Delhi HC sets aside order directing registration of FIR against VHP leader Alok Kumar over hate speech complaint by Harsh Mander
The Delhi High Court on Friday set aside an order which had directed lodging of an FIR against Vishva Hindu Parishad (VHP)’s International Working President 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.
The High Court’s order said the continuation of criminal proceedings against the petitioner would result in abuse of the 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 the 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 the 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 judgment.
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.
VHP leader Alok 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 Harsh Mander relates to an incident of July 9, 2019, when a public meeting was organized by Vishwa Hindu Parishad at Lal Kuan, Hauz Qazi here, where one ‘swami’ from Kashi had delivered a speech, alleged to be provocative.
Former IAS officer and activist 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 the lodging of an FIR against swami and Kumar on the ground that he was the international working president of VHP which had organized the public meeting.
The High Court said that even if it is presumed that the meeting had been organized by the petitioner, which is not even alleged by the complainant, it could not have been held that it amounted to the 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 that he submitted to 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.
The High Court said the magistrate’s order reflects a lack of application of judicial mind and absence of reasons bringing into question the propriety of an order is 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 the initiation of criminal proceedings,” the High Court said. It added that a person cannot be made to face criminal trial for 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 a divide rather than uniting 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.
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Do a session on how Kujriwal has brought Yasin Mallik to Supreme Court directly by taking from Tihar Jail…etc. NOT covered by any mainstream media. Yasin Mallik who is in jail without parole is protected by Kujriwal