Thread by @barandbench

#BombayHighCourt will shortly begin hearing Sunaina Holey’s plea seeking quashing of FIRs registered against her for tweeting a video allegedly promoting enmity between two communities.

@SunainaHoley
@MumbaiPolice

Bench of Justices SS Shinde and MS Karnik will continue hearing Sr Adv Manoj Mohite.

Hearing begins.

Mohite continues his submissions.

He points out that the most important aspect of the judgment in Amish Devgan is what should be considered by the Court when considering quashing of FIR under Section 153-A.

Mohite: I am just trying to point out that in a case of FIR where the offence is made out prima facie. What happens when the Court does not see anything prima facie?

Does the court quash it? Or does it need to consider something else.

Read judgment here: images.assettype.com/barandbench/20…

Mohite: I will point out how do you judge the intention of a person accused.

Mohite: There was undoubtedly a law and order situation at that time. Milords may keep this in mind.

Mohite: This talks about the clapham omnibus test - the who factor, the targeted and non-targeted group, the context and occasion factor, the time and circumstances in which the words or speech was made, the state of feeling between the two communities, and the proximate nexus.

Mohite: The country was in turmoil. Throughout the country there was public order situation, especially at Bandra station. One Muslim man tried to address the crowd. We do not know if the crowd was only Muslim or mix religion.

Mohite: There was a bandobast on the next day, so there was definitely a public order situation.

3 FIRs were registered against the public. FIRs were registered against the unknown persons who collected that day to create havoc.

Mohite: This tweet made it look like the gathering was all Muslim, trying to blame the PM.

FIR was filed against @SunainaHoley by a police officer appointed speficially to monitor the handles.

Mohite: Plus @SunainaHoley’s profile was checked.

Court: What about the crowd? Is her role post..?

Mohite: The crowd had gathered from the morning. Her tweet was not responsible for gathering of crowd.

Mohite: The tweet was not necessary. It did not have to do anything with the crowd gathering, but it was not necessary.

Saying singe source is enough to spread and all..

Police officers had to be deputed on the next day.

Court: Whether anything happened at any other place?

Court: Someone was addressing and then someone interpreted. So tweet was made by her. So was it because of her tweet that circumstances aggravated?

The tweet is very short, perhaps according to you it conveys the meaning.

Mohite: Milords the tweet was retweeted.

Court: Then what happened?

MOhite: That is why I read the judgment, it is being investigated.

Court: ultimately we have to view it from the strong man point of view.

Court: We have to check it from a prudent mind point of view.

Mohite: That is what I am trying to point out from the Section. What was the circumstances, the audience targeted, etc.

Milords may kindly look at the section.

Corrigendum*

Court: We have to check it from a prudent man point of view.

Mohite: The entire judgment of Amish Devgan does not discuss what happened due to his statements.

Court: But the facts are slightly different.

We always say that freedom of expression and dignity of posts, whichever post, the dignity should be maintained.

Mohite: Kindly see what happens with tweets in USA. The largest democracy.

We should be thankful for our authorities.

In Amish Devgan’s case, there were 7 FIRs for the same incident. We also had 3 FIRs.

Mohite: She had tweeted something derogatory previously, and then the police had written to twitter to take it down. So it not that police is vindictive.

Court: We are only asking if her tweet led to some chain reaction, only as a matter of fact. Prior and subsequent.

Mohite: This was migrants issues. There was utter chaos.

You take what one person has said and then highlight about the whole community. What was the need for mentioning Masjid?

Court: Mr. Mohite we are only in dialogue. Our minds are fresh.

Mohite: That is the best part of this court. I apologise for taking so long.

Court: We do not want Advocates to feel that they were not heard.

Mohite: We never feel that with the court.

Court: We never realised that 40 minutes are over. It just felt like 10 minutes.

Court: The arguments were that fresh and crisp.

We are being candid with you two, we also cannot research on every matter that we hear, so you both assisted us ably.

Mohite: Milords are being very humble is all I can say.

Court (to Advocate Abhinav Chandrachud): You can take 5 minutes more, as your friend took 5 minutes less.

Mohite concludes his submissions. Chandrachud begins his rejoinder.

Chandrachud begins with the question put by the Court - what is the harm that is occurred.

Chandrachud gives his rejoinder on the Amish Devgan FIR.

Chandrachud: This is the case where the statements made by the petitioner were very extreme against a religious head.

My Ld. Friend’s statements that there were no two communities involved was incorrect.

Chandrachud: He rightly mentioned the test for quashing of FIR in 153-A.

There is a crowd shouting that there is COVID spreading, the PM is irresponsible.

It has been 9 months, the police have not been able to point out any untoward incident.

Chandrachud: She did not say anything about the trains, or anything on Tablighi Jamaat, or any community leading to spread.

As my friend pointed out there was a tweet put by some Shefali Vaidya who said it was by a community.

So the onus is on her, not on me.

Chandrachud: I cannot be held responsible for something someone said by distorting what I said.

On the point of influence, Ld. Friend mentioned that since I have 20k followers, and I am ‘professional tweeter’ something I do professionally, I want to test this argument.

Chandrachud points out accounts who have followers.
@McDonalds , @MadOverDonuts , @kfc , @poojadhingraa .

Then there are individuals who had more followers than her.

All political leaders have twitter accounts. There are 12500 tweets by Minister of Environment - @AUThackeray.

Chandrachud: That does not make him a professional tweeter. He may have tweeted 10 tweets, those may have been retweeted that many times.

That does not make him a professional tweeter.

Chandrachud: SC has not diluted the test in Amish Devgan judgment.

In @SunainaHoley’s tweets, she has referred to one community, not two and that too to point out that it is a mosque just for the location.

Chandrachud concludes his submissions.

Court mentions they had able assistance from both sides. They ask both parties to submit their written submissions within a week’s time.

Matter reserved for orders.