6 Feb 2023 3:01 PM GMT
The Supreme Court on Monday expressed dissatisfaction at the laxity shown by the Uttar Pradesh Police in registering an FIR in the Noida hate crime case of July 2021, in which a 62-year old Muslim man complained that he was pulled inside a car by a group of four men, was beaten up, pulled by his beard, assaulted and communal slurs were hurled against him.The Court noted with "distress" that...
The Supreme Court on Monday expressed dissatisfaction at the laxity shown by the Uttar Pradesh Police in registering an FIR in the Noida hate crime case of July 2021, in which a 62-year old Muslim man complained that he was pulled inside a car by a group of four men, was beaten up, pulled by his beard, assaulted and communal slurs were hurled against him.
The Court noted with "distress" that the FIR was registered only on January 15, 2023, almost one and a half year after the date of the incident- July 4, 2021. The Court further noted that the FIR was registered only after the last date of hearing(January 13), when the Court had directed the State of UP- which had been denying that it was a hate crime- to produce the case diary.
On Monday, a bench comprising Justices KM Joseph and BV Nagrarathna heard the matter for over ninety minutes from 4.15 PM, beyond the regular sitting hours.
Senior Advocate Huzefa Ahmadi, appearing for the petitioner, submitted that immediately after the incident, he went to the nearest police station in Noida, Uttar Pradesh. However, his complaint was not registered by the police. He had to run from pillar to post. He later had to move the Supreme Court and yet the State of UP never accepted that there was a hate crime aspect involved in the entire incident and neither was an FIR registered in the case.
It was also pointed out to the court that the first reply by the State of UP said that this was a false case.
Ahmadi said, “First you denied that this incident ever happened and did not register an FIR, then after a year in July 2022, the State of UP in its first counter said this is a false case. Then this court ordered for production of the case diary. Then another counter affidavit was filed…It was only after the order passed by this court for production of the case diary that the FIR was registered after one and a half years on 15-01-2023…even that FIR is a diluted FIR since most of the offences are bailable barring one. 153A which is a stringent section is not added, section 295A would be attracted. Other provisions such as 362, 365, 501, 505(1)(c) these are all attracted in the FIR.”
Ahmadi later also stressed, “They are yet to probe the incident but continue to deny any hate crime angle involved. What investigation can we expect at all from them? Let me assume for a moment against myself that there was no hate crime involved, but why was an FIR not lodged on the morning of the 4th(July 4, 2021) when the petitioner visited the police station? There was at least the commission of a crime.”
The State of UP had submitted an affidavit suggesting to the court that the incident was not a hate crime but was carried out by a gang known as "screw driver gang" and that there is no religious angle involved in the case.
Ahmadi pointed out that the complaint shows elements of hate-crime but yet the State was maintaining denial. “This sort of affidavit is being filed by a functionary of the State of UP before this court. How do I expect a fair investigation from them? There is really no will to prosecute. There is enough evidence to prove this.”
Some lapses are there, UP concedes
Additional Solicitor General KM Natraj appearing for the State of Uttar Pradesh started off by conceding that there were lapses on the part of the state police and that necessary disciplinary action would be taken against the guilty officials. He said that such incidents cannot be encouraged. He also further informed the court that an inquiry committee had already been set up and an inquiry is currently undergoing.
“We have formed an SIT and started an inquiry and also we presume there was a crime. 8 cases have been registered against this gang. This is their routine way of acting. They do this in this particular manner. They were arrested by the State police. They have been granted bail by the High Court.”
When the bench, during today’s hearing, asked Ahmadi to explain what a hate crime was, as it had not been defined under the Indian laws, Ahmadi said, “if an abuse is made on on the basis of religion, caste etc..then it is hate crime as per the Tehseen Poonawaala judgment.”
At this point Justice Joseph stopped Ahmadi and asked, “what do you want from us?”
Ahmadi replied and said that he was seeking for three specific reliefs. “Firstly, I want a declaration that the state of Uttar Pradesh must be held guilty of committing a constitutional tort in the sense that it has failed to protect a citizen and implement the rule of law. The minimum of rule of law is registering of an FIR. There is complete violation of breach of care in this case. Secondly, in this case your lordships should set an example and there should be some kind of reparation by the state of UP as this court may deem fit which is justiciable to some extent. Finally, all stringent sections have been eschewed from the FIR for reasons not too difficult to see. FIR says hate crime but in additional affidavit they say no hate crime…there is no will to prosecute…,in that case the arms of this court is broad enough to ensure that prosecution is done.”
Justice Nagarathna then asked Ahmadi, “why have you come before the Supreme court under article 32 and not invoked the general law?”
Ahmadi replied and said, “there is now a pattern in some states concerning some religious identity and this is being reflected by the attitude of the state machinery. The bench had observed in the last hearing that this case would be taken up as a test case and that is why I am arguing before your lordships.”
Justice Nagarathna then remarked, “This petitioner at least has the wherewithal to approach the Supreme Court at least and thus we cannot say that this case is a Pan India one and it cannot be symptomatic of what is happening across India. We don't want tomorrow to flood this court.”
