Punjab and Haryana High Court Quashes FIRs against Tajinder Pal Singh Bagga, Kumar Vishwas
There cannot be any democracy without freedom of choice and free speech: Court
The Punjab and Haryana High Court on Wednesday quashed an FIR against the BJP leader Tajinder Pal Singh Bagga, who was accused by Punjab Police of spreading misinformation and communal disharmony, and posting inflammatory statements against Delhi Chief Minister Arvind Kejriwal.Justice Anoop Chitkara in the order said the purported statement of Bagga is a "protest" against the statement made...
The Punjab and Haryana High Court on Wednesday quashed an FIR against the BJP leader Tajinder Pal Singh Bagga, who was accused by Punjab Police of spreading misinformation and communal disharmony, and posting inflammatory statements against Delhi Chief Minister Arvind Kejriwal.
Justice Anoop Chitkara in the order said the purported statement of Bagga is a "protest" against the statement made by Aam Aadmi Party leader and Delhi Chief Minister Arvind Kejriwal.
"Being a political activist and an official spokesperson of a political party, as a shadow of the incumbent, it was well within his rights to make the people aware of the response of an opposite political leader. Democracy is all about informing the people and creating sentiments, and it would be an offence only if campaigning is full of hatred, or there is an involvement in malicious activities, or derogatory and vicious statements are made to gain political mileage," said the court.
The Case
Bagga had criticised Kejriwal after the release of 'The Kashmir Files' movie and demanded entertainment tax exemption for it in Delhi. According to Bagga, Kejriwal not only refused to grant any such concession but "allegedly also mocked the authenticity of the movie's storyline". Bagga had demanded an apology from the Delhi CM.
A written complaint was given to Cyber Crime Cell of Punjab Police in April against Bagga and others accusing him of causing instigation and incitement with his statements. The complaint by an Aam Aadmi Party leader also accused Bagga of issuing inflammatory statements to outrage religious feelings and cause disharmony. The complaint also accused him of spreading falsehood and making communally divisive statements against Kejriwal.
A Special Investigation Team was constituted by Punjab Police after registration of FIR on the complaint. Bagga's counsel before the HC argued that words used were, "BJP yuva morcha ka ye karyakarta inhen jine nahin dega" and the context in which they were spoken by no stretch of the imagination would mean or imply assassination or criminal intimidation.
"The complainant deliberately omitted the last part of the petitioner's statement, where he had cautioned Mr. Arvind Kejriwal, that he would to continue to agitate until Mr. Kejriwal retracts his statement questioning the genocide of Hindus in Kashmir," Senior Advocate R S Rai, argued before the court.
On the other hand, Senior Advocate Puneet Bali for the Punjab state argued that investigation is at its nascent stage and despite notices, Bagga didn't turn up to join the investigation.
"The accused intended to convey misinformation, spread communal disharmony, and create a hostile and vicious environment through them," Bali argued.
Findings
Justice Chitkara said that the phrase 'jheene nahi dhoonga' cannot be seen independent of the entire statement made by Bagga, while rejecting the argument that it was an act of criminal intimidation or a threat to kill.
"Further the context and the behavior, particularly criminal, is also a material factor in arriving at a conclusion in such situations. If a gangster, mafia, or a recidivist makes a statement that he will not let somebody live, the first probable reasonable assumption that is likely to be drawn is a threat to assassinate, however, an ordinary person, e.g., a nagging spouse or a disgruntled boss, makes such a statement in response to the doing or undoing of something, it would altogether have a different first impression," the court said further.
However, the court said the list of FIRs, presented by Punjab Police, against Bagga shows these are all non-serious offences registered a decade earlier and lacks proximity to the interview.
"Thus, based on this criminal history, there is nothing to assume that the petitioner is a habitual offender, or a gangster, or a mafia, or an anti-social element. In the given context, the petitioner's assertion that 'Agar wo maafi nahi mangte to Bhartiya Janta Yuva Morcha ka ye Karyakarta unhe jine nahi dega' reasonably amounts only to making somebody's life restless with nagging about the undoing of an act," said the court.
The court also said that merely because the language used by Bagga is unrefined, it cannot be sufficient to "import hatred, detestation or slander to its contents".
"There is nothing in the statement to take the speech as an insult or threat, or an attempt to vilify the members of the targeted group or that it stigmatized them. There is nothing in the speech which points towards the petitioner's intention to divide the communities on regional and religious lines. The petitioner's agitation cannot be termed other than political, and there is no evidence of any specific incident in the complaint that led to the peace breach because of the statement. There is nothing to infer that the statement was so inciting that it would fall within the purview of hate speech and that it led to any violence or made fault lines in the structures of communities," said the court.
The court further said that although the statement appears to be crude and uncouth, it does not have any disguised or obscured meaning.
"The statement was not a vitriolic diatribe and cannot be read so narrowly that its delivery was to only spread hatred towards a particular group. Thus, even if the statement of the petitioner on its face value, is admitted as correct, still prima facie, no offence under any of the sections in the FIR captioned above, is made out," it said.
On invoking Section 153-A IPC against Bagga, the court said even if his statement is taken as gospel truth, it still does not imply such statement is prejudicial to maintaining harmony among the different sections of society.
On the charge of criminal intimidation against him, the court said the intimidation was not made to the complainant but allegedly to Kejriwal.
