2020 (12) TMI 1216 - SC - Indian Laws

Vires of The Places of Worship (Special Provisions) Act 1991 - Petitioner while hosting the debate had described Pir Hazrat Moinuddin Chishti also known as Pir Hazrat Khwaja Gareeb Nawaz as Terrorist Chishti came. Terrorist Chishti came. Robber Chishti came-thereafter the religion changed imputing that the Pir Hazrat Moinuddin Chishti a terrorist and robber had by fear and intimidation coerced Hindus to embrace Islam. - It is alleged that the Petitioner had deliberately and intentionally insulted a Pir or a pious saint belonging to the Muslim community revered even by Hindus and thereby hurt and incited religious hatred towards Muslims. Whether the FIR should be quashed? - HELD THAT - The debate-show hosted by the Petitioner was broadcast on a widely viewed television network. The audience including the complainants were located in different parts of India and were affected by the utterances of the Petitioner; thus the consequence of the words of the Petitioner ensued in different places including the places of registration of the impugned 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. Hate Speech - HELD THAT - Speech should have no redeeming purpose which means that the speech primarily carries no meaning other than hatred towards a particular group . This is necessarily subjective and requires examination of good faith and good motives on the part of the speaker. No legitimate purpose principle being abstract has difficulties albeit is well documented. Good faith and no legitimate purpose exclusions are accepted as a good exception. Decisions of this Court and High Courts interpreting Article 19(1)(a) and 19(2) of the Constitution and Sections 153A 295A and Clause (2) of Section 505 of the Penal Code - HELD THAT - The present case it is stated does not relate to hate speech causally connected with the harm of endangering 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 - In consonance with the constitutional mandate of reasonable restriction and doctrine of proportionality in facts of each case it has to be ascertained whether the act meets the top of Clapham omnibus test and whether the act was likely to lead to disturbance of the current life of the community so as to amount to disturbance of public order; or it may affect an individual or some individuals leaving the tranquillity of the society undisturbed. 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 - 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 of view or actions of another person-it requires that the speaker should actively incite the audience to cause public disorder. This active incitement can be gauged by the content of the speech the context and surrounding circumstances and the intent of the speaker. However in case the speaker does not actively incite the descent into public disorder and is merely pointing out why a certain person or group is behaving in a particular manner what are their demands and their point of view or when the speaker interviews such person or group it would be a passive delivery of facts and opinions which may not amount to promotion. In the context of hate speech including the offences related to promoting disharmony or feelings of enmity hatred or ill-will and insulting the religion or the religious beliefs it would certainly require the actual utterance of words or something more than thought which would constitute the content. Without actual utterance etc. it would be mere thought and thoughts without overt act is not punishable. In the case of publication again a mere thought would not be actionable albeit whether or not there is an attempt to publish would depend on facts. The impugned act should be more than mere preparation and reasonably proximate to the consummation of the offence which has been interrupted. The question of intent would be relevant. Validity of First Information Reports (FIRs) - HELD THAT - 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. As per Clauses (1)(b) and (2) of Section 157 of the Code of Criminal Procedure a police officer may foreclose an FIR before investigation if it appears to him that there is no sufficient ground to investigate. At the initial stage of the registration the law mandates that the officer can start 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.

Summary

Issues Involved:
1. Quashing of FIRs.
2. Multiplicity of FIRs and clubbing with the first FIR.
3. Threat perception and security for the petitioner.

Issue-wise Detailed Analysis:

1. Quashing of FIRs:
The court rejected the contention that the FIRs should be quashed due to jurisdictional issues, stating that the debate-show was broadcast nationwide, affecting various locations. Section 179 of the Code of Criminal Procedure allows for the trial at the place where the act is done or its consequence ensues. The court emphasized that the FIRs do not suffer from jurisdictional defects. The petitioner’s defense under Section 95 of the Penal Code, claiming the act was trivial, was not entertained at this stage. The court highlighted the need to balance freedom of speech with the prohibition of hate speech, referring to various international and national legal standards. The court concluded that the investigation should proceed to ascertain the facts and intent behind the petitioner’s statements.

2. Multiplicity of FIRs and Clubbing with the First FIR:
The court cited the decision in T.T. Antony, which establishes that there can be no second FIR for the same incident. Subsequent FIRs should be treated as statements under Section 162 of the Code of Criminal Procedure. This ensures that the investigation covers all aspects without duplicating efforts. The court transferred all FIRs to the police station where the first FIR was registered, i.e., P.S. Dargah, Ajmer, Rajasthan. This consolidation prevents harassment and ensures a coherent investigation process.

3. Threat Perception and Security for the Petitioner:
The court directed the State of Uttar Pradesh to assess the threat perception for the petitioner and his family and take necessary steps. Similar instructions were given to the State of Rajasthan. This ensures the petitioner’s safety while the investigation proceeds.

Conclusion and Relief:
The court declined to quash the FIRs but granted interim protection to the petitioner against arrest, provided he cooperates with the investigation. All pending FIRs related to the telecast were transferred to P.S. Dargah, Ajmer. The states were instructed to evaluate and address the petitioner’s security concerns. The writ petition and all pending applications were disposed of accordingly.