SC refuses to quash FIRs for remarks on Sufi saint Khwaja Moinuddin Chisti but Amish Devgan not to be arrested pending investigation

Supreme Court: The 2-judge bench of AM Khanwilkar and Sanjiv Khanna, JJ has refused to quash the FIRs registered against News18 Journalist Amish Devgan for using the term “Lootera Chisti” in one of his shows but has granted interim protection to him against arrest subject to his joining and cooperating in investigation till completion of the investigation.

The Court, however, accepted the prayer for transfer of all pending FIRs in relation to and arising out of the telecast/episode dated 15th June 2020 to P.S. Dargah, Ajmer, Rajasthan, where the first FIR was registered and also asked the concerned states to examine the threat perception of the petitioner and family members and take appropriate steps as may be necessary.

Background

On 15th June, 2020, Devgan had hosted a debate on his show ‘Aar Paar’ on News18 India on the Places of Worship (Special Provisions) Act, 1991 which, while excluding Ayodhya, prohibits conversion and provides for maintenance of the religious character of places of worship as it existed on 15th August, 1947. Some Hindu priest organisations had challenged vires of this Act before the Supreme Court, and reportedly a Muslim organization had filed a petition opposing the challenge.

The petitioner, while hosting the debate, had described Pir Hazrat Moinuddin Chishti, also known as Pir Hazrat Khwaja Gareeb Nawaz, as “aakrantak Chishti aya… aakrantak Chishti aya… lootera Chishti aya… uske baad dharam badle”. Translated in English the words spoken would read – “Terrorist Chishti came. Terrorist Chishti came. Robber Chishti came – thereafter the religion changed,” imputing that ‘the Pir Hazrat Moinuddin Chishti, a terrorist and robber, had by fear and intimidation coerced Hindus to embrace Islam.’

Devgan later tweeted an apology along with a clarification that he has faith in Banda Nawaz Hazrat Khwaja Moinuddin Chishti and has also gone on Ziyarat pilgrimage to Ajmer Sharif to offer respects and to worship. Expressing regret, he said that the attributed words were uttered inadvertently and by mistake; in fact, he wanted to refer to Alauddin Khilji and not Gareeb Nawaz Khwaja Moinuddin Chishti.

Here’s what he tweeted:

Analysis

On refusal to quash the FIRs

Rejecting the contention that criminal proceedings arising from the impugned FIRs ought to be quashed as these FIRs were registered in places where no ‘cause of action’ arose, the Court held that Section 179 of the Criminal Code provides that an offence is triable at the place where an act is done or its consequence ensues.

“The debate-show hosted by the petitioner was broadcast on a widely viewed television network. The audience, including the complainants, were located in different parts of India and were affected by the utterances of the petitioner; thus, the consequence of the words of the petitioner ensued in different places, including the places of registration of the impugned FIRs.”

After going through the relevant portions of the transcript of the debate anchored by the petitioner, the Court noticed that it was apparent that Devgan was an equal co-participant, rather than a mere host. The transcript, including the offending portion, would form a part of the ‘content’, but any evaluation would require examination and consideration of the variable ‘context’ as well as the ‘intent’ and the ‘harm/impact’. These have to be evaluated before the court can form an opinion on whether an offence is made out. The evaluative judgment on these aspects would be based upon facts, which have to be inquired into and ascertained by police investigation. ‘Variable content’, ‘intent’ and the ‘harm/impact’ factors, as asserted on behalf of the informants and the State, are factually disputed by the petitioner. In fact, the petitioner relies upon his apology, which as per the respondents/informants is an indication or implied acceptance of his acts of commission.

The Court, hence, concluded that it would not be appropriate at this stage to quash the FIRs and thus stall the investigation into all the relevant aspects.

Directing that no coercive steps for arrest of the petitioner need be taken by the police during investigation, the Court said that

“In case and if charge-sheet is filed, the court would examine the question of grant of bail without being influenced by these directions as well as any findings of fact recorded in this judgment.”

On transferring and clubbing all FIRs with the first FIR registered at P.S. Dargah, Ajmer, Rajasthan

In Babubhai v. State of Gujarat, (2010) 12 SCC 254 the test to determine sameness of the FIRs has been elucidated as when the subject matter of the FIRs is the same incident, same occurrence or are in regard to incidents which are two or more parts of the same transaction. If the answer to the question is affirmative, then the second FIR need not be proceeded with.

Further, in T.T. Antony v. State of Kerala, (2001) 6 SCC 181 it was held that the subsequent FIRs would be treated as statements under Section 162 CrPC.

Relying on this the Court directed that all the subsequent FIRs be transferred to PS Dargah, Ajmer and the statement of the complaint/informant forming the basis of the transferred FIRs would be considered as statement under Section 162 of the Criminal Code and be proceeded with.

Justifying it’s decision, the Court said,

“This would be fair and just to the other complainants at whose behest the other FIRs were caused to be registered, for they would be in a position to file a protest petition in case a closure/final report is filed by the police. Upon filing of such protest petition, the magistrate would be obliged to consider their contention(s), and may even reject the closure/final report and take cognizance of the offence and issue summons to the accused. Otherwise, such complainants would face difficulty in contesting the closure report before the Magistrate, despite and even if there is enough material to make out a case of commission of an offence.”

It was further explained that Section 186 CrPC relates to cases where two separate charge-sheets have been filed on the basis of separate FIRs and postulates that the prosecution would proceed where the first charge-sheet has been filed on the basis of the FIR that is first in point of time. Principle underlying section 186 can be applied at the pre-charge-sheet stage, that is, post registration of FIR but before charge-sheet is submitted to the Magistrate.

“In such cases ordinarily the first FIR, that is, the FIR registered first in point of time, should be treated as the main FIR and others as statements under Section 162 of the Criminal Code. However, in exceptional cases and for good reasons, it will be open to the High Court or this Court, as the case may be, to treat the subsequently registered FIR as the principal FIR. However, this should not cause any prejudice, inconvenience or harassment to either the victims, witnesses or the person who is accused.”

[Amish Devgan v. Union of India, 2020 SCC OnLine SC 994, decided on 07.12.2020]


*Justice Sanjiv Khanna has penned this judgment

Also read: Freedom & rights cannot armour those who promote & incite violence| 15 notable excerpts on ‘hate speech’ from Supreme Court’s verdict in Amish Devgan case

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