Delhi HC quashes trial court's FIR order against VHP leader over 'hate speech'

Justice Swarana Kanta Sharma allowed the petition filed by Kumar challenging the trial court's February 18, 2020 order.

The Delhi High Court on Friday set aside an order which had directed lodging of an FIR against VHP leader Alok Kumar in a case of alleged hate speech of 2019, saying no evidence of communal disharmony had come on record.

The high court quashed the February 2020 order of a magisterial court which had directed that the FIR be lodged on the basis of a complaint and application filed under Section 156(3) CrPC against Kumar by activist Harsh Mander.

It said continuation of criminal proceedings against the petitioner would result in abuse of process of law and miscarriage of justice and that FIR in such cases may rather ignite communal harmony among people.

"The magisterial courts have to remain vigilant and conscious that in cases such as present one, directing registration of FIR without going through the facts of the case and the report filed by the police may rather ignite communal disharmony among the residents of concerned area as no disharmony or communal riots had taken place despite the incident of vandalism of idols of Hindu gods and goddesses...," Justice Swarana Kanta Sharma said, in a 73-page judgement.

The court noted that in 2019, the matter had been resolved amicably between the members of two communities and a separate case of vandalism already stood registered and accused persons were under trial.

It noted that the members of one community, who were allegedly the target of purported hate speech, had collectively requested the police officials not to pay heed to any frivolous or malicious complaint filed regarding any alleged hate speech or danger of riots, as both the communities were living in perfect harmony within the same locality.

Kumar had sought to quash the trial court's direction to lodge an FIR against him, saying the complaint was purely malicious and motivated, questioning his patriotism and injuring his reputation without any reason.

The grievance of Mander relates to an incident of July 9, 2019 when a public meeting was organised by Vishwa Hindu Parishad at Lal Kuan, Hauz Qazi here, where one 'swami' from Kashi had delivered a speech, alleged to be provocative.

Mander filed a complaint with the police alleging that the remarks made by the unknown swami in his speech were prima facie designed to provoke riots, promote enmity and ill-will between communities and were prejudicial to national integration.

He later filed an application before the trial court seeking lodging of FIR against the swami and Kumar on the ground that he was the international working president of VHP which had organised the public meeting.

The high court said even if it is presumed that the meeting had been organised by the petitioner, which is not even alleged by the complainant, it could not have been held that it amounted to commission of an illegal act simply because one of the participants delivered an alleged hate speech during a public meeting.

It said Mander had not levelled any allegation against the petitioner in the complaint which he submitted with the police officials and the single line averred against Kumar does not constitute any offence against him.

"The records of the case reveal that the present case is not a case of lack of sufficient evidence against the petitioner, but rather a case with no incriminating material whatsoever against him," it said.

The high court noted that the allegations levelled by Mander pertain to an alleged hate speech delivered by the swami and as there is no concept of vicarious liability in criminal law, initiating criminal proceedings against the petitioner would undoubtedly constitute an abuse of the legal process.

It said the magistrate's order reflects lack of application of judicial mind and absence of reasons brings into question the propriety of an order being not based on judicial precedents and material on record for its conclusion.

"The courts should embrace the method of passing a reasoned order based on judicial precedents and law as well as the material placed before it, which is reflected in its order or judgments.

"Through such reasoned orders, the courts can order for registration of FIR against persons who cross criminal boundaries without lawful justification, or conversely, reject such applications where it seems that the accused or proposed accused can be a possible victim of abuse of process of law by initiation of criminal proceedings," the high court said.

It added that a person cannot be made to face criminal trial for the criminal acts he has not committed.

"Undoubtedly, inflammatory speeches will attract criminal provisions of law and such sensitive matters need to be dealt with carefully so that an order of the court does not end up in creating divide rather than unite the people," it said.

The high court said it was constrained to observe that the magisterial power may be "unlimited" but it is "not unfettered" and should be used not only with utmost caution and vigilance, but also with circumspection after carefully going through the contents of the complaint and the action taken report of the police.

It observed that there is no place for hatred or communal disharmony in a civilised society and in a country like India, all the communities have always respected each other and have lived a harmonious life.

"There is neither any place for hate speeches by any community against any person or place, nor there is any place for vandalism of idols or religious places of any community. At the same time, the right of every person to be protected from malicious prosecution also has to be guarded and it is to be ensured that FIRs be not directed to be registered in absence of any material on record, in casual and trivial manner without recording satisfaction about commission of cognisable offence...," Justice Sharma said.

The court said disturbing communal harmony, national integrity and promoting enmity between different groups are serious charges against any person, whose patriotism and credentials as a well meaning citizen of the country are questioned by registration of an FIR.

"This court also notes that non-discrimination is the hallmark of the judiciary, and courts have never taken issues concerning communal peace lightly since tolerance of cultural and religious values of different communities are key to the success of nation building," it observed.