The court cautioned the police to never book any ordinary citizen of the country under criminal law on spurious complaints; if it does, it would be tantamount to suppressing their voice against what they consider to be a wrongful thing.
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THE Bombay High Court on Thursday quashed a first information report (FIR) against the director of a campaigning organisation who was sought to be prosecuted for obstructing the discharge of public duties by bombarding Ashwini Bhide, a Member of the Indian Administrative Service, who was at the time working as Managing Director of the Mumbai Metro Rail Corporation, with thousands of calls and messages to save the Aarey forest.
A division bench of Justices Sunil B. Shukre and M.M. Sathaye found that no case was made out against the petitioner, Avijit Michael. It also cautioned the investigating officer to be careful in registering crimes in such matters in the future.
Background
Michael allegedly sent the following messages to Bhide:
- “Cubbon Park is considered the lung of Bengaluru so is Aarey forest for Mumbai. 3500 trees in Aarey forest will be cut to build a metro car shed, if we don’t RAISE OUR VOICE. Ask CM Fadnavis & Ashwini Bhide, MD of Mumbai Rail Corporation to look for alternatives. MISSED CALL 08030630959.”
- “Today Mumbai’s green lungs need your help. 3500 trees in Aarey forest will be cut to build a metro car shed if we don’t RAISE OUR VOICE. Ask CM Fadnavis & Ashwini Bhide, MD of Mumbai Rail Corporation to look for alternatives. MISSED CALL 08039513512.”
- “Please FWD to 5 friends – Join 1.8 lakh Indians to protect MUMBAI’S LUNGS. Ask CM Fadnavis & Ashwini Bhide, MD of Mumbai Rail Corporation to look for alternatives before even 1 tree of 3500 trees in Aarey forest gets cut for building a metro car shed. MISSED CALL 02233492100 – Jhatkaa.org”
- “Aarey forest is considered the lung forest for Mumbai. 3500 trees in Aarey forest will be cut to build a metro car shed if we don’t RAISE OUR VOICE. Ask CM Fadnavis & Ashwini Bhide, MD of Mumbai Rail Corporation to look for alternatives. MISSED CALL 08030630959.”
These messages resulted in an FIR against the petitioner under Section 186 (obstructing public servant in discharge of public functions) of the Indian Penal Code, and Sections 43(f) (penalty and compensation for damage to computer, computer system, etc.) and 66 (computer related offences) of the Information Technology Act (IT Act). It was alleged that these messages obstructed Bhide, who was at the time working as Managing Director of the Mumbai Metro Rail Corporation, which was then engaged in the construction of a car shed in land belonging to Aarey Dairy, and this work envisaged the cutting of several trees.
Interestingly, Bhide herself never filed any complaint against Michael. However, one Sanjay Balkrushna Dani filed a complaint alleging that Bhide was being obstructed from discharging her public functions.
The court thus noted, “[T]he complainant … has not stated in his FIR that he had received information regarding commission of the said offence directly from Smt. Ashwini Bhide. There is nothing on record which shows that Smt. Ashwini Bhide had written to the [complainant] and informed him about the alleged obstruction being caused to her by the person sending messages to her from certain mobile number, which is alleged to be belonging to the petitioner.“
It further noted that “no efforts to find out the source of information [of the complainant] regarding commission of this cognizable offence has been made by the Investigating Officer and, therefore, it is still not known as to whether or not there was any such information available as was sufficient to disclose commission of a cognizable offence so necessary for registration of the FIR in accordance with the provisions of the Code of Criminal Procedure, 1973.”
Ruling
After examining the contents of the messages sent to Bhide, the court opined that those messages did not by themselves show that the sender of those messages had at any point of time intended to obstruct Bhide, or had any knowledge that by those messages, he would create the effect of obstructing Bhide, from discharging her public functions.
“These messages show at their face-value that the sender of the messages was the person who had intention to make efforts for preservation of the trees in the larger interest of society. He had stated in those messages that Aarey Forest was a green lung for the city of Mumbai just as Cubbon Park is for the city of Bangalore and, therefore, he has pleaded with Bhide to look for alternatives so that the trees, which he has stated to be about 3,500 in number, could be saved,” the court underscored.
The court thus held that it was clear from the messages that Michael had acted in a bona fide manner, on the basis of what he believed to be an act which was necessary for maintaining the health of the city of Mumbai.
“His intention appears to be to protect the forest, he considers to be acting like a pair of lungs for the city of Mumbai. These messages do not contain any offensive material or any obscenities. Rather, they appear to have been sent in assertion of a democratic right of citizen of this country to put forth his view point, to object, to protest, to persuade, to urge, and so on. It then follows that if anybody is booked for criminal offences such as those as have been registered against the present petitioner, it may amount to an invasion upon the rights of the citizens of this country,” the bench added.
The court said that upon such a complaint, the police must never book any ordinary citizen of the country under criminal law; if it does, it would be tantamount to suppressing their voice against what they consider to be a wrongful thing.
Regarding the alleged offence under the IT Act, the court found that by no stretch of imagination was any offence punishable under Sections 43(f) or 66 of the IT Act made out.
“For Section 43(f) offence, there has to be some denial of access to any person authorized to access any computer or computer system and for an offence punishable under Section 66, something must have been done dishonestly or fraudulently, and that something must relate to accessing any computer or computer system or unauthorized downloading or copying of computer data or other similar acts. By sending the alleged offending messages, none of these acts can be said to be committed by the petitioner. Therefore, even for these offences, no prima facie case is made out against the petitioner,” the court held.
In November 2019, the high court had restrained the police from filing a charge sheet against Michael without its approval.
Click here to view the Bombay High Court’s full judgment.
