Supreme Court Questions UP Police For Not Invoking Hate Crime Offences In FIR Over Attack On Muslim Cleric In Noida

In a Noida-based Muslim cleric's plea concerning an alleged hate crime, the Supreme Court today questioned the State of Uttar Pradesh as to why provisions such as Section 153 B and Section 295A of the Indian Penal Code were not invoked in the FIR lodged by police authorities in 2021.

A bench of Justices Vikram Nath and Sandeep Mehta was dealing with the plea of one Kazeem Ahmad Sherwani, who claims to have been attacked by a group over his Muslim identity. The petitioner approached the Court seeking a fair investigation and action against police officials who refused to pursue his complaint.

It may be recalled that recently, the Court reserved orders in a batch of petitions assailing hate speeches/hate crimes across the country, but kept this case pending.

Today, Senior Advocate Huzefa Ahmadi, for the petitioner, argued that the attack on the petitioner in 2021 was not an isolated incident. Rather, such incidents are repeatedly happening and there is a pattern of reluctance on the part of authorities in taking cognizance of the incidents. He emphasized that in the petitioner's case, the state is continuing to refuse registration of FIR under IPC offenses related to hate crime.

The senior counsel told the bench that after the authorities were directed to produce the case diary, an FIR was registered, but not in relation to hate crime. Rather, it related to offenses against human body, theft, etc. Ahmadi further argued that Sections 153B and 295A of IPC were attracted in the case.

Initially, Justice Nath told the senior counsel that on the general issues related to such incidents, the Court has already reserved its decision. Justice Mehta, on the other hand, opined that prima facie the offenses were not made out and suggested that the petitioner let trial court take a view.

When Ahmadi took the Court through Section 298 of IPC (Uttering words, etc., with deliberate intent to wound the religious feelings), and pointed to allegations regarding pulling of beard and cussing, Justice Mehta questioned, "how is it a religious feeling?"

The judge also noted that the prosecution under these offenses can't take place, as there is no sanction from the government in terms of Section 196 CrPC. "Even if you were to now go and pray for cognizance of these offenses, you can't do it", said Justice Mehta.

"But the FIR must be registered under those sections. It's a fairly serious case", Ahmadi responded.

Subsequently, on going through the allegations and the relevant provisions, the bench questioned Additional Solicitor General KM Nataraj (for UP) as to why an FIR was not registered for offenses prima facie made out based on allegations. The ASG explained that the same was the fault of the Investigating Officer and disciplinary proceedings had been initiated.

"Initiating enquiry is not an answer to the question as to why the offenses...what have you done after issuance of notice? Does that (disciplinary proceeding) solve the problem of non-registration of the case for the appropriate provisions? Unless you register case and seek sanction, prosecution can't go on. S.196 CrPC prohibits cognizance for these very offenses. Unless you register the case, investigate, and if offenses are made out seek sanction, how will the case proceed?" posed Justice Mehta.

Calling on the ASG to objectively answer whether FIR ought to have been registered under the two sections highlighted by Ahmadi, the judge further commented, "you may refuse sanction, but can you refuse registration of FIR?"

In response to a specific Court query, the ASG conceded that an FIR should have been registered. "Give a direction right now", Justice Mehta told him. The ASG however replied that the same can be ordered by a Magistrate.

The bench however differed and attracted the ASG's attention to some graphic details of the incident. "Only option given to you is - you will take necessary steps for registering the FIR or you want the Court to issue directions?" said Justice Nath.

When the ASG drew the Court's attention to Section 298 IPC, Justice Mehta noted that apart from utterance of words, there were allegations of certain actions which, according to the petitioner, brought in Section 295A of IPC. "You want graphic details in the order? Come back gracefully...instruct them to register the FIR and then it's your call whether to proceed or not" the judge remarked.

Ultimately, the ASG was given a week's time to obtain instructions.

Before parting, Ahmadi against pressed that such incidents are frequently happening across India and are not good for national integrity. The bench however refused to give the case "that color", with Justice Mehta noting that an individual incident had been brought before it and the Court did not have empirical evidence. "We have entertained your petition and we expect the govt to take action...we are not considering that submission. There is nothing of the sort" said the judge.

At this point, Ahmadi insisted that details of other incidents had been provided in the petitioner's petition, but the bench was not convinced.

Case Title: KAZEEM AHMAD SHERWANI Versus THE STATE OF UTTAR PRADESH AND ORS., W.P.(Crl.) No. 391/2021