"Without even considering the complainant's locus to make such a complaint, a bare reading of the contents of the interview of the petitioner do not point out any particular criminal intimidation. It only appears that the objective was to create pressure by taking a tough stand, and by no stretch of the imagination, it would make out an offence under Section 506 IPC," it added.
On the allegation that Bagga's statements amounted to public mischief, the court said the contents of his statement do not reveal that it was intended to cause or likely to cause any fear or alarm in people.
"Even if this statement is widely circulated, there is still no evidence that it led to hatred or ill will between different religions, regional groups, or communities. Thus, Sections 505 and 505(2) IPC are not attracted, considering the prima facie and straightforward analysis of the petitioner's statement," said the court.
The court also said Bagga had only put forth his displeasure as the party in power in Delhi did not accept his demand to make the movie tax-free. "It was well within his rights to raise such protests," said the court.
After perusing all the tweets and posts of Bagga, the court said there is no allegation that he had posted them "by entering the State of Punjab, or any incident had taken place within its territories due to such tweet. Every post of the petitioner will not give territorial jurisdiction to the State of Punjab to investigate in the guise of the present FIR."
The court also said, "Had the investigating agency of another State been given that much leverage, it would impact the federal structure under the Indian Constitution, where every State has the right to maintain law and order within its territorial boundaries."
Justice Chitkara also said a perusal of the tweets shows that the same are part of a political campaign. "There is nothing in the investigation that the petitioner's statement created or would have created any communal hatred. Thus, even if all the allegations made in the complaint and subsequent investigation from social media posts, are true and correct at face value, they would not amount to a hate speech, and no case against the petitioner is made out," said the bench.
Quashing the FIR against Bagga, the court said it is a fit case where the continuation of proceedings will amount to an abuse of the process of law.
Meanwhile, the court has also quashed an FIR against former AAP leader Kumar Vishwas.
Justice Chitkara also quashed the FIR registered by Punjab Police against former AAP leader Kumar Vishwas. In the FIR registered in Rupnagar district, Vishwas was accused of provoking and abetting violence against the workers and supporters of Aam Aadmi Party by "levelling imputations" about Kejriwal's involvement with "certain nefarious and anti-social elements".
Senior Advocate R S Rai, who represented Vishwas also, said FIR is politically motivated and a gross abuse of power. Senior Advocate Puneet Bail, who represented the Punjab Police, argued that the investigation on crucial aspects is yet to be carried out and if the court quashes the FIR, it would amount to not letting the police fulfil its statutory obligation. Bali also referred to certain incidents which had occurred in Chamkaur Sahib constituency in February after Viashwas' interview.
However, Justice Chitkara said that the incidents of Chamkaur Sahib would have a separate cause of action and that they are not even mentioned in the complaint.
"Suppose all the allegations made in the complaint and the subsequent investigation are taken at the face value; still, there is not even an iota of evidence of any proximity between the interview and the incidents of Chamkaur Sahib, etc., and the one that had taken place on April 12, 2022, which are distinct criminal acts, and are neither an outburst of the interview of the petitioner given on Feb. 2022 nor did such interview snowball to make it happen," said the court.
The court also said that reading of the complaint against Vishwas does not does not mention the differences he created between the two groups, which had allegedly clashed after the interview, and that no information regarding the personal and religious identities of alleged perpetrators has been pointed out.
"It would be a travesty to conclude with absolute certainty that the interview was to create polarization and disharmony, when the comments were directed only at an individual and his alleged personal outlook on an issue," said Justice Chitkara.
On State's argument that Vishwas' interview led to clashes between two religious factions on April 29, the court said there is a lack of proximity between the incident and the time of interview.
"The State cannot be permitted to fish evidence now to connect a remote clash with the petitioner's statement. Thus, a prima facie perusal of the complaint/FIR and the investigation does not make out a case under section 153-A of IPC," it said.
The court also said even if every word of FIR and statement in the interview is taken as a gospel truth, it will still not constitute any offence under Section 153-A as the element of culpability and intention is missing.
On Section 505 IPC against Vishwas, the court said even if the video interview is hypothetically taken as baseless and a total lie, still there is no material to suggest intention or that it created or promoted enmity, hatred or ill-will between the classes.
"S. 341 of IPC makes wrongful restraint a penal offence. The incident where the unknown persons had wrongfully restrained the complainant on April 12 was linked to the petitioner's video, is nothing more than an assumption. Such an incident would certainly not make out any offence against the petitioner because admittedly he was neither present nor any person acting on his behest and directions restrained the complainant and his associates," said the court.
On invoking of Section 125 of Representation of the People Act against Vishwas, the court said the complainant did not allege that the former AAP member was carrying forward an agenda of some party or was himself contesting the election.
"A threadbare reading of the interview transcript or the complaint does not even remotely point towards the petitioner's intention to do any act which would fall under this penal provision," the bench said.
The court also said, "There cannot be any democracy without freedom of choice and free speech."
Senior Advocates Randeep Singh Rai and Chetan Mittal represented the petitioners.
Senior Advocate Puneet Bali, Additional Advocate General Prashant Manchanda and AAG B.S. Sewak represented the State of Punjab
Title: KUMAR VISHWAS V/S STATE OF PUNJAB AND ANOTHER
Title: TEJINDER PAL SINGH BAGGA V/S STATE OF PUNJAB AND ANOTHER
Citation: 2022 LiveLaw (PH) 270