TMI Blog2020 (12) TMI 1216X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned FIRs - Further, Clause (1) of Section 156 of the Code of Criminal Procedure provides that any officer in-charge of a police station may investigate any cognizable case which a court having jurisdiction over the local limits of such station would have the power to inquire into or try. Thus, a conjoint reading of Sections 179 and 156(1) of the Code of Criminal Procedure make it clear that the impugned FIRs do not suffer from this jurisdictional defect. Defence of causing Slight Harm - HELD THAT:- Whether an act, which amounts to an offence, is trivial would undoubtedly depend upon the evidence collated in relation to the injury or harm suffered, the knowledge or intention with which the offending act was done, and other related circumstances. These aspects would be examined and considered at the appropriate stage by the police during investigation, after investigation by the competent authority while granting or rejecting sanction or by the Court, if charge-sheet is filed - The 'content' by itself without ascertaining facts and evidence does not warrant acceptance of this plea raised by the Petitioner. The defence is left open, without expressing any opinion. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... protected - It is being fair to allow reasonable consensus to emerge despite differences. In essence, it implies non-discrimination of individuals or groups, but without negating the right to disagree and disapprove belief and behaviour. It signifies that all persons or groups are equal, even when all opinions and conduct are not equal. It also means use of temperate language and civility towards others. In the correct and true sense, undoubtedly 'tolerance' is a great virtue in all societies, which when practiced by communities, gets noticed, acknowledged and appreciated. Interpretation of the statutory provisions - HELD THAT:- Clauses (a) and (b) to Sub-section (1) to Section 153A of the Penal Code use the words 'promotes' and 'likely' respectively. Similarly, Section 295-A uses the word 'attempts' and Sub-section (2) to Section 505 uses the words 'create or promote'. Word 'likely' as explained above, in our opinion, convey the meaning, that the chance of the event occurring should be real and not fanciful or remote - 'Promote' does not imply mere describing and narrating a fact, or giving opinion criticising the point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art investigation when he has reason to suspect commission of offence. Requirements of Section 157 are higher than the requirements of Section 154 of the Code of Criminal Procedure. Further, a police officer in a given case after investigation can file a final report Under Section 173 of the Code of Criminal Procedure seeking closure of the matter. The prayer of the Petitioner for quashing of the FIRs is rejected but have granted interim protection to the Petitioner against arrest subject to his joining and cooperating in investigation till completion of the investigation - petition disposed off. - Writ Petition(s)(Criminal) No(s). 160/2020 - - - Dated:- 7-12-2020 - Mr. A.M. KHANWILKAR AND Mr. SANJIV KHANNA, JJ. For the Petitioner : Mr. Sidharth Luthra, Sr. Adv., Mr. Vivek Jain, AOR, Mr. Mrinal Bharti, Adv., Ms. Suchitra kumbhat, Adv., Mr. Samarth Krishna Luthra, Adv., Ms. Shubhangi Jain, Adv., Ms. Pallavi Garg, Adv., Mr. Manish Shekari, Adv., Mr. Nitin Sharma, Adv. For the Respondent : Mr. Rizwan Merchant, Adv., Mr. S. Hariharan, Adv., Ms. Jaikriti S. Jadeja, AOR, Mr. Sachin Patil, AOR, Mr. Rahul Chitnis, Adv., Mr. Geo Joseph, Adv., Dr. Manish Singhvi, Sr. Adv., M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. 173/2020 295A Indian Penal Code Bahadurpura, Hyderabad City (Telangana) 4. 218/2020 295A Indian Penal Code Itwara, Nanded (Maharashtra) 5. 217/2020 153A, 295A, 505(2) Indian Penal Code Paidhuni, Mumbai (Maharashtra) 6. 674/2020 295A Indian Penal Code Originally registered at P.S. Omati, Jabalpur (Madhya Pradesh) and subsequently on 30th June 2020 was transferred to P.S., Sector-20, Gautam Buddh Nagar (Uttar Pradesh) 7. 337/2020 295A Indian Penal Code Naya Nagar, Thane (Maharashtra) The gist of the FIRs is almost identical. The Petitioner, while hosting the debate, had described Pir Hazrat Moinuddin Chishti, also known as Pir Hazrat Khwaja Gareeb Nawaz, as aakrantak Chishti aya... aakrantak Chishti aya... lootera Chishti aya... uske baad dharam b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (d) direct the Union of India to provide adequate safety and security to the Petitioner, his family members and his colleagues at various places in the country. 8. The Petitioner, in his submissions, claims that he has faith in Banda Nawaz Hazrat Khwaja Moinuddin Chishti and has also gone on Ziyarat pilgrimage to Ajmer Sharif to offer respects and to worship. Expressing regret, the Petitioner claims that the attributed words were uttered inadvertently and by mistake; in fact, the Petitioner wanted to refer to Alauddin Khilji and not Gareeb Nawaz Khwaja Moinuddin Chishti. Realising his mistake and to amend the inadvertent error, and to dispel doubts and vindicate himself, the Petitioner had promptly issued a clarification and an apology vide a tweet dated 17th June 2020. A video with similar clarification and apology was also telecast by the news channel on the very same day. Contention of the Petitioner is that in a whirl, he had taken the name of Chishti though he had no such intention, and he laments his lapse as he did not wish to hurt anybody. Accordingly, he had apologised to anyone who had been hurt. In addition, a number of submissions have been made by the Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (2017) 7 SCC 760, Manzar Sayeed Khan v. State of Maharashtra and Anr. (2007) 5 SCC 1, P.K. Chakravarty v. The King AIR 1926 Calcutta 1133, Pravasi Bhalai Sangathan v. Union of India and Ors. (2014) 11 SCC 477 Queen-Empress v. Bal Gangadhar Tilak ILR (1898) 22 Bombay 112, R. v. Zundel [1992] 2 SCR 731, R.P. Kapur v. State of Punjab AIR 1960 SC 866, Ramesh S/o Chhotalal Dalal v. Union of India and Ors. (1988) 1 SCC 668 Ramji Lal Modi v. State of U.P. AIR 1957 SC 620, Romesh Thappar v. State of Madras AIR 1950 SC 124, Saskatchewan (Human Rights Commission) v. Whatcott (2013] 1 SCR 467, Shreya Singhal v. Union of India (2015) 5 SCC 1, State of Bihar and Anr. v. P.P. Sharma, IAS and Anr. 1992 Supp. (1) SCC 222, State of H.P. v. Pirthi Chand and Anr. (1996) 2 SCC 37, State of Haryana v. Bhajan Lal 1991 Supp (1) SCC 335, State of U.P. v. O.P. Sharma (1996) 7 SCC 705, Veeda Menez v. Yusuf Khan and Anr. 1966 SCR 123, Neelam Mahajan v. Commissioner of Police and Ors. 1993 (27) DRJ 357 Superintendent of Police, CBI and Ors. v. Tapan Kumar Singh (2003) 6 SCC 175, Superintendent, Central Prison, Fatehgarh and Anr. v. Dr. Ram Manohar Lohia AIR 1960 SC 633, T.T. Antony v. State of Kerala and Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 482 of the Code of Criminal Procedure, 1973 (hereafter referred to as, 'Criminal Code') was available to the Petitioner. I.A. by Haji Syed Chisti, Khadim of Dargah; Respondent No. 9, The offending words were uttered thrice by the Petitioner, which shows his ill intention. I.A. by Haji Syed Chisti, Khadim of Dargah; Respondent No. 9, Respondent No. 6 The intention of the Petitioner was to create disharmony between the two faiths/groups and to incite disorder. I.A. by Haji Syed Chisti, Khadim of Dargah The debate was a staged program, where no experts or historians were on the panel; the program was staged to malign the Muslims and to promote hatred. I.A. by Sajid Noormohammad Sheikh r/o Nashik, Maharashtra The themes of the programs hosted by the Petitioner are communal. Respondent No. 9, Respondent No. 10 The conduct