Freedom Of Speech Doesn't Mean That One Can Go To The Extent Of Making Wild And Malicious Allegations: P&H HC Denies Pre-Arrest Bail To Youtuber [Read Order]

The Bench of Justice H.S. Madaan was hearing the pre-arrest bail plea filed by petitioner – Kapil Dev, an accused in FIR No.0200 for the offences under Sections 504, 506, 509 IPC and Section 67 of Information Technology Act, 2000.

Background

A complaint was filed by Ms. Niharika Bhardwaj, a retired Military Officer of the rank of Major, who submitted that petitioner/accused Kapil Dev, Admin. of You-Tube Channel, 'Saabka Sainik Sangharsh Committee' had uploaded a false and doctored video on 15.4.2020 at 7:00 p.m. with an intention to malign her name and reputation.

As alleged in the complaint, the petitioner/accused Kapil Dev (calls himself an 'orator'), is a notorious person and through his doctored hate speeches against the Units of the Indian Army, attempted to create discontentment and rift.

Furthermore, it was alleged that he has been accessing official documents and restricted videos of activities of Army Establishments, which is an act of serious breach of security affecting the national interests.

According to the complainant, such video caused acute mental trauma and harassment to her and immediately after it was uploaded, the complainant received phone calls from her father, father-in-law, her brother and other close relatives, who inquired about the allegations and thereafter expressed their concern about her safety. She sought taking of action against the petitioner/accused

After registration of the FIR, the investigation in the case started. Apprehending his arrest in this case, the petitioner had approached the Court of Sessions at Ambala, but his application for grant of pre-arrest bail, was disposed of as dismissed.

Arguments put forth

The petitioner contended that he has since joined the investigation as per the directions of this Court while granting him interim bail; his mobile phone has been seized by the investigating agency, as such no recovery is to be effected from him and furthermore the petitioner cannot be made to suffer on account of the public comments made by various persons to the video film, which was uploaded on the You-tube. Therefore, anticipatory bail be granted to the petitioner.

Court's Observations

The Court further remarked,

"Only as a result of custodial interrogation of the petitioner, it can be found out as to how the entire act of uploading the video film on You-Tube was planned and executed, the persons involved in such acts and actual motive behind their doing that. There are grave and serious allegations against the petitioner with regard to gaining access to the secret documents concerning the national security. The matter needs to be investigated from that angle also."

Further, the Court said, merely because the petitioner has joined the investigation and his mobile phone has been recovered does not mean that he becomes entitled to grant of concession of pre-arrest bail.

Finally, the Court opined that custodial interrogation of the petitioner was required for complete and effective investigation. In case custodial interrogation of the petitioner is denied to the investigating agency, it would leave many loose ends and gaps in the investigation affecting the investigation being carried out adversely which is not called for.

Thus, finding no merit in the petition, the same stood dismissed.