Messages Sent to IAS Officer Against Tree Cutting at Aarey Not Offensive but Assertion of Citizen’s Democratic Right: HC

Messages sent to an IAS officer opposing the cutting of trees in Mumbai’s Aarey Colony for the construction of a Metro Rail car shed were not offensive, but were assertion of a democratic right of a citizen of this country to put forth his view to object and protest, the Bombay High Court has said.

A division bench of Justices Sunil Shukre and Milind Sathaye noted that registering a first information report (FIR) for such an offence would amount to an invasion on the rights of citizens of this country.

The bench on April 5 quashed a January 2018 FIR registered at the suburban Bandra Kurla Complex (BKC) police station against Avijit Michael, a Bengaluru resident, for allegedly sending offensive messages to IAS officer Ashwini Bhide, who at the time was heading the Mumbai Metro Rail Corporation Ltd (MMRCL), and for allegedly obstructing her from discharging her public duties.

The court in its order said the intention of the sender of these messages appears to be to protect the forest, which he considers to be acting like lungs for 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 a citizen of this country to put forth his view point, to object, to protest, to persuade, to urge, and so on,” the court said.

If anybody is booked for criminal offences such as those as have been registered against the petitioner, it may amount to an invasion upon the rights of the citizens of this country, the court said.

The police upon receiving such a complaint, howsoever high he or she may be in position, must never book any ordinary citizen of the country under criminal law, it added.

“…and if it does, it would be like suppressing his voice against what he considers to be a wrongful thing,” the court said.

The bench while quashing the FIR issued a warning to the concerned police officer.

“The investigating officer, who registered the crime against the petitioner, is hereby cautioned to be careful in registering crimes in such matters in future,” the court said.

The bench in its order noted that the allegations made in the FIR, when taken at their face-value, do not, in any manner, constitute the offence punishable under section 186 (obstructing a public servant in discharging their public duties) of the Indian Penal Code (IPC) and the provisions of the Information Technology Act for sending offensive messages.

“It is necessary that there must be a public servant who is voluntarily obstructed by another in discharge of his public functions and such obstruction must have direct connection with the discharge of public functions of such public servant,” the court said.

The bench noted that it is for the public servant who has been obstructed in discharge of his public functions to voluntarily come forward and allege the obstruction.

The allegation in the present case is that the petitioner and others had caused obstruction to Bhide.

The MMRCL had at the time proposed to cut trees at the suburban Aarey Colony for the construction of Metro car shed, which was protested by environmental activists and several others.

The allegation is that Michael sent Bhide certain offensive messages on her phone, which were construed as causing obstruction to her public duties.

The bench noted that Bhide herself has not come forward and made these allegations and the FIR is lodged by a city resident.

It added that the alleged messages sent to Bhide do not show that the sender had intended to obstruct her from discharging her public duties.

“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,” the order said.

The sender had stated that the Aarey Forest was a green lung for the city of Mumbai just as Cubbon Park is for Bengaluru and, therefore, the sender has pleaded with Bhide to look for alternatives so that the trees can be saved.

It would be clear from the above referred messages that the sender 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 Mumbai, the order said.

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