of the Petitioner was against norms of journalistic standards. Respondent No. 6 Petitioner uploaded an edited version of the video on Youtube, where he had removed the part containing the offensive speech. This was done after FIR was lodged as an attempt to tamper/destroy the evidence.8 The Petitioner claimed that inadverte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow. (b) Allegations and counter allegations of facts are matter of trial. (c) Transfer all FIRs to Ajmer as one of the FIRs is there, and matter also relates to Ajmer. State of Telangana Respondent No. 4 submitted: (a) Complainants/informants came to the P.S. Bahadurpura, Hyderabad and made a complaint that the Petitioner has dishonoured Khwaja Chishti. (b) As per State of Orissa v. Saroj Kumar Sahoo (2005) 13 SCC 540, probabilities of prosecution version can't be denied at the early stages. (c) Normal course of investigation cannot be cut-short in casual manner. Also, the Accused has a remedy under 482 of the Code of Criminal Procedure. The Show and Debate 11. Before we examine the first prayer, we must take notice of the fact that the transcript filed by the Petitioner with the original writ petition and the amended writ petitions is not the true and correct transcript. As per these transcripts the Petitioner is stated to have only uttered the words Akranta Chishti came... Lootera Chishti came after then religion changed . However, in the transcript filed by the Petitioner on 8th July, 2020, it is accepted that the Petitioner had used the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehman: Amish Ji, I'm welcoming your statements that you said you don't want the 'Hindu-Muslim' saga on the matter. And I pay respect to Mahant Ji as well. He put his thoughts in a well-behaved manner. The Mahant Ji raised the question; 'a mole in the thief's beard' (darta wo hai jinki dadi me tinka hota hai). xx xx xx Amish Devgan: Point Number-2: You have said that with a clever step...Atiq-Ur-Rehman Ji I've listened your statement, you talked around 2-2 minutes. You said that the verdict on the Ayodhya case came on the board cleverly. But, I want to refresh your memory; in the year of 1991-92 when there had the slogan for the Ayodhya in the air the Sant Samaj, VHP, Rashtriya Swayamsevak Sangh and authentic persons of the Hindu Samaj used to say Ayodhya jhanki hai, Kashi-Mathura baki hai. So the demand is very old. The wish is too old. But when the Ayodhya's wish was fulfilled then definitely after that verdict you are raising the question on your own ways. That is your take. Now I'm moving to Dr. Sudhanshu Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to their father (Ye sara inka, inke Baap ka hai?) This is not the right way. The first thing is, if the law had implemented, it should complete in a shape. And the second one is...is it not true that thousands of the Hindu temples had demolished? The Hindu had converted and humiliated in a large scale. There should be needed to rectify the historical wrongs. Why they are trying to escape from the reality. Amish Devgan: The historical wrong should rectify. Though several historians said the Eidgah and Krishan Janam Bhoomi in Mathura are situated adjacent to each other. Several historians claimed that in the 17th century emperor Aurangzeb had demolished a temple and had built a mosque on the very same place. VHP's Giriraj Kishor also said the same thing that on the place where the mosque is situated in Mathura, the Lord Krishnan had birthed on the same place. Besides that, he said several things. Now I want to move to Shadab Chauhan. He wishes to say something. Please go ahead. Shadab Chauhan: Peace Party pay respect to the Constitution of India and the social harmony. So, we have filed the curative petition for the justice. Now we will talk about Kashi and Mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .So it should be decided if there was a Ram temple or Jain temple, it can be disseminated to you...the excavation says another story...if talk about name of Shadab Chauhan or anybody else...we are proud to said that after Khawaja Moinuddin Chisti...a lot of Indians converted to Islam and saw Moinuddin's execution and converted to Islam by seeing his life...but not all the Muslims who are in India are converts. Amish Devgan: Maulana sahib, you took the name of Chishti...Now tell me, you are in today's age, after watching Donald Trump, he is a Christian, you will not change your religion, will not change religion after seeing Prime Minister Narendra Modi's religion... xx xx xx Maulana Ali Qadri: Seeing the implementation of Khwaja Moinuddin Chishti...Seeing the Talimat of Islam that all live together, there is no inferiority...Seeing Moinuddin's life, people accepted Islam... Amish Devgan: Dr. Sudhanshu Trivedi...Akranta Chishti came...Akranta Chisti came...Lootera Chishti came after then religion changed. Maulana Qadri: No man accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not matter...I will not ask for forgiveness... Shadab Chauhan: No...Farmer's son won't apologise. Amish Devgan: So get out again...You get this person out of debates...Turn off the audio of this...I never say that to any guest...But you spoke derogatory words...Show this person show a full frame...You are a foolish man...Open the audio, what is he saying... Shadab Chauhan: And but goons will be called goons... Amish Devgan: Apologise to the saint community... Shadab Chauhan: I respect all religions but goons will be called goons... Amish Devgan: Same respect for all religions, everybody spoke about religion...Nobody called anything derogatory to Jamiat Ulema Hind...No one spoke...The saints who are putting up a social petition would be called goons...goons?.. Shadab Chauhan: There are hooligans who break religious places...There are goons who break the Constitution are goons who destroy the Constitution... Amish Devgan: Shut up and get out. You are out...You are not fit to sit in this debate. You are out...Turn these out. Turn off the audio. Keep eating the minds of your family...get out of here...I am asking you Qadri sahib...the words us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in-charge of a police station may investigate any cognizable case which a court having jurisdiction over the local limits of such station would have the power to inquire into or try. Thus, a conjoint reading of Sections 179 and 156(1) of the Code of Criminal Procedure make it clear that the impugned FIRs do not suffer from this jurisdictional defect. (ii) Defence of causing slight harm 14. The Petitioner has relied upon the decision of this Court in Veeda Menez and the decision of the High Court of Delhi in Neelam Mahajan to plead the defence of trifle Under Section 95 of the Penal Code. We are not inclined at this stage to entertain this defence of the Petitioner. Section 95 is intended to prevent penalisation of negligible wrongs or offences of trivial character. Whether an act, which amounts to an offence, is trivial would undoubtedly depend upon the evidence collated in relation to the injury or harm suffered, the knowledge or intention with which the offending act was done, and other related circumstances. These aspects would be examined and considered at the appropriate stage by the police during investigation, after investigation by the competent authority while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal laws for inserting new provisions prohibiting incitement to hatred and causing fear, alarm, or provocation of violence in certain cases, but these have not yet been accepted by the government. Referring to the Constituent Assembly Debates and the Constitution, the Report observes that the right to speech was not to be treated as absolute, but subject to restrictions on the grounds like sedition, obscenity, slander, libel