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Synopsis

The Allahabad High Court on Friday, April 19, refused to quash a case against one Owais Khan, accused of posting derogatory remarks and photos of a Shivalinga on social media platforms. Court found Owais's act indicative of a deliberate attempt to inflict harm and offend the religious sensibilities of others.

The bench of Justice Prashant Kumar said, "Such actions cannot be excused as mere expressions of opinion but must be recognized for what they are: deliberate acts of religious vilification there as a deliberate attempt to insult and hurt the sentiments of a particular community".

The FIR against Owais was registered in June 2022 under Sections 153-A, 295-A of the IPC and Section 6 of the Information Technology (Amendment) Act at Chharra police station in Aligarh, Uttar Pradesh. 

Allegedly, along with the derogatory remarks and photos of Lord Shiva, Owais posted a comment suggesting that the road divider was treated as a Shivling. Additionally, he purportedly used derogatory language targeting Hindu society. The trial court took cognizance and issued summons against Owais in January 2023. 

Owais moved a plea under Section 482, CrPC before the high court to quash the order of the trial court as well as entire proceedings.

His counsel argued that he had been falsely implicated as his social media account had been hacked. Moreover, the counsel contended that even if it was assumed that the comment had been posted, it still did not constitute any offence.

The comment is rather an innocuous statement made without intending to hurt religious feelings of any community, Owais' counsel argued. 

The plea was vehemently opposed by the government counsel who argued that Owais' comment was outrageous and had hurt the religious sentiment of Hindu community.

The high court held that the claim of hacking of Owais's account related to the disputed question of fact, which could not be adjudicated in an application under Section 482, CrPC. 

Regarding the defence of freedom of speech taken by Owais, court said that in India freedom of speech is not absolute, rather it comes with responsibilities, foremost among them being the obligation to respect the sentiments and beliefs of others.

Court said that Owais' actions, which demonstrated a blatant disregard for religious sentiments, could not be viewed as mere inadvertence but a deliberate affront to the cherished values of country's pluralistic society.

"By making a mockery of a community’s beliefs and comparing them to mundane objects, the accused has displayed a callous disregard for the deeply held beliefs and sentiments of millions," the high court held. 

Stressing that Owais' action sought to mock and ridicule the religious beliefs of others, court asserted that it is for the judiciary to send a clear message that such conduct will not be tolerated and will be met with appropriate legal consequences.

Further, court outlined Article 51A of the Indian Constitution which states fundamental duties of every citizen. This article underscores the obligation of citizens to foster an environment of mutual understanding and respect for diverse religious beliefs and identities, court said. 

Court held that Owais' actions of promoting enmity between different groups on the basis of religion and causing disharmony within society, contravened the spirit of this constitutional provision.

Concluding the matter, court held that this matter was not a case of hypersensitivity, rather "a matter concerning the sanctity and reverence attached to religious symbols by individuals who hold them divine".

Court opined that it could not be said in the present matter that prima facie, no offence was made out against Owais. It also did not fell under the guidelines laid down by the Supreme Court under which the inherent powers granted under Section 482 CrPC could be exercised.

Hence, court dismissed Owais' petition while clarifying that any observation made in the order would not come in the way of the trial and the trial court would proceed purely on merits.

Case Title: Owais Khan v. State of U.P. and Another