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Synopsis

The Delhi High Court has recently granted two weeks of transit bail to a man who allegedly posted a video on Instagram against the people of Nagaland with the intent of inciting communal hatred, enmity, and disharmony.

The bench, presided over by Justice Amit Mahajan, while acknowledging the transcript of the video in question, noted that nothing in the video prima facie indicated the said remarks were made by the man solely because the complainant/people of Nagaland belong to a Scheduled Caste.

"While the act of the applicant may have the impact of maligning the people residing in Nagaland, the same prima facie does not appear to be for the reason that the complainant belongs to a Scheduled Caste," the bench added.

The court was dealing with the case of one Akash Tanwar, who is charged under various sections of the IPC and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The charges relate to a video he posted on Instagram, which incited communal hatred against the people of Nagaland.

It is Tanwar's case that the First Information Report (FIR) lodged against him was made with malicious intent and should be quashed. He argues that the registration of the FIR in Nagaland was an abuse of legal process and an act of harassment since he is a resident of Delhi and the cause of action arose in Delhi.

In light of the above, the court, while placing reliance on the Apex Court's judgment in Sushila Aggarwal v. NCT of Delhi, granted him transit bail, noting that "the approach of ‘transit anticipatory bail’ and ‘interim protection’ is to balance the right to life and personal liberty under Article 19(1)(d) of the Constitution of India with the fundamental scheme of administration of criminal justice, as prescribed in the CrPC."

 

The court opined that the purpose of interim protection in the form of transit bail is to allow the accused to approach the appropriate court that has jurisdiction over the matter.

"It cannot be ignored that in an age where the movement of a citizen is frequent and fast, an offender may apprehend arrest even concerning a complaint made by the complainant in one state, though the offended person may be residing in another state," it added.

Additionally, the Court noted that the provisions of the SC/ST Act are not attracted in the present case. The said social media post, which may be offensive to certain communities, does not appear to target individuals based on their caste or tribal identity. 

During the hearing, Advocate Sumit Mishra, along with others, appearing for the petitioner (Akash Tanwar), argued that no notice was served to the accused, and thus the arrest was in contravention of the procedural safeguards as laid down by the Hon’ble Apex Court in Arnesh Kumar v. State of Bihar. He further submitted that the social media post in question was general in nature and did not refer to any particular person’s caste or tribe and that provisions of the SC/ST Act can't be invoked here.

Opposing the said claims, Advocate Amol Sinha, Additional Standing Counsel for the State, along with the learned counsel for the State of Nagaland, opposed the grant of bail, arguing that the allegations against the applicant are serious and involve provisions under the SC/ST Act, which prescribes stringent punishment. He submitted that the video made by the petitioner directly targets the people belonging to Nagaland and has caused enmity between communities by commenting on the food habits of the Naga people in a highly offensive and discriminatory manner.

However, the court noted that "the prosecution has failed to demonstrate that the accused’s alleged actions were motivated by the complainant’s caste or that the casteist remarks were made with the intent to humiliate her specifically because of her caste.".

The court dismissed the petition seeking quashing of the FIR while noting that the court must prioritize the convenience of all parties and avoid conflicting rulings from multiple jurisdictions.

In order to avoid such issues, the court relied on " Forum conveniens, which allows a court to decline the exercise of jurisdiction when another forum is more appropriate to resolve the dispute, thus preventing parallel proceedings and conflicting decisions. Additionally, the principle of judicial comity—mutual respect between courts of equal standing—encourages courts to avoid conflicting rulings, particularly in cases of shared jurisdiction, to uphold fairness in the judicial process."

Lastly, the court opined that the main events leading to the FIR and the subsequent consequences occurred in Nagaland. Therefore, it holds the primary jurisdiction.

For the Applicant :Mr. Sumit Mishra, Mr. Ankit Siwach, Mr. Kapil Tanwar & Mr. Pawan Gupta, Advocates.

For the Respondent :Mr. Amol Sinha, ASC (Crl.)for the State alongwith Mr. Kshitiz Garg, Advocate. Ms. Rupali Bandhopadhya, ASC (Crl.) for the State with Mr. Abhijeet Kumar, Advocate. Ms. K. Enatoli Sema, Mr. Amit Kumar Singh, Mr. Prang Newmai& Ms. Chubalemla Chang, Advocate for R-2. SI Sachin Panwar (P.S. Fatehpur Beri).

Case Title: Akash Tanwar v. State of Delhi