Ahmadi replied and said, “…then the state has to act fairly. You have a case live in front of you where I approached in July 2021 and the FIR is registered in January 2023 that too after an order is passed by this court.”
Justice Nagarathna then asked, “there has been progress after filing of the plea…now what? You say pattern...what kind of guidelines can we lay down now in this case?”
No space for hate-speech in secular country- important Remarks made by Justice Joseph
Justice Joseph during the hearing orally remarked, “There is no space for hate crime in a secular country. It’s a constitutional obligation cast on the state. Protecting citizens is the primary duty of the state."
Justice Joseph further noted, "When you create a climate where you foster hate crime, encourage it, do not prevent it, then it becomes a very serious thing. That has to be rooted out from our lives. There is absolutely no room from this…if it is a hate crime, we have to face it frontally and take swift action... we cannot whitewash this.."
Noting that officers did not register the FIR of the petitioner victim, Justice Joseph remarked, "Action of every state officer augments respect for the law otherwise everyone will take law in to their own hands."
He further said, "When you impact Rule of Law, the impact is on society, its politics and most importantly the economy…one of the reason why the rupee fluctuates, in economic theory, they say its law and order. Law and Order has impact on currency. We have to stop it."
'If you ignore hate-speech, one day it will come for you'
When ASG Natraj said that hate crime did not have anything to do with religion, Justice Joseph orally remarked, "We recently saw the gruesome murder in Rajasthan. A dumb person was continuously clobbered and then it was found that he was a Hindu."
Justice Joseph, almost sounding the alarming bell, said to ASG Nataraj, "If you ignore this then one day it will come for you. No problem for the protected class…but it affects the common man…we cannot compromise in their security. Will you not acknowledge that there is a hate crime and you will sweep it under the carpet? I am not saying anything adverse.. we are only expressing our anguish. Be in minority or majority, certain rights are there which is inherent in human beings. You are born into a family and raised in one..but we stand out as a nation.. you have to take this seriously. Now that you are appearing, I hope it is taken to logical conclusion. Set an example that such officers cannot get away with dereliction of duty... then only we come at par with the developed nations and what not."
On the issue of hate speech, Justice Joseph noted, "Solutions can be found only when you recognize the problem…first step is recognising and acknowledging the problem. If there is a problem then the law provides a solution. There is a growing consensus around hate speech…"
On the facts of the case, Justice Joseph said, "if a person comes and says that I am wearing cap, I am Muslim, I have been accosted and beard is pulled treated in this way and still no complaint is registered.. then its a problem. The victim says that he was beaten and verbally abused. He says that his beard was pulled multiple times. Beard is a sign of religious belief and practise. That is a give-away that it is a hate crime. There is verbal abuse as well as the pulling of the beard shows something. Whatever this man has said, the police has not faithfully recorded what you say because they are under fear that you might be acting against the powers that be."
Justice BV Nagarathna also orally remarked, "mindset of the police also.. someone who is coming to lodge the FIR they cannot be treated in a disparaging manner... they should not be made the accused just because they have come to register the FIR."
ASG Nataraj, opposing the argument that hate speech was involved in the incident, said, "No such hate crime was divulged to the Delhi police... even under CrPC if police does not register a case, he can go to the SP for registration of case...admittedly he leaked it to the media and said there was hate crime and tried to take advantage of this entire thing. The intention of the victim was something else in the entire case. The continuous conduct of the petitioner needs to be looked into.”
The bench also asked the ASG, "we want to know the FIRs about the incidents of the same incidents by the same gang…what actions have you taken against them…file an affidavit saying what happened in all those cases and produce all these FIRs. we want to know the progress in terms of the SIT too that has been constituted."
The bench ordered, "ASG fairly acknowledges that FIR of 2023 registered on Jan 15, 2023. We do note with some distress that it comes late in the day since info for FIR was furnished on 5 July 2021. Stand of the State of UP is that what happened is not a hate crime but a series of hate crimes committed by a gang called as screwdriver gang. First FIR was lodged on 26.6.2021 and crime was committed in this case on July 4. 2021. It was said the same gang had committed the offence in September and October also and that punitive action has been taken. We direct UP to produce FIRs mentioned in the additional affidavit. Affidavit should indicate as to when persons involved in June 2021 were apprehended and when they were bailed out."
At the end of the hearing, noting that the court was blessed with the powers under Article 142 of the Constitution, Justice Joseph inquired from Ahmadi if the petitioner-victim would be willing to oral evidence in the top court.
Ahmadi replied and said, “I would be delighted to do that. Infact what better forum for me.”
ASG Natraj also submitted that he would have no concern if the court decided to do so. "Let the truth come out, not only the officials but also the conduct of the petitioner has also to be gone into", he said.
"Yes, you can prosecute me if I have made a false statement", Ahmadi replied.
In the last hearing, the court had asked the State of UP to produce the records of the case before the court.
The matter will next be heard on March 3, 2023.
KAZEEM AHMAD SHERWANI vs STATE OF UP W.P.(Crl.) No. 391/2021
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