Case BriefsHigh Courts

Kerala High Court: The Bench of P.V. Kunhikrishnan, J., stayed the release of Malyalam film “Aquarium “apprehending it to be defamatory to the Roman Catholic Christians. The Bench opined that, this is a matter to be heard in detail.

The petition was filed to seek  stay on the operation of the certificate granted as per the certificate No. DIL/3/1/2020-THI pending disposal of the writ petition. According to the senior counsel the script of a cinema which is to be telecasted in OTT platform based on the above certificate is highly defamatory to the Roman Catholic Christians. It was alleged that there are defamatory statements about nuns.

The Bench, while refusing to make any observation about the contents of the script, opined, “there is a pandemic situation. The entire State is under lock down. The apprehension of the petitioners is that if the cinema by name ‘Aquarium’ is released in the online platform, it will damage the sentiments of the petitioners and their community. This is a matter to be heard in detail. The jurisdiction of this Court is also to be decided in detail.

Hence, the Bench passed an interim order to stay all further proceedings with regard to certification granted to the said film for a period of two weeks.

[Josia S.D v. Union of India, 2021 SCC OnLine Ker 2144, order dated 11-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Counsels for the Petitioner: George Poonthottam and John Varghese

Case BriefsSupreme Court

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

Case BriefsSupreme Court

Supreme Court: In the matter relating to alleged sacrilege of the holy book, Shri Guru Granth Sahibji in different places in Punjab,the single judge bench of Hrishikesh Roy, J has refused to transfer the Trial of criminal cases pending before the Courts at Bhatinda, Moga and Faridkot districts to competent Court in Delhi or to any nearby State, out of Punjab.

The transfer was sought on the ground that the case has generated deep anguish and bitterness amongst a particular religious group, who form majority of the population in the State of Punjab and therefore the accused who are members of the Dera Sacha Sauda sect, are facing bias and prejudice and are unlikely to get a fair trial in the face of strong presumption of culpability.

The Court, however, said,

“From the available material, this Court cannot reasonably conclude that the situation in Punjab is not conducive for a fair trial for the petitioners. The few instances mentioned by the petitioners’ counsel may suggest heightened feelings amongst different groups but they do not in my estimation, call for transfer of proceedings to another State.”

The Court, however, directed the State to make all arrangement to ensure safe conduct of proceedings at the trial courts and also provide adequate security to the petitioners and their associates as might be warranted from the security perspective.


Incidents in support of the contention that the accused were unlikely to get a fair trial in Punjab


  • the murder of the accused Mohinder Pal Singh Bittoo on 22.06.2019 inside the Nabha Central jail, showed the threat to the lives of other co-accused in the hands of the radical elements in the State.
  • public appeals have been made to socially boycott the accused and also to those dealing with them, such as lawyers, doctors and taxi drivers and these developments would indicate the serious difficulties faced by the accused in conducting their defence.
  • a forced statement under Section 164 CrPC was obtained from the petitioner which suggests that in Punjab, an unbiased prosecution cannot be ensured.
  • mass gathering in the court premises where these cases are listed on the given dates, shows the threat to the life of the accused since adequate arrangement and security has not been provided by the State.

Why the Supreme Court refused to transfer the trial


Explaining when can a trial be transferred from one Court to another, the Court said that the Court must be fully satisfied about existence of such factors which would make it impossible to conduct a fair