'No Legal Evidence': Gauhati High Court Quashes Proceedings Against MP Subramanian Swamy In 2015 Hate Speech Case

The Gauhati High Court on Thursday quashed all orders pertaining to an alleged hate speech case registered against Rajya Sabha MP Dr Subramanian Swamy at the Additional Chief Judicial Magistrate's Court in Karimganj in 2015.

Justice Manish Choudhury passed the order in a petition filed by Swamy seeking to all quash all criminal proceedings connected with the case. The High Court on November 11 had reserved the judgment in the case after hearing both parties.

The Court quashed the orders which had allowed for the issuance of criminal proceedings and a non-bailable warrant against Swamy and accordingly observed,

"As the complaint does not make out any offence either under Section 153, IPC or under Section 298, IPC the criminal proceeding to that extent is also quashed. As the criminal prosecution against the petitioner for the offences under Section 153A and Section 295A of the Penal Code has been launched without any sanction under Section 196[1] of the Code, such criminal prosecution is held to be illegal. The continuance of the criminal proceeding ... would amount to abuse of the process of the Court."

Background

In the complaint filed before the Chief Judicial Magistrate at Karimganj on March 17, 2015 it was stated that the accused was an influential leader of the Bharatiya Janata Party (BJP), and religiously intolerant.

On March 14, 2015 Swamy had allegedly while interacting with the press, made some "derogatory, unconstitutional and provocative" remarks against Islam. He had allegedly stated that 'mosque is not a place of worship for Muslim people' and that 'if mosques were demolished the same could not be a ground to object'. It was contended that he had attempted to hurt the feelings of the people of Muslim religion by passing such remarks.

The complaint had further alleged that Dr Swamy had "attempted to hurt the feelings of the people of Muslim religion. Such provocative remarks had disturbed the peaceful religious scenario in the State of Assam" and had "given rise to serious apprehension in the minds of the people from Muslim faith residing in the State."

Observations

Pursuant to a perusal of the rival submissions, the Court at the outset observed that pursuant to Section 202 of the CrPC, there is an obligation on the magistrate to conduct an inquiry or direct investigation before the issuance of process.

"This Court is of the unhesitant view that due to failure on the part of the learned Magistrate to follow the mandatory procedure as envisaged in Section 202 of the Code the order dated 18.03.2015 issuing summons to the accused had suffered from infirmity and the same is liable to be set aside and quashed", the Court observed further.

Furthermore, the Court held that since the complainant is by no means a public servant, the examination of such a complainant on oath cannot be dispensed with without reducing the substance of such examination to writing under the provisions of Section 200 of the CrPC.

"The mandatory provision requiring the complainant in the instant case who is not a public servant or who was not examined by any other Magistrate at any prior point of time in relation to the complaint, could not have been dispensed with by the learned Magistrate before issuing the process against the accused. On this ground also, the impugned order dated 18.03.2015 has suffered from infirmity and is liable to be set aside and quashed", the Court further observed.

The Court further noted that for an offence under Section 153 of the IPC to apply, the act has to be done malignantly or wantonly with an intention of causing riots. However, in the instant case the Court observed that the complainant had himself not heard the utterances alleged and accordingly remarked,

"The complainant had only taken the help of newspaper reports to allege that the accused person had made the alleged comments before the media persons, that too, without entering himself into the witness box to depose in order to support his such accusations...As no offence under Section 298 of the Penal Code is made out, the criminal proceeding against the accused in so far as the said offence is concerned, is liable to be set aside and quashed."

It further held that the Magistrate could not have taken judicial notice of the facts stated in those newspaper reports without any other supporting materials.

"In the said fact situation, it is apparent that there was no legal evidence before the learned trial court when it took cognizance on the complaint...continuance of the criminal proceeding would amount to abuse of the process of the Court," the Court observed further.

Accordingly, the Court accordingly set aside and quashed all criminal proceedings in the matter.

Case Title: Dr Subramanian Swamy v. State of Assam

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