and interest of public order. If the State is denied power to restrict speech on the basis of content, it might produce debates informed by prejudices of the public that would marginalise vulnerable groups and deny them equal space in the society. The mode of exercise of free speech, the context and the extent of abuse of freedom are important in determining the contours of permissible restrictions. The Commission also felt that laying down of a definite standard might lead to curtailment of free speech; a concern that has prevented the judiciary from defining hate speech in India. However, this is not to deny that the courts while adjudicating each case have to inevitably apply an objective test in terms of the legislative provisions. This is an inescapable l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.' The Law Commission report notes that pluralism, tolerance, peace and non-discrimination have been termed non-derogatory values by the European Court of Human Rights in ascertaining the extent of free speech allowed under the Convention; speech propagating religious intolerance, negationism, homophobia etc. has been excluded from the ambit of Article 10 of European Convention of Human Rights and the importance of responsible speech in a multicultural society has been stressed by the court in several cases. The Law Commission report has noted that in recent years, the European Court of Human Rights has moved from a strictly neutral approach, wherein not every offensive speech was considered illegitimate, by holding that interference is not to be solely judged on legitimate aim test but also whether such interference was necessary in a democratic society. This moderation takes into account that affording protection to all kinds of speech, even offensive ones, many tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peech enables individual autonomy, respect and well-being through self-expression. 20. The threshold or the standard in American jurisprudence to determine the circumstances under which the First Amendment freedoms of speech, press and assembly should be restricted has with time moved from the 'bad tendency test' i.e., prohibiting speech if it has tendency to harm public welfare, to the test of 'clear and present danger', Mr. Justice Holmes in Schenek v. United States, 249 U.S. 47 (52), has described the test as: The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. and to finally the test of 'imminent lawless action'. Mr. Justice Douglas in his concurring opinion in Brandenburg v. Ohio 395 U.S. 444 (1969) had adumbrated that the 'clear and present danger' precept in pronouncements during World War I and to check Marxism had moved away from the First Amendment ideal as in Dennis v. United States 341 U.S. 494 'no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeds on the basis of inviolability of human dignity as its paramount value and specifically limits the freedom of expression when necessary to protect the young and the right to personal honour. Canadian approach emphasises on multiculturalism and group equality, as it places greater emphasis on cultural diversity and promotes the idea of ethnic mosaic. The Canadian Supreme Court in James Keegstra had upheld the criminal conviction of a high school teacher for anti-Semitic propaganda on the ground that it amounts to wilful promotion of hatred against a group identifiable on the basis of colour, race, religion or ethnic origin. It was observed as under: (1) seeking and attaining truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in a tolerant and welcoming environment for the sake of both those who convey a meaning and those to whom meaning is conveyed. The Canadian position, therefore, considers the likely impact of hate speech on both the targeted groups and non-targeted groups. The former are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pport the protection of hate propaganda, and may even detriment our search for truth. The more erroneous or mendacious a statement, the less its value in the quest of truth. We must not overemphasise that rationality will overcome all falsehoods. (b) Self-fulfilment and autonomy, in a large part, come from one's ability to articulate and nurture an identity based on membership in a cultural or religious group. The extent to which this value furthers free speech should be modulated insofar as it advocates an intolerant and prejudicial disregard for the process of individual self-development and human flourishing. (c) The justification from participation in democracy shows a shortcoming when expression is employed to propagate ideas repugnant to democratic values, thus undermining the commitment to democracy. Hate propaganda argues for a society with subversion of democracy and denial of respect and dignity to individuals based on group identities. 25. The South African position regards dignity as paramount constitutional value and the law and the courts are willing to subjugate freedom of expression when the latter sufficiently undermines the former. The constitutiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to individuals. However, the situations were quite different. In France, the revolution sought to limit, if not abolish-the prerogatives of rich and powerful catholic church. The French Parliament defined 'religious freedom' in individual terms and in August, 1789 adopted the declaration des Droits de l'Homme et du Citoy en, which declared-'no one may be disturbed for his opinions, even religious ones, provided that their manifestation does not trouble the public order established by the law'. In 1905, Declaration of Laicite, freedom of conscience, the freedom to believe or not believe, was enshrined in the Constitution. The principle recognises freedom to practice religion, in private or in public, as long as the manifestation of the practice does not disturb the peace. The State guarantees equality to all citizens regardless of their philosophical or religious conviction as all persons are born and remain free and equal in right. Everyone is free to express their own particular convictions and adhere to it. Laicite confederates and reinforces the unity of the nation by bringing citizens together by adhering to values of the republic which includes the right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgeted group by ascribing to it qualities widely disregarded as undesirable; (c) Speech should cause harm, which can be physical harm such as violence or incitement and true threats of violence and can include deep structural considerations caused by silent harm because of the victim's desperation that they cannot change the attribute that gives rise to hatred. The speech could permeate and impact the victim's relationship with others, cause denial of oneself and result in structural harms within the society; (d) Intent of the speaker to cause harm or other bad activity to most is an essential feature of hate speech. In some statutes it can be even tacit inherent component. However, what the speaker should intend to constitute hate speech is subject to varied positions. Intent may refer to non-physical aspects like to demean, vilify, humiliate, or being persecutorial, disregarding or hateful, or refer to physical aspects like promoting violence, or direct attacks. However, speakers can lie about their intent not only to others but to themselves. Intent may be disguised and obscured; (e) Speech should incite some other consequence as a result of the speech. Incit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 'in the interest of public order' was reiterated by another Constitution Bench of five Judges of this Court in Virendra/K. Narendra. 