Delhi High Court: A petition was filed by the petitioner working as the International Working President of Vishwa Hindu Parishad, who had organised the public meeting. under Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC’) seeking the indulgence of the Court for quashing the impugned order dated 18-02-2020, whereby the Station House Officer (hereinafter ‘SHO’), Police Station Hauz Qazi, Delhi was directed to register an FIR under appropriate sections of law based on a complaint filed by respondent 1. Swarana Kanta Sharma, J., sets aside the impugned order since the complaint filed before the Magistrate did not fulfill the criteria of the presence of incriminating material disclosing any connection of the petitioner with the alleged act of organising the speech delivered by one Swami ji, whose identity remains unknown.
An application was filed under Section 156(3) CrPC by respondent 1 in the backdrop of an incident that allegedly took place on 01-07-2019 on the issue of parking, wherein some Muslim youth had broken the glass windows and idols of Hindu Gods and Goddesses at Durga Mandir, Lal Kuan Hauz Qazi, Delhi, and had gathered outside the temple for raising pro-Islam slogans. Consequently, the police registered an FIR under Sections 147, 148, 149, 186, 295, 34, 353, 332, 153(A), 436 of Indian Penal Code, 1860. During the investigation, a total of 18 accused, including 09 Children in Conflict with Law (CCL), were arrested/ apprehended. The grievance of respondent 1, however, relates to an incident dated 09-07-2019, which allegedly took place on “Pran Pratishtha” of idols of Hindu Gods and Goddesses, where a Swami ji (identity unknown) had come to Delhi from Kashi and had delivered a speech, alleged to be provocative and being the center of entire controversy in the present case.
Respondent 1 filed a complaint with the SHO whereby he had alleged that the remarks made by unknown Swami ji in his speech delivered designed to provoke riots; promote enmity and ill-will between communities as well as comment prejudicial to national integration, outrage the religious sentiments of the Muslim community, causing public mischief intending to incite members of one community to commit violence against members of another community and promote enmity and ill-will between two different religious communities.
The Metropolitan Magistrate directed the SHO to conduct an inquiry and submit a report. Later, the Additional Chief Metropolitan Magistrate, Tis Hazari Courts, Delhi directed the concerned SHO to register an FIR against the proposed accused persons, including the present petitioner, under appropriate provisions of law. The petitioner is aggrieved that the complaint was purely malicious and motivated by questioning his patriotism and injuring his reputation without any reason and prays that this Court not only examines the same but also initiates proceedings under Section 182 CrPC against respondent 1.
On the aspect of whether the order passed under Section 156(3) CrpC directing registration of the FIR merits quashing or not, the Court noted that respondent 1 had not leveled any allegation against the petitioner in the complaint which he had lodged with the concerned police officials. Given that the allegations leveled by respondent no. 1 primarily pertain to an alleged hate speech delivered by proposed accused 2 and considering that there is no concept of vicarious liability in criminal law regarding such alleged offences, initiating criminal proceedings against the present petitioner would undoubtedly constitute an abuse of the legal process.
The Court further noted that the Magistrate overlooked the crucial distinction between the duty imposed on the police under Section 154 CrPC to register an FIR when a complaint reveals a cognizable offence, and the powers vested in Magistrates under Section 156(3) CrPC which necessitates the application of judicial mind and scrutiny of the material on record. The impugned order passed by the Magistrate reflects lack of application of judicial mind, because:
(a) it fails to record any reasons whatsoever for directing registration of FIR;
(b) it does not record as to commission of which cognizable offences was disclosed from the perusal of complaint and application filed before it, against the proposed accused persons; and
(c) it fails to acknowledge or refer to the contents of preliminary inquiry conducted by the police and submitted before the concerned Magistrate by way of Action Taken Report, even for the purposes of disagreeing with the same and ordering registration of FIR, even though the learned Magistrate had himself called for the same.
Thus, However, an unmeritorious complaint containing no incriminating material against an accused should not result in orders of registration of FIRs as such proceedings will certainly amount to abuse of process of criminal law.
The Court concluded that the Magisterial power may be unlimited but it is not unfettered and should be used not only with utmost caution and vigilance but also with circumspection after carefully going through the contents of the complaint and the Action Taken Report, if any, filed by the police. Thus, this is a fit case to invite the invocation of powers under Section 482 of CrPC to quash the order directing registration of the FIR based on the complaint and application filed under Section 156(3) CrPC against the present petitioner.
Considering no untoward incident had taken place after the alleged incident and the residents of the area belonging to both communities i.e. Hindus and Muslims had requested the police not to take cognizance of the complaint as there was no disharmony or apprehension of riots etc. in their area, the Court sets aside the impugned order.
[Alok Sharma v. Harsh Mander, 2023 SCC OnLine Del 4213, decided on 21-07-2023]
Advocates who appeared in this case :
Mr. Mohit Mathur, Senior Advocate, with Mr. Abhishek Atrey, Ms. Manisha Agarwal, Mr. Varun Maheshwari, Mr. Amit Kumar Singh, Mr. Manan Soni, Mr. Rahul Madan, Mr. Deepak Mittal, Mr. Rabi Kumar, Mr. Divyansh Vajpayee, Ms. Rakshita Goyal, Mr. Sandeep Singh, Mr. Ajay Saini and Mr. Sumit Mishra, Ms.Nirmala Singh and Mr. Harsh Gautam, Advocates for the Petitioner;
Mr. Daniyal Khan, Advocate for the R-1.
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