13 Jun 2022 10:00 AM GMT
The Delhi High Court on Monday dismissed the criminal writ petition filed by CPM leader Brinda Karat and politician KM Tiwari against a trial court order rejecting their plea for registration of FIRs against BJP leaders Anurag Thakur and Parvesh Verma for allegedly delivering hate speeches in the year 2020.Justice Chandra Dhari Singh was of the view that although the writ petition...
The Delhi High Court on Monday dismissed the criminal writ petition filed by CPM leader Brinda Karat and politician KM Tiwari against a trial court order rejecting their plea for registration of FIRs against BJP leaders Anurag Thakur and Parvesh Verma for allegedly delivering hate speeches in the year 2020.
Justice Chandra Dhari Singh was of the view that although the writ petition was maintainable, the same could not be entertained in view of the settled position of law as well as judicial rulings on existence of an efficacious alternative remedy.
The Court added that the petitioners' counsel failed to follow the prescribed mechanism under the Code of Criminal Procedure.
The Court observed that the Trial Court had not entered into merits of the case while passing the order and that it had decided the complaint on the ground of jurisdiction.
It further added that the High Courts should not ordinarily as a matter of routine exercise its power under Article 226 in such matters if efficacious alternative remedy is available and that if done so, it would open pandora box for other cases.
The Court was of the view that in cases where effective alternative remedy is available, the same must be exhausted and that High Court intervention should not be exercised except in emergent cases, in the interest of justice.
The Court had reserved order in the plea on March 25, 2022. It heard Advocates Tara Narula and Adit S Pujari appearing for the petitioners.
Questioning the petitioners' counsel over the criminality attached to the alleged hate speeches, Justice Chandra Dhari Singh had orally remarked thus:
"Was the speech made in front of agitation point? That is why I am saying, Ye log, indicate to whom? Not for any particular community. Ye log can be anybody. How you can translate or think about this? There is no direct instigation. I am not on the point what it was meant for because we are in this writ petition is dealing only with legal issue."
He had added "Where is the communal intent in that speech?"
About the Case
The plea refers to various speeches made by the two politicians including the speech dated January 27, 2020 given by Anurag Thakur at a rally shouting the slogan "desh ke gaddaron ko, goli maaron saalon ko".
Reference was also made to another speech made by Parvesh Verma dated January 27-28, 2020, while campaigning for Bhartiya Janata Party and subsequently in an interview given to ANI.
The plea alleges that the speech threatened use of force to remove protestors who were protesting at Shaheen Bagh in the wake of Citizenship Amendment Act (CAA) and to promote hatred and enmity against Muslim persons by portraying them as invaders who will enter houses and rape and kill people.
On January 29, the Election Commission had issued a show-cause notice to Union Minister Anurag Thakur for his "desh ke gaddaron ko" slogan. The Commission had observed in its notice that, prima facie, the remarks had the "potential of disturbing communal harmony" and the BJP MP had violated the Model Code of Conduct and electoral law.
The Chief Electoral Officer of Delhi has also sent a report to the EC concerning the West Delhi MP from BJP, Parvesh Verma's, provocative statement on Shaheen Bagh.
Vide order dated 28th August 2020, the Trial Court had dismissed the Petitioners' application filed under sec. 156(3) of CrPC seeking registration of FIR for offences under sec. 153A, 153B, 295A, 298, 504, 505 and 506 of IPC, observing that prior sanction under sec. 196 of CrPC was required even at the initial stage, which was not obtained by the Petitioners.
It was thus the case of the petitioners that the stage of cognizance does not arise at a time when directions under sec.156(3) CrPC are given, and as such, no sanction was required under either sec. 195 or 196 of CrPC for the registration of an FIR.
Proceedings before the Court
Pujari had apprised the Court that at the time the speeches were made, people were protesting at Shaheen Bagh, Jamia Milia Islamia University and other places in the national capital.
He had argued that the insinuations made by the two politicians in their statements, clearly and automatically pointed out that the same were made against those who were protesting, especially against persons belonging to a particular community.
While the Court had asked Pujari if the people participating in the protest belonged to only one community, Pujari responded that the view painted was that only the people belonging to Muslim community were participating in the protest.
Adding to his submissions, Narula had responded that the use of words "ye log" in the speech clearly indicated that there was some kind of categorisation done by the politician.
The Court had also asked the petitioners' counsel if the speeches in question were made during the election time. While Pujari apprised the Court that the said speeches were made during the election period of January to February 2020, the Court had said:
"Was that an election speech or speech during ordinary time? Because if any speech is given during election time then it's a different time, if you're giving a speech in ordinary course, then you're instigating something. In the election speech, so many things are said by the politicians to politicians and that is also a wrong thing. But I have to see the criminality of the act. If you're saying something with a smile then there is no criminality, if you're saying something offensive then definitely. You have to check and balance. Otherwise, I think 1,000 FIRs may be lodged against all politicians during elections."
"You are also adjudicating the right to speech and all these things, lot of things against two individuals or group of individuals, that is a different thing. But when and what time, that was delivered and what was the intention. Only intention to win the election or intention to instigate the public to do the crime both are different things. Then you have to see the mens rea."
To this, Pujari had responded that if the pith and substance of the speech is taken into account, then it can be inferred that it was hate speech, irrespective of whether it was given at the time of election or not. While he said that there might not be an intention, however he added that there was certainly an instigation in the said speeches.
The petitioners had argued that the Trial Court dismissed their application seeking registration of FIR without going into the merits of the case on the ground that prior sanction was required for prosecuting the proposed accused persons.
On the other hand, the State had argued that there was no infirmity in the order passed by the Trial Court which had rightly not gone into the merits of the matter for the reason that it was of the view that it did not have the jurisdiction to do so.
Case Title: BRINDA KARAT AND ANR. v. STATE OF NCT OF DELHI AND ANR.
Citation : 2022 LiveLaw (Del) 567