31. Even so, in Ramji Lal Modi Section 295A of the Penal Code was interpreted punctiliously observing: 9....Section 295-A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class... Import of Section 295A of the Penal Code, Ramji Lal Modi holds, is to curb speech made with 'malicious intent' and not 'offensive speech'. Criminality would not include insults to religion offered unwittingly, carelessly or without deliberate or malicious intent to outrage the religious feelings. Only aggravated form of insult to religion when it is perpetuated with deliberate and malicious intent to outrage the religious feelings of that group is punishable. Notably, this Court had already dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r spoken etc., have the pernicious tendency or intention of creating public disorder. So construed, the two provisions strike the correct balance between individual fundamental rights and the interest of public order. For interpretation, the court should not only have regard to the literal meaning of the words of the statute but take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress. 33. With reference to Section 505 of the Penal Code, Kedar Nath Singh observes that each of the three clauses of the Section refer to the gravamen of the offence as making, publishing or circulating any statement, rumour or report-(a) with the intent of causing or which is likely to cause any member of the Army, Navy or Air Force to mutiny or otherwise disregard or fail in his duty as such; or (b) cause fear or alarm to the public or a Section of the public which may induce the commission of an offence against the State or against public tranquillity; or (c) incite or which is likely to incite one class or community of persons to commit an offence against any other class or community. Constituent elements of each of the three clauses have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have a tendency, to create public disorder or disturbance of public peace by resort to violence. As a sequitur it follows that the courts should moderate and control the ambit and scope of the penal provisions to remain within and meet the constitutional mandate. Interpretation and application that is distant and beyond the superior command of the permissible constitutional limitation vide Clause (2) to Article 19 is unacceptable. 35. The decision in Ramji Lal Modi and the later decision in Bilal Ahmed Kaloo, which had examined Sections 153A and 505(2) of the Penal Code, had primarily applied the 'Bad Tendency test' as propounded by the American jurists. In Dr. Ram Manohar Lohia, the Constitution Bench of five Judges, referring to the words 'in the interest of... public order' in Clause (2) to Article 19 had observed that order is a basic need in any organised society. It implies orderly state of society or community in which the citizens can peacefully pursue their normal activities of life. This is essential as without order there cannot be any guarantee of other rights. Security of the State, public order and law and order represent three concentric circles: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no scope for agitational approach and the law, if bad, can be modified by democratic process alone was rejected on the ground that if the same is accepted it would destroy the right to freedom of speech. However, what is important is the finding that public order is synonymous with public safety and tranquillity, in the sense that the latter terms refer to the former. The terms refer to absence of disorder, involving breaches of local significance in contradiction to national upheavals affecting security of the State. Yet they have be serious enough like civil strife and not mere law and order issues. Further, the 'proximate nexus test' in the 'interest of public order' should be satisfied. 36. In Madhu Limaye v. Sub-Divisional Magistrate, Monghyr and Ors. (1970) 3 SCC 746 a seven Judge Constitution Bench of this Court has rejected challenge to the constitutional validity of Section 144 and Chapter VIII of the Code of Criminal Procedure, 1873 (sic 1973) holding that the impugned provisions properly understood were not in excess of the limits laid down in the Constitution for restricting the freedoms guaranteed Under Article 19(1) Clauses (a), (b), (c) and (d). Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the security of the State. Interpreting the requisites of Section 144, it was held that it was meant and concerned with power with the State to free the society from the menace of serious disturbances of grave character, that is to say that the annoyance must assume sufficiently grave proportions to bring the matter within the interest of public order. Rejecting the contention that the language of Section 144 was overbroad, reference was made to Section 188 of the Penal Code to hold that mere disobedience of the order is not sufficient to constitute an offence; there must be in addition obstruction, annoyance, or danger to human life, health or safety or a riot or an affray for an offence to me made out under the penal provision. Thus, the offence Under Section 188 of the Penal Code is restricted and confined by the legislative mandate. The general order Under Section 144 is justified on the ground that it may be necessary when number of persons is so large that distinction between them and general public cannot be made without the risk mentioned in the section. A general order is thus justified, and if the action is too general, the order may be questioned by appropriate remedy p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied to each individual impugned statute, as no abstract standard or general pattern of reasonableness is applicable to all cases. Reasonableness always has reference to evil sought to be remedied and requires examination of the proportion of the imposition. 39. In Shreya Singhal, to exposit the public order stipulation in Clause (2) of Article 19, reference was made to Arun Ghosh v. State of West Bengal (1970) 1 SCC 98 wherein the test as laid down in Dr. Ram Manohar Lohia was applied to hold that public order would embrace more of the community than law and order. Public order refers to the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from the acts directed against individuals which do not disturb the society to the extent of causing general disturbance of public tranquillity. This was explained by way of examples: 3....Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of a town where there is communal tension. A man sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s certain exceptions, which empower the State to impose reasonable restrictions in appropriate cases. The ingredients of Article 19(2) of the Constitution are that: (a) The action must be sanctioned by law; (b) The proposed action must be a reasonable restriction; (c) Such restriction must be in furtherance of interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. 38. At the outset, the imposition of restriction is qualified by the term reasonable and is limited to situations such as interests of the sovereignty, integrity, security, friendly relations with the foreign States, public order, decency or morality or contempt of court, defamation or incitement to an offence. Reasonability of a restriction is used in a qualitative, quantitative and relative sense. 