizenry can express its opinion including views that are critical towards the government without fearing backlash, such as being put into prison or receiving threats of violence. Democracy's goal is to have a plural and tolerant society. For this to happen successfully, citizenry should be able to speak freely and openly about how they would like to be governed. This exchange of ideas and opinions is not just a once off on election day, rather it is an on-going two-way communication which happens throughout a Government's term". 

Viewed in this context, the Court was of the considered opinion that there was nothing in the social media post of petitioner that was likely to promote feelings of enmity, hatred or ill will between different classes of society or was likely to disturb public peace and tranquility. 

"It does not violate any provision of the relevant law; and does not tend to incite people to commit a crime, cause disorder or violence or breach of law or glorifies violence in any way. Rather, it awakens the people,"  it added. 

As for the offence under Section 188 IPC was concerned, the Court noted that the Naib Tahsildar was required to prefer a complaint before the competent Court and that an FIR could not directly be registered at the police station. The Court thus held that the registration of FIR and launching of proceedings against the petitioner in the present case was thus not permitted, since no complaint had been filed in writing by the concerned public servant. 

"In the conspectus of facts and circumstances of the case as well as legal provisions, the FIR registered against the petitioner is misconceived and it is not in conformity with the prescribed law. The FIR registered against the petitioner is in confrontation with the Fundamental Rights of petitioner as guaranteed by the Constitution of India under Article 19. The social media post of petitioner merely falls under Freedom of Speech and Expression and does not constitute any offence under Section 505(2) of and 188 of IPC," the Court held, while allowing the plea and discharging the petitioner of all offences and allegations. 

Counsel for the Petitioner: Advocate Gaurav Mishra 

Counsel for the Respondent: Advocate Rajeev Upadhyay

Citation: 2024 LiveLaw (MP) 11