Delhi HC Extends Interim Protection Granted To Vinod Dua In An FIR Accusing Him of Spreading Communal Enmity Through His YouTube Show

While extending the interim protection, the Single Bench of Justice Anup Jairam Bhambhani noted that since a similar matter is pending before the Supreme Court, the hearing in the present matter shall be adjourned till the decision of the Supreme Court is received.

The court said:

'Even if the present case and the case pending before the Supreme Court arise from different FIRs and refer to different webcasts, the essence of both is the same. Therefore, the decision of the Supreme Court shall be awaited as the same will have a bearing on this matter.'

In the last hearing, while holding that there's no prima facie case against Mr Dua to warrant the registration of FIR, the Single Bench of Justice Anup Jairam Bhambhani had noted that there is no allegation that any adverse consequences, in terms of enmity, hatred or ill-will, muchless any violence or breach of peace, occurred as a consequence of the webcast.

The FIR, which was filed by Mr Naveen Kumar, complained about a section of Vinod Dua's YouTube show which had talked about the riots that had happened in northeast district of Delhi.

The FIR further recorded that Mr Vinod Dua, through his webcast, is spreading rumours and misinformation about the sensitive issue of the

Delhi riots; and that his comments/remarks in the webcast contain communal overtones, which during the current COVID crisis, is causing public disaffection, which shall cause hatred and ill-will between different communities.

Senior Advocate Vikas Singh, who appeared for the Petitioner, had submitted that even though anticipatory bail has been granted to the Petitioner the continuance of investigation would amount to serious harassment of the petitioner who would be repeatedly called to the police station.

Mr Singh had further argued that the complaint has not been made by some member of the common public who may be aggrieved but by a person who is admittedly a spokesperson of a ruling political party at the Centre.

It was also argued by the Petitioner that there is no explanation for the inordinate delay in making the complaint and registration of the FIR, which was made more than 70 days after the webcast.

Mr Piyush Singhal, who appeared for the state, had submitted that investigation in the matter is at a nascent stage, notice has only been issued to YouTube, and that the Petitioner has so far not even been called for investigation.

Mr Singhal had further submitted that:

'narration made in the offending webcast to the effect that Delhi Police should issue a fact-sheet indicating as to how many people from the minority community were picked-up and arrested; from where; in what condition and under what threat, amounts to propagating alarming news with intent to create or promote enmity, hatred or ill-will between classes,which is an offence punishable under section 505(2), and which is both cognizable and non-bailable.'

Observations of the Court In The Last Order

While referring to the offence under sections 505(2) and 153A of the IPC, the court referred to the Supreme Court judgment in Manzar Sayeed Khan vs. State of Maharashtra which held that the gravamen of the offence of creating enmity between different communities, that there should be reference to a second community and the offence cannot proceed on the basis of an allegation where only one community has been mentioned.

While prima facie holding that there is substantial unexplained delay in filing of the complaint and registration of the FIR, the court observed that what the complainant alleges was said in the webcast, is not what appears in the transcript of the webcast and to that extent no cognizable offence is disclosed on the basis of the material cited by the complainant warranting registration of an FIR.

The court further noted that naming the three persons in the webcast and questioning the police inaction against those persons, is based on what was recorded in the Division Bench order dated 26.02.2020 in W.P.(Crl.) No.565/2020; and therefore appears to fall within the exception to section 505, at least on first blush.

The court said:

'That in view of the above factual picture, it prima-facie appears that the registration of the FIR requires to be examined on the touchstone of the law as laid down in the above-referred judicial precedents, since the steps taken so far by the State do not appear to be in consonance with such law and do not inspire much confidence.'

The court, however, also stated that without forming an opinion on the merits of this matter, this court is persuaded to think that the filing of the complaint and registration of the FIR deserve to be considered and deliberated further, before allowing investigation to proceed against the Petitioner.