39. It has been argued by the counsel for the Petitioners that the restrictions Under Article 19 of the Constitution cannot mean complete prohibition. In this context, we may note that the aforesaid contention cannot be sustained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper relation ('proportionality stricto sensu' or 'balancing') between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right. Subsequently, the principle was reiterated in the Aadhaar judgment reported as Justice K.S. Puttasamy v. Union of India (2) (2017) 10 SCC 1. We need not elaborate on this principle in view of the limited controversy involved in the present case, albeit the formulation recognises the benefit and need for least intrusive measure when it comes to curtailment of fundamental rights and for this purpose the court can examine the reasonableness of the measures undertaken and whether they are necessary, in that there are no alternatives measures that can achieve the same purpose with a lesser degree of restriction. Secondly, there has to be proper proportionality or balance between the importance of achieving the proper measure and social importance of preventing the limitation on the constitutional right. 42. The expression 'reasonable restriction' has been elucidated in numerous decisions which have been quoted in Subramanian Swamy v. Union of India and Ors. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man rights and impose negative obligations on the State not to encroach on individual liberty in its different dimensions. The rights under Part-III are wide ranging and comprehensive, though they have been categorised under different heads, namely, right to equality, right to freedom of expression and speech, right against exploitation, right to freedom of religion, cultural and educational rights, and right to constitutional remedies. Each freedom has a different dimension and merely because the limits of interference with one freedom are satisfied, the law is not free from the necessity to meet the challenge of another guaranteed freedom. Secondly, in Maneka Gandhi, it was held that the expression 'personal liberty' in Article 21 is of the widest amplitude and it covers a variety of rights which go on to constitute the personal liberty of a man, though some of them have been raised to the status of distinct fundamental rights and given additional protection Under Article 19. Article 21 does not exclude Article 19 or vice-versa, or for that matter the right to equality Under Article 14 of the Constitution. Thus, Part III of the Constitution is expansive and its connotativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal rights when the right of a citizen comes in conflict with a different fundamental right also granted by the Constitution as each citizen is entitled to enjoy each and every one of the freedoms together and the Constitution does not prefer one freedom to another. In Ram Jethmalani and Ors. v. Union of India and Ors. (2011) 8 SCC 1 this Court has observed that rights of citizens Under Article 19(1) have to be balanced against the rights of citizens and persons Under Article 21 and the latter rights cannot be sacrificed as this would lead to detrimental consequences and even anarchy. Constitutional rights no doubt very important, possibly are not made absolute as they may come into conflict with each other and when competing they have to be qualified and balanced. In Noise Pollution (V), In Re. (2005) 5 SCC 733 it was observed that Article 19(1)(a) cannot be pressed into service for defeating the fundamental right guaranteed by Article 21 as if one claims to right to speech, the others have the right to listen or decline to listen. A person speaking cannot violate the rights of others of peaceful, comfortable and pollution free right guaranteed by Article 21. 44. Right to equal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... level of honour or esteem as an individual, as in the case of defamation which is individualistic. The Supreme Court of the United States of America in Beauharnais v. Illinois 343 U.S. 250 (1952), while upholding conviction for hate speech, had emphasised that such speech should amount to group defamation which though analogous to individual defamation has been traditionally excluded from free speech protection in America. Loss of dignity and self-worth of the targeted group members contributes to disharmony amongst groups, erodes tolerance and open-mindedness which are a must for multi-cultural society committed to the idea of equality. It affects an individual as a member of a group. It is however necessary that at least two groups or communities must be involved; merely referring to feelings of one community or group without any reference to any other community or group does not attract the 'hate speech' definition. Manzar Sayeed Khan, taking note of the observations in Bilal Ahmad Kaloo, records that common features of Sections 153A and 505(2) being promotion of feeling of enmity, hatred or ill-will 'between different' religious or racial or linguistic or region ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e legal landscape' elucidating on three distinct elements that legislatures and courts can use to define and identify 'hate speech', namely-content-based element, intent-based element and harm-based element (or impact-based element). The content-based element involves open use of words and phrases generally considered to be offensive to a particular community and objectively offensive to the society. It can include use of certain symbols and iconography. By applying objective standards, one knows or has reasonable grounds to know that the content would allow anger, alarm or resentment in others on the basis of race, colour, creed, religion or gender. The intent-based element of 'hate speech' requires the speaker's message to intend only to promote hatred, violence or resentment against a particular class or group without communicating any legitimate message. This requires subjective intent on the part of the speaker to target the group or person associated with the class/group. The harm or impact-based element refers to the consequences of the 'hate speech', that is, harm to the victim which can be violent or such as loss of self-esteem, economic or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate speech' as a form of expression, through which the speaker primarily intends to vilify, humiliate or incite hatred against their targets. As explained below, 'content' has relation with the subject-matter, but is not synonymous with the subject-matter. 'Content' has more to do with the expression, language and message which should be to vilify, demean and incite psychosocial hatred or physical violence against the targeted group. 51. The 'context', as indicated above, has a certain key variable, namely, 'who' and 'what' is involved and 'where' and the 'occasion, time and under what circumstances' the case arises. The 'who' is always plural for it encompasses the speaker who utters the statement that constitutes 'hate speech' and also the audience to whom the statement is addressed which includes both the target and the others. Variable context review recognises that all speeches are not alike. This is not only because of group affiliations, but in the context of dominant group hate speech against a vulnerable and discriminated group, and also the impact of hate speech depends on the person who has ut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of 'who' and question of indulgence would lose significance and may be of little consequence. 