Gujarat High Court Quashes FIRs Against Three Booked For Creating Public Alarm By Forming Telegram Group Advocating Pay Rise For Constables

The Gujarat High Court has quashed criminal charges against three individuals accused of conspiring to incite public panic by allegedly forming a Telegram group to advocate for higher pay and additional service benefits for police constables, after noting that no offence was made out against them in the FIRs. 

In doing so the high court said that merely because a message is spread, it cant be said that due to this message, public tranquility is put in peril and fear has been created in the minds of people. 

A single judge bench of Justice Hasmukh D Suthar observed,

“Even, it is not a case of the prosecution that, there was a rumour spread by petitioners and there was an act on the part of the petitioners so to create fear or alarm between two group or class of people. Merely because police officials are involved in the group is not a ground that, there was a possibility to create class of two group of people. It is also pertinent to note that police officers will never lose their status of government servant unlike the primary teachers and other government employees who had made a demand of grade pay. They were also intending to get their legal right and grade pay.”

“Subsequently, considering various representations of MLAs and various government employees, unions, State has also increased the grade pay and extended the benefit to police officials also. Hence, question does not arise that said message has spread as a rumour and said act is also justifying that the demand made in messages was genuine one", the high court said.

Considering this, the court said that the act on the part of the petitioners even if it is taken as is, only amounts to a "fair and bonafide demand or criticism of government".

"Except this, no any inference could be drawn hence, no any offence is culled out from the allegations levelled in the FIRs,” Justice Suthar said.

Background

The common order was passed in a batch of pleas moved by the three individuals seeking quashing of various FIRs registered in 2020, containing the same set of allegations for offences punishable under Sections 120(B) (criminal conspiracy) and 505(1)(b) of IPC, as well as provisions of the Disaster Management Act and Police (Incitement to Disaffection) Act. 

Section 505(1)(b) IPC states that whoever makes, publishes or circulates any statement, rumour or report with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility, shall be punished with imprisonment of three years. 

The FIRs were filed at the instance of police officials who had alleged that the accused persons by "hatching criminal conspiracy" made the complainant a member of Telegram group–named '2800police_SRPF_Districtwise', without the complainant's knowledge on July 18, 2020. When the complainant checked the account on July 22, 2020  the account was deleted. Subsequently when the complainant verified the admin of the group and other details, it was found that the link was forwarded through www.kapsnet.in. Further, the details of the website were checked and different posts regarding grade pay of police were found, pursuant to which the FIRs were filed. 

Contentions

One of the petitioner's argued that he is innocent and had nothing to do whatsoever with the alleged offence. It was argued that recently primary teachers have made huge movement and protest against the government through different social platforms and at last government was ready to give them grade pay of Rs.4200/-. He further submitted that just to express the views by way of creating group or by circulating the rights of the police is not an offence. Further, after the movement of the teachers for the grade pay of Rs.4200/-, police constables also became hopeful and have started the movement for grade pay of Rs.2800/- and circulated the agenda of this demand by way of keeping status as “police2800”.

This he said had come to the knowledge of the government and Director General of Police, which had in its July 20, 2020 notification announced that whoever made groups and are circulating such posts will be punished and complaint would be registered. The petitioner  submitted that he has not posted any thing in the form of threat or creating any panic situation in the COVID-19 pandemic period and the FIR is nothing but an attempt to suppress the voice of the public.

Meanwhile the prosecution argued that the petitioners have committed the breach of public tranquility and fear in the minds of general public during the COVID-19 pandemic period. It was argued that the petitioners have nothing to do with the grade pay or police union though they have formed the group and generated one link and tried to form an association and tried to create a separate class to cause alarm in general public due to which law and order situation was put under peril and petitioners have incited likely to commit the offence. Considering this, prima facie, offence under Section 505(1)(B) of the IPC is made out and for that actual commission of offence is not required. 

Findings

Invocation of IPC S.120B not made out, no meeting of minds

The Court, in its order, outlined the essential ingredients required to invoke charges of criminal conspiracy under Section 120 of the IPC, stating that the first component is an agreement between two or more persons, and the second is the intention to commit an illegal act or a legal act by illegal means. The Court emphasized that the intent must be directly related to the outcome that the conspirators plan to achieve.

Addressing the elements of criminal conspiracy, the Court observed that there was no evidence or communication revealing a "meeting of minds" among the three accused, as they were unknown to each other and were from different places.

The Court noted, “...there is no any evidence or communication which reveals meeting of minds of three accused i.e. present petitioners as they are unknown to each other and from different places. Nonetheless, merely to form a group and subsequently to join the said group by clicking the link or by any other means by the police personnel which were also admittedly unknown to the present petitioners and merely for volunteering themselves to join as member of the said group cannot be termed as conspiracy and it is sine qua non to conspire.”

The high court further underscored that there must be an agreement between two persons to act or omit to do any illegal act, and given the facts of the present matter the question of invoking 120B IPC does not arise. 

"If we accept the allegations as it is, even though demand for the police personnel or on behalf of police personnel or government servant was a legitimate demand qua enhancement of the grade pay and other ancillary service benefits and cannot in any manner be termed as illegal demand as it was collective duty of employees and to raise any genuine or grievance or to ask for any right against employer cannot be termed as illegal demand. Hence, question does not arise to invoke the provisions of section 120(B) of the IPC against the present petitioners,” the Court added.

FIRs do not disclose any allegation suggesting that 3 men intended to cause fear/alarm to public

Turning to the facts of the case regarding the invocation of Section 505(1)(B) of the IPC, the Court observed that the FIRs did not disclose any act or allegation suggesting that the petitioners intended to cause fear or alarm to the public at large or induce any person to commit an offence against the State or disrupt public tranquillity. The Court highlighted that to establish the essential ingredients of the offence under Section 505 of the IPC, the act must have a direct effect on the security of the State or public order, which was missing in this case.

Referring to components of Section 505(1)(b) the high court said that must be shown that the act was likely to cause fear or alarm to the general public or a particular section of people, thereby convincing someone to commit an offence against the State or public tranquillity.

Petitioners cant be booked under IPC S.505 merely on apprehension

The high court held that neither the police personnel nor any other government employees had committed any offence against the State or public tranquillity, and the petitioners could not be booked for an offence under Section 505(1)(B) of the IPC merely based on apprehension or assumption.

Expounding on the exception to Section 505(1) of the IPC, the Court noted that if a person makes, publishes, or circulates any statement, rumour, or report with reasonable grounds for believing it to be true and does so in good faith and without malice or intention, it is not an offence under this section.

The Court further explained that the term "good faith," as defined under Section 52 of the IPC, requires only due care and attention. In this case, the Court found that neither the FIR nor the evidence suggested any malice or intention on the part of the petitioners, and merely forming a group or posting a message about legitimate demands of grade pay or service-related issues would not implicate the petitioners under Section 505(1)(B) of the IPC.

The Court also stated that in the absence of any malafide or malice on the part of the petitioners, no offence was made out under Section 505(1)(B) of the IPC. The Court reasoned that even if there was a chance of breach of public tranquillity or commission of an offence, the police had ample power to take appropriate recourse or preventive measures under Section 107 of the CrPC. The Court added that this was not a case where there was a possibility of the commission of a cognizable offence.

Reviewing the uncontroverted facts and allegations in the FIR, the Court concluded that they did not establish the essential ingredients of the offence under Section 505(1)(B) of the IPC. The Court clarified that to constitute an offence, there must be four elements: intention, preparation, attempt, and accomplishment.

Barring few offences, mere preparation is not an offence

The Court pointed out that, “Barring few offences under the IPC, merely preparation is not an offence. In normal circumstances, intervening only at the third and fourth stage, no any offence is made out. Herein, message is also sent and subsequently volunteering police personnel had abetted to join the said group. There was no compulsion on the part of the petitioners to join the group and even the complainant had an option if there was no compulsion or force to join the group. If complainant did not want to join the said group, he could have abstained himself from joining the said group. Hence, no any offence is made out under Section 505(1)(B) of the IPC.”

"The effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view," the high court added. 

The Court also noted that five different FIRs had been filed for one offence, which it said amounted to an abuse of the process of law and required the FIRs to be clubbed. Additionally, the Court clarified that the mere intention to form an association of police force members would not attract any penalty under Section 3 of the Police (Incitement to Disaffection) Act, 1922.

The Court thus held, “As discussed above, petitioners have not committed any offence under Section 505(1)(B) of the IPC as it was a fair and bonafide attempt and legitimate demand and subsequently government has also accepted the same and hence, it was not a rumour. Merely to express any opinion or to exercise the fundamental right or to make any criticism under Article 19(1)(a) of the Constitution of India is not an offence. Going by the allegations made in the FIRs and other attending circumstances, no offence is made out against the present petitioners.”

“Herein, as discussed in earlier part, petitioners have not circulated any false alarm or warning qua disaster or its severity or magnitude, leading to panic and due to such alleged message, no panic or rumour has been spread by the petitioners. Even otherwise, to invoke the provision of section 54 of the Disaster Management Act, the compliance of section 195(1)(a) of the CrPC is mandatory and complaint is required to be filed by the superior public servant under the statutory requirement,” the Court added while allowing the petitions and quashing and setting aside the impugned FIRs along with all its consequential proceedings.

Case Title: Kalpesh Vaghabhai Chaudhary Versus State Of Gujarat & Anr.

LL Citation: 2024 LiveLaw (Guj) 124

Click Here To Read Judgement