Bombay high court quashes FIR against activist who campaigned to save Aarey trees

MUMBAI: Backing the democratic right of citizens to protest, the Bombay high court has quashed a 2018 FIR against the director of an online campaign organiser who was booked for messages sent to the then Mumbai Metro Rail Corporation managing director Ashwini Bhide to save Aarey trees.
“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.If then it 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. Such an effort by any complainant, however high he or she may be in position, cannot be countenanced and must be stopped," said Justices Sunil Shukre and Milind Sathaye on April 5.
Bangalore resident Avijit Michael (then 34) of Jhatkaa.org moved HC to quash the January 18, 2018 FIR lodged by Bandra-Kurla Complex police station on a complaint by Sanjay Dani (then 67).
He was booked under IPC section 186 (obstructing public servant in discharge of public functions) and sections 43 F (blocking access to computer/network) and 66 (computer related offences) of Information Technology Act.
In December 2017, Aarey Conservation Group started a campaign on the Jhatkaa’s website to save Aarey from being destroyed by the Metro 3 car-shed.
The FIR alleged that misleading messages were circulated on social media to raise voice and ask Bhide and then CM Devendra Fadnavis to look for alternatives.
Bhide received messages on her mobile phone and it became difficult for her to perform her official functions.
On May 7, 2018 Avijit was arrested and released on bail.
On November 18, 2019 HC restrained the police from filing chargesheet.
Agreeing with senior advocate Gayatri Singh and advocate Vijay Hiremath, for Michael, the judges said the allegations prima facie do not constitute offences under section 186 or sections 43F and 66.
They explained that to constitute an offence under section 186 the obstruction must have “direct connection” with the discharge of an official’s public functions.
Also, “it is for that public servant to come forward and allege the obstruction.”
The judges said the allegation is messages were received on Bhide’s official phone and when she blocked the number she received messages from a different mobile number.
“This is how, in the opinion of the complainant (Dani) Smt. Ashwini Bhide was obstructed in discharge of her public functions. But, Smt. Ashwini Bhide does not herself come forward and make any such allegations," they noted, adding that Dani did not say he received a complaint directly from Bhide.
The judges said no efforts were made by the investigating officer to find out Dani’s source of information and “it is still not known whether information available was sufficient to disclose commission of cognisable offence so necessary for registration of FIR’’ in accordance with Criminal Procedure Code.
They found that the alleged offending messages do not show that the sender intended to obstruct Bhide or had knowledge it would obstruct 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,” they said. They added that the sender had stated that “Aarey Forest was a green lung for the city of Mumbai just as Cubbon Park is for the city of Bangalore” and, therefore, pleaded with Bhide to look for alternatives so that nearly 3500 trees can be saved.
Re-producing four messages in the order, the judges said it is clear that Michael had acted in a bona fide manner on the basis of what he believed to be an act necessary for maintaining the health 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," they added.
The judges said "upon such a complaint, as the one involved here, police must never book any ordinary citizen of the country under criminal law and if it does, it would be like suppressing his voice against what he considers to be a wrongful thing. They quashed the FIR with a “necessary caution” to the IO “to be careful in registering crimes in such matters in future."