52. Persons of influence, keeping in view their reach, impact and authority they yield on general public or the specific class to which they belong, owe a duty and have to be more responsible. They are expected to know and perceive the meaning conveyed by the words spoken or written, including the possible meaning that is likely to be conveyed. With experience and knowledge, they are expected to have a higher level of communication skills. It is reasonable to hold that they would be careful in using the words that convey their intent. The reasonable-man's test would always take into consideration the maker. In other words, the expression 'reasonable man' would take into account the impact a particular person would have and accordingly apply the standard, just like we substitute the reasonable man's test to that of the reasonable professional when we apply the test of professional negligence. In Bolam v. Friern Hospital Management Committee, [1957] 2 All E.R. 118, it was observed: A doctor is not guilty of negligence if he has acted in accordance with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngering security of the State, but with 'hate speech' in the context of Clauses (a) and (b) to Sub-section (1) of Section 153A, Section 295A and Sub-section (2) to Section 505 of the Penal Code. In this context, it is necessary to draw a distinction between 'free speech' which includes the right to comment, favour or criticise government policies; and 'hate speech' creating or spreading hatred against a targeted community or group. The former is primarily concerned with political, social and economic issues and policy matters, the latter would not primarily focus on the subject matter but on the substance of the message which is to cause humiliation and alienation of the targeted group. The object of criminalising the latter type of speech is to protect the dignity (as explained above) and to ensure political and social equality between different identities and groups regardless of caste, creed, religion, sex, gender identity, sexual orientation, linguistic preference etc. Freedom to express and speak is the most important condition for political democracy. Law and policies are not democratic unless they have been made and subjected to democratic process inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turbed. The latter and acts excluded on application of the top of Clapham omnibus test are not covered. Therefore, anti-democratic speech in general and political extremist speech in particular, which has no useful purpose, if and only when in the nature of incitement to violence that 'creates', or is 'likely to create' or 'promotes' or is 'likely to promote' public disorder, would not be protected. 55. Sometimes, difficulty may arise and the courts and authorities would have to exercise discernment and caution in deciding whether the 'content' is a political or policy comment, or creates or spreads hatred against the targeted group or community. This is of importance and significance as overlap is possible and principles have to be evolved to distinguish. We would refer to one example to illustrate the difference. Proponents of affirmative action and those opposing it, are perfectly and equally entitled to raise their concerns and even criticise the policies adopted even when sanctioned by a statute or meeting constitutional scrutiny, without any fear or concern that they would be prosecuted or penalised. However, penal action would be ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or hatred. The likelihood must be judged from healthy and reasonable standard thereby accepting the position that historical truth may be a relevant and important factor. However, the historical truth must be depicted without in any way disclosing or encouraging hatred or enmity between different classes or communities. In Lalai Singh Yadav and Anr. v. State of Uttar Pradesh 1971 Cri.L.J. 1773 (FB) (Allahabad), the Allahabad High Court had observed that the book written by Dr. B.R. Ambedkar throwing light on the oppression and exploitation of Dalits and suggesting conversion to Buddhism was couched in a restrained language and did not amount to an offence. Rational criticism of religious tenets, is acceptable as legitimate criticism, is not an offence for no reasonable person of normal susceptibilities would object to it. In Ramesh, challenge to the serial 'Tamas' was rejected on the ground that it was an instructive serial revealing an evil facet of history within permissible extent of examination even if it depicted pre-partition communal tension and violence. A hurt, which is a product of a benevolent intent, may incite negative attitudes to the victim but would fall sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve truth over another's. Cultural value system, historical experiences, lived realities of social systems and hierarchies-all these are determinants in how an individual perceives the truth to be. George Bernard Shaw has said that our whole theory of freedom of speech and opinion for all citizens rests not on the assumption that everybody was right, but on the certainty that everybody was wrong on some point on which somebody else was right, so that there was a public danger in allowing anybody to go unheard. George Bernard Shaw, Socialism off Millionaires, 16(1901) Many so-called truths have been rectified and corrected because they were disputed scientifically or economically, socially and politically. One should not Rule out possibility of divergency between truth and popular belief or even situations that are described as epistemological problem of the 'post truth' era, which is not that people do not value truth, but some may believe and accept falsehoods. Joseph Blocher, 'Free Speech and Justified True Belief', Harvard Law Review, Vol. 133, No. 2, December 2019. Nevertheless, in many ways, free speech has empowered those who were marginalised and discrimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ety is entitled to expect tolerance as they are bound to extend to others. The expression 'tolerance' is, therefore, important, yet defining it is problematic as it has different meanings. We need not examine the philosophies or the meanings in detail, and would prefer to quote Article 1 from the Declaration of Principles of Tolerance by the Member States of the United Nations Educational, Scientific and Cultural Organisation adopted in its meeting in Paris at the 28th session of the General Conference, which reads as under: Article 1-Meaning of tolerance 1.1 Tolerance is respect, acceptance and appreciation of the rich diversity of our world's cultures, our forms of expression and ways of being human. It is fostered by knowledge, openness, communication, and freedom of thought, conscience and belief. Tolerance is harmony in difference. It is not only a moral duty, it is also a political and legal requirement. Tolerance, the virtue that makes peace possible, contributes to the replacement of the culture of war by a culture of peace. 1.2 Tolerance is not concession, condescension or indulgence. Tolerance is, above all, an active attitude prompted by recogni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... universal principles. According to Martin Packer, at least since Immanuel Kant and David Hume, morality has been seeing as needing to take the form of 'rational, universal principles' that would guide the autonomous individual. These principles would necessarily transcend the many dictates of specific societies and cultures; the dictates are contingent while morality and the good must be universally compelling. The test accepts rational argument principle to keep intolerant philosophies in check. Thus, tolerance is not to accept things that are better to overcome, Marjoka Van Doorn, the Nature of Tolerance and the Social Circumstances in Which it Emerges, Current Sociology Review, 2014, Vol. 62(6) 905-927 or when practices reflect intolerance within themselves, like disregard for human rights and principles of equality and fraternity. Further, there may even be unjustified religious beliefs in relation to morality, politics, origin of humanity, social hierarchies, etc. which should not be tolerated. Sam Hariss, The End of Faith The argument can also be grounded on comprehensive moral theory. Michael Sandel Democracy's Discontent (1998) Tolerance also means developing an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligious, racial, language or regional group or caste or community and such activity, for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both. Offence committed in place of worship, etc.--(2) Whoever commits an offence specified in Sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine. 61. In the present case, we are not concerned with Clause (c) to Sub-section (1) to Section 153A and hence we would not examine the same. Section 153A has been interpreted by this Court in Manzar Sayeed Khan and Balwant Singh and other cases. It would be, however, important to refer to the legislative history of this Section as the same was introduced by the Indian Penal Code (Amendment) Act, 1898 on the recommendation of the Select Committee. The Section then enacted had referred to words, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e likely to produce hatred, they must be presumed to be intended to have that effect unless the contrary is shown. The Bombay High Court in Gopal Vinayak Godse has observed that the intention to promote enmity or hatred is not a necessary ingredient of the offence. It is enough to show that the language of the writing is of the nature calculated to promote feelings of enmity or hatred, for a person must be presumed to intend the natural consequences of his act. The view expressed by the Bombay High Court in Gopal Vinayak Godse lays considerable emphasis on the words itself, but the view expressed in P.K. Chakravarthy and Devki Sharma take a much broader and a wider picture which, in our opinion, would be the right way to examine whether an offence Under Section 153A, Clauses (a) and (b) had been committed. The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter or what is implied in that matter or what is inferred from it. A particular imputation is capable of being conveyed means and implies it is reasonably so capable and should not be strained, forced or subjected to utterly unreasonable interpretation. We would also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... security of the State, but not acts which disturb only serenity, and are covered by the third and widest circle of law and order. Public order also includes acts of local significance embracing a variety of conduct destroying or menacing public order. Public Order in Clause (2) to Article 19 nor the statutory provisions make any distinction between the majority and minority groups with reference to the population of the particular area though as we have noted above this may be of some relevance. When we accept the principle of local significance, as a sequitur we must also accept that majority and minority groups could have, in a given case, reference to a local area. 65. Section 295A and Clause (2) of Section 505 of the Penal Code reads as under: 295-A. Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.--Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inction between Sub-section (2) to Section 505 and Clause (a) to Section 153A of the Penal Code observing that publication is not necessary in the latter while it is sine qua non under Clause (2) of Section 505. Clause (2) of Section 505 of the Penal Code cannot be interpreted disjunctively and the words 'whosoever makes, publishes or circulates' are supplemented to each other. The intention of the legislature in providing two different Sections of the same subject vide single amending act would show that they cover two different fields of same colour. 67. Clauses (a) and (b) to Sub-section (1) to Section 153A of the Penal Code use the words 'promotes' and 'likely' respectively. Similarly, Section 295-A uses the word 'attempts' and Sub-section (2) to Section 505 uses the words 'create or promote'. Word 'likely' as explained above, in our opinion, convey the meaning, that the chance of the event occurring should be real and not fanciful or remote (Tillmanns Butcheries Pty. Ltd. v. Australasian Meat Industry Employees' Union (1979) 27 ALR 380). The standard of 'not improbable' is too weak and cannot be applied as it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. Further, in State v. Mohd. Yakub (1980) 3 SCC 57, this Court observed: 13....What constitutes an attempt is mixed question of law and fact depending largely upon the circumstances of a particular case. Attempt defies a precise and exact definition. Broadly speaking all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage he makes preparation to commit it. The third stage is reached when the culprit takes deliberate overt act or step to commit the offence. Such overt act or step in order to be 'criminal' need not be the penultimate act towards the commission of the offence. It is sufficient if such acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, creed or regional basis. We must act with the objective for promoting social harmony and tolerance by proscribing hateful and inappropriate behaviour. This can be achieved by self-restraint, institutional check and correction, as well as self-Regulation or through the mechanism of statutory Regulations, if applicable. It is not penal threat alone which can help us achieve and ensure equality between groups. Dignity of citizens of all castes, creed, religion and region is best protected by the fellow citizens belonging to non-targeted groups and even targeted groups. As stated earlier, in a polity committed to pluralism, hate speech cannot conceivably contribute in any legitimate way to democracy and, in fact, repudiates the right to equality. 70. Majority of the cases referred to by the Petitioner were cases wherein after charge-sheet and trial, this Court had come to the conclusion that no offence had been proved and established Under Section 153A, 295A or Sub-section (2) to Section 505 of the Penal Code. We do not deem it necessary to reproduce the facts of those decisions and apply their ratio in the present case. However, we would like to refer to judgments where this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to involve himself in promoting or attempt to promote any disharmony between communities, castes or religions within the State. Good faith and (no) legitimate purpose principle was effectively applied. These principles were also applied by this Court in Ramesh holding that the T.V. Serial 'Tamas' did not depict communal tension or violence to fall foul of Section 153A of the Penal Code and/or was the serial prejudicial to national integration to fall Under Section 153B of the Penal Code. Reliance was also placed on the test of 'Clapham omnibus' referred to above. Mahendra Singh Dhoni was a case in which prosecution Under Section 295A was initiated by filing a private complaint on the ground that the photograph of the well-known cricketer, as published in the magazine, was with a caption 'God of Big Things'. It was obvious that prosecution on the basis of content was absurd and too farfetched by any standards even if we ignore the intent or the hurt element. (v) Validity of First Information Reports (FIRs) 73. Acronym FIR, or the First Information Report, is neither defined in the Code of Criminal Procedure nor is used therein, albeit it refers to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation would be a matter of investigation and only there upon the police will be able to report on the truthfulness or otherwise. Importantly, in Tapan Kumar Singh, it was held that even if information does not furnish all details, it is for the investigating officer to find out those details during the course of investigation and collect necessary evidence. Thus, the information disclosing commission of a cognisable offence only sets in motion the investigating machinery with a view to collect necessary evidence, and thereafter, taking action in accordance with law. The true test for a valid FIR, as laid down in Lalita Kumari, is only whether the information furnished provides reason to suspect the commission of an offence which the police officer concerned is empowered Under Section 156(1) of the Code of Criminal Procedure to investigate. The questions as to whether the report is true; whether it discloses full details regarding the manner of occurrence; whether the Accused is named; or whether there is sufficient evidence to support the allegation are all matters which are alien to consideration of the question whether the report discloses commission of a cognisable offence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure is availed of. A reading of a complaint or FIR itself does not disclose at all any cognizable offence--the court may embark upon the consideration thereof and exercise the power. 13. When the remedy Under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power Under Article 226 since efficacious remedy Under Section 482 of the Code is available. When the court exercises its inherent power Under Section 482, the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the court. When investigating officer spends considerable time to collect the evidence and places the charge-sheet before the court, further action should not be short-circuited by resorting to exercise inherent power to quash the charge-sheet. The social stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon exercising inherent power. The Accused involved in an economic offence destabilises the economy and causes gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Criminal Procedure, we see no exceptional grounds or reasons to entertain this petition Under Article 32. There is a clear distinction between the maintainability of a petition and whether it should be entertained. In a situation like this, and for the reasons stated hereinabove, this Court would not like to entertain the petition Under Article 32 for the relief of quashing the FIR being investigated at the NM Joshi Police Station in Mumbai which can be considered by the High Court. Therefore, we are of the opinion that the Petitioner must be relegated to avail of the remedies which are available under the Code of Criminal Procedure before the competent court including the High Court. 77. We respectfully agree with the aforesaid ratio. Ordinarily we would have relegated the Petitioner and asked him to approach the concerned High Court for appropriate relief, albeit in the present case detailed arguments have been addressed by both sides on maintainability and merits of the FIRs in question and, therefore, been dealt with by us and rejected at this stage. We do not, in view of this peculiar circumstance, deem it appropriate to permit the Petitioner to open another round of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 80. We are conscious and aware of the decisions of this Court in Bhajan Lal, P.P. Sharma and the earlier decision in R.P. Kapur which held that the High Court, in exercise of inherent jurisdiction, can quash proceedings in a proper case either to prevent abuse of process or otherwise to secure ends of justice. These could be cases where, manifestly, there is a legal bar against institution or continuance of the prosecution or the proceedings, such as due to requirement of prior sanction; or where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the Accused; or where the allegations in the FIR do not disclose a cognizable offence; or where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the Accused. Another qualifying category in cases where charge-sheet is filed would be those where allegations against the Accused do constitute the offence alleged, but there is either no l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 173 Code of Criminal Procedure. The Court held that there can be no second FIR where the information concerns the same cognisable offence alleged in the first FIR or the same occurrence or incident which gives rise to one or more cognisable offences. This is due to the fact that the investigation covers within its ambit not just the alleged cognisable offence, but also any other connected offences that may be found to have been committed. This Court held that once an FIR postulated by the provisions of Section 154 has been recorded, any information received after the commencement of investigation cannot form the basis of a second FIR as doing so would fail to comport with the scheme of the Code of Criminal Procedure. The court observed: 18. ...All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling Under Section 162 Code of Criminal Procedure. No such information/sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ram Lal Narang ), Kari Choudhary v. Mst. Sita Devi ( Kari Choudhary ) and State of Bihar v. J.A.C. Saldanha ( Saldanha ). The Court noted that in Kari Choudhary, this Court held that: 11. ...Of course the legal position is that there cannot be two FIRs against the same Accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. 30. In Saldanha, this Court had held that the power conferred upon the Magistrate Under Section 156(3) does not affect the power of the investigating officer to further investigate the case even after submission of the report Under Section 173(8). In Upkar Singh, this Court noted that the decision in Ram Lal Narang is in the same line as the judgments in Kari Choudhary and Saldanha and held that the decision in T.T. Antony does not preclude the filing of a second complaint in regard to the same incident as a counter complaint nor is this course of action prohibited by the Code of Criminal Procedure. In that context, this Court held: 23. Be that as it may, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the subject matter of the FIRs is the same incident, same occurrence or are in regard to incidents which are two or more parts of the same transaction. If the answer to the question is affirmative, then the second FIR need not be proceeded with. 82. In Arnab Ranjan Goswami's case, the proceedings in the subsequent FIRs were quashed as the counsel for the complainants in the said case had joined the Petitioner in making the said prayer. However, in the present case, we would like to follow the ratio in T.T. Antony which is to the effect that the subsequent FIRs would be treated as statements Under Section 162 of the Code of Criminal Procedure. This is clear from the following dictum in T.T. Antony: 18. An information given Under Sub-section (1) of Section 154 Code of Criminal Procedure is commonly known as first information report (FIR) though this term is not used in the Code. It is a very important document. And as its nickname suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Magistrate concerned even earlier that investigation is being directed against the person suspected to be the Accused. 83. This would be fair and just to the other complainants at whose behest the other FIRs were caused to be registered, for they would be in a position to file a protest petition in case a closure/final report is filed by the police. Upon filing of such protest petition, the magistrate would be obliged to consider their contention(s), and may even reject the closure/final report and take cognizance of the offence and issue summons to the Accused. Otherwise, such complainants would face difficulty in contesting the closure report before the Magistrate, despite and even if there is enough material to make out a case of commission of an offence. 84. Lastly, we would also like to clarify that Section 179 of the Code of Criminal Procedure permits prosecution of cases in the court within whose local jurisdiction the offence has been committed or consequences have ensued. Section 186 of the Code of Criminal Procedure relates to cases where two separate charge-sheets have been filed on the basis of separate FIRs and postulates that the prosecution would procee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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