The Delhi High Court on Friday reserved its judgment on a plea filed by CPM leader Brinda Karat and politician KM Tiwari against a trial court order rejecting her plea for registration of FIRs against BJP leaders Anurag Thakur and Parvesh Verma for allegedly delivering hate speeches in the year 2020.
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.
The Court today heard Advocates Tara Narula and Adit S Pujari appearing for the petitioners whereas Amit Mahajan appeared for the State.
Questioning the petitioners' counsel over the criminality attached to the alleged hate speeches, Justice Chandra Dhari Singh 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 added "Where is the communal intent in that speech?"
At the outset, Pujari 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 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 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.
To this, the Court orally remarked thus:
"Where is that material? Because if you're saying that protest is only for one particular community and not other community who is supporting the agitation, are you suggesting that?"
"If you're arguing that, if that particular agitation was meant for a particular community and therefore if he has given any speech about that agitation indicating only about one community, if that agitation is supported by all other citizens of this Country, then how can you say that such kind of statement is given by two gentlemen for the purpose of only one community?"
To this, Pujari replied that according to them, the speeches were made against both, class of protestors and community of persons.
Adding to his submissions, Narula 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 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 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 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.
"I am not saying anything. Only I'm saying, sometimes people say something. I'm not on this case but general for better adjudication of this case. If you are saying something, suppose you've said something only for creating mahaul and all these things, I think mens rea because political parties say something else other political parties say something different. Everybody is addressing their constituencies," the Judge orally responded.
The petitioners 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, Mahajan appearing for the State 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.
According to Mahajan, the judgments of the Apex Court clearly state that where a Court is deciding on the aspect of jurisdiction, it is not for the said Court to comment on the merits.
"Probably that is the approach which was adopted by the learned judge," Mahajan argued.
Refuting the arguments made by the petitioners, Mahajan submitted thus:
"The issue is because the offences involved are sec. 153A, 153B, 295A, 505 etc, sanction is required under sec. 196 CrPC and not sec. 197 CrPC. Sec. 196 CrPC has nothing to do with public servants."
He argued that sec. 196 of CrPC carries with itself a greater threshold than the Prevention of Corruption Act thereby ensuring greater safeguards.
"This case is not of sec. 197 CrPC or of PC Act, this is a simple case of whether a Magistrate can order registration of FIR without there being a sanction," he submitted.
Hearing the parties, the Court reserved it's judgment.
