The Delhi High Court on Monday dismissed a petition by CPI(M) leaders Brinda Karat and KM Tiwari challenging the trial court's refusal to direct the registration of an FIR against Union Minister Anurag Thakur and his BJP colleague and MP Pravesh Verma for their alleged hate speeches concerning anti-CAA protest at Shaheen Bagh here.
Justice Chandra Dhari Singh refused to interfere with the trial court's order and said that under the law, the requisite sanction is required to be obtained from the competent authority for the registration of FIR in the present facts.
The judge, who had reserved the verdict on March 25, noted that the Delhi Police had conducted a preliminary inquiry in the matter and informed the trial court that prima facie no cognizable offence was made out and that for ordering any investigation, the trial court was required to take cognizance of the facts and evidence before it, which was not permissible without a valid sanction.
The high court concluded that the trial court therefore rightly decided the petitioners' plea on the point of its maintainability in the absence of a sanction.
The petitioners had claimed in their complaint before the trial court that "Thakur and Verma had sought to incite people as a result of which three incidents of firing took place at two different protest sites in Delhi".
It was the petitioners' grievance that at the Rithala rally here, Thakur had, on January 27, 2020, egged on the crowd to raise an incendiary slogan -- "shoot the traitors"-- after lashing out at anti-CAA protesters.
They had further claimed that Verma had, on January 28, 2020, allegedly made incendiary comments against the anti-CAA protesters in Shaheen Bagh.
The trial court had, on August 26, 2021, dismissed the petitioners' complaint on the ground that it was not sustainable as the requisite sanction from the competent authority i.e. the central government was not obtained.
The high court said "The (trial) court cannot direct registration of FIR or investigation into an offence while exercising power under Section 156(3) of Code (of Criminal Procedure) concerning offence where the sanction is required to be taken before a court can take cognizance," "Once the investigating agency upon conducting its preliminary inquiry, has come to the conclusion that prima facie no cognizable offence is made out, the ACMM must apply its mind to direct the investigation or for registration of FIR. However, as discussed earlier, for the purpose of ordering any investigation, the ACMM in the instant case would be required to take cognizance of the facts/evidence before it, which is not permissible without there being a valid sanction," the high court said.
In its 66-page order, the high court noted that an "additional layer of scrutiny albeit discretionary" is provided under Section 196(3) of the Code by way of a sanction to avoid ordering an investigation into certain offences, including those concerning hate speeches, in a "routine manner." "If such investigations are ordered in a routine manner for the offences under Section 295-A, 153-A, and Section 505, that would lead to a situation where thousands of FIRs would be registered to settle scores against political opponents across the country. This would not only be undesirable and an abuse of process but would also result in choking of the already overburdened criminal justice machinery," the high court stated.
It further asserted that no case for exercise of the high court's writ jurisdiction was made out in view of the presence of alternate remedy under the law, including filing a revision petition before the appellate court and no fundamental or legal right of the petitioners stood violated.
The petitioners had assailed the trial court order before the high court on the ground that a cognisable offence is made out against the two leaders in the present case and an FIR should be lodged against them for their alleged hate speeches concerning the anti-CAA protest at Shaheen Bagh here and that they were only asking the police to investigate the matter.
Delhi Police had defended the trial court order, saying that it rightly held that it does not have jurisdiction to deal with the case and referred to the Supreme Court's judgements which said that if a judge is saying he does not have jurisdiction, he should not comment on merits and that is the right approach.
In the complaint, Karat and Tiwari had sought lodging of FIRs under various sections, including 153-A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.), 153-B (imputations, assertions prejudicial to national integration) and 295-A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) of the IPC.
It had also sought action under other sections of the IPC, including 298 (uttering, words, etc., with deliberate intent to wound the religious feelings of any person), 504 (intentional insult with intent to provoke breach of the peace), 505 (statements conducing to public mischief) and 506 (punishment for criminal intimidation).
The maximum punishment for the offences is a jail term of seven years.