Delhi High Court Refuses To Stay Trial Of BJP Leader Kapil Mishra In 2020 FIR For Alleged Communal Tweets

The Delhi High Court on Tuesday refused to stay trial court proceedings against BJP Minister Kapil Mishra in relation to an FIR filed against him in 2020 over his tweets that the AAP and Congress parties had created a “mini Pakistan” at Shaheen Bagh and that the then Assembly polls would be a contest between “India and Pakistan”.

Justice Ravinder Dudeja refused to stay trial court proceedings against Mishra and issued notice on his petition challenging an order passed by the special judge earlier this month, dismissing his revision plea against a magisterial order summoning him in the matter.

Senior Advocate Mahesh Jethmalani appeared for Mishra and submitted that in the tweets, there was no reference to any two communities or groups which is a prerequisite of Section 125 of Representation of the People Act, 1951- under which the FIR was filed.

Section 125 of Representation of the People Act, 1951 provides for the offence of promoting enmity or hatred between different classes of citizens in connection with an election.

Jethmalani said that in order to invoke the offence, reference to two communities, groups or religious communities are essential which was not done in the case.

He said that Mishra's tweets only meant that it will be a contest between those who oppose the CAA and those who don't, without any reference to any religious group- in particular Hindus and Muslims.

Jethmalani submitted that Section 125 of RP Act is non cognizable and that the FIR could not have been registered without following due procedure under Section 155(2) of CrPC.

He submitted that the alleged tweets were not intended to promote the feeling of enmity or hatred between different classes nor the statements lead to any such situation being created during the relevant period.

Jethmalani also said that Mishra's tweets were made during the elections in order to criticise the anti-social and anti-national elements who were intending to spoil the atmosphere under the guise of anti-CAA movement.

The plea was opposed by the counsel appearing for the Delhi Police who submitted that there have been concurrent findings of two courts on the issue and the arguments raised by Jethmalani can be taken up at the stage of framing of charges.

He submitted that there was no mention of CAA in Mishra's tweets which were intended to promote hatred against two religious communities. He also said that Section 125 of RP Act is cognizable.

Observing that the matter requires consideration, Justice Dudeja issued notice on the plea and directed the Delhi Police to file its response within four weeks.

As Jethmalani requested the Court to stay the trial court proceedings citing likelihood that the trial court may proceed with framing of charges, the Court remarked:

“Let the proceedings continue. In case a favourable finding comes tomorrow, all proceedings would go…. You won't be prejudiced due to continuation of trial. Even if tomorrow the petition is accepted, everything will go…. No need to stay the trial. Sorry.”

“The trial court is at liberty to proceed further. At this stage, the senior counsel for the petitioner requested that a direction be issued to the trial court that in case it proceeds with framing of charges, it should not be influenced by the observations of the sessions court made on the merits of the case. It is made clear that while considering the question of framing of charges, the trial court will make independent assessment on the basis of the submissions made by the respective sides,” the Court ordered.

The matter will now be heard on May 19.

While dismissing Mishra's revision plea, the special judge observed that the word 'Pakistan' was very skillfully weaved by him in his alleged statements to spew hatred, careless to communal polarisation that may ensue in the election compaign, only to garner votes.

The FIR was registered against Mishra after a letter was received from the office of Returning Officer alleging that he violated the Model Code of Conduct and Representation of People Act. It was alleged that Mishra made the tweets with the object to promote enemity between classes in connection with Delhi Legislative Assembly Elections, 2020.

In June last year, a magisterial court passed the summoning order against Mishra which was upheld by the special judge.

The special judge had rejected Mishra's argument that his statement nowhere referred to any caste, community, religion, race and language but had referred to a country which was not prohibited under Section 125 of RP Act.

The trial court had added that Mishra's statements were a brazen attempt to promote enmity on the grounds of religion by way of indirectly referring to a 'country' which “unfortunately in common parlance” is often used to denote the members of a particular religion.

Title: Kapil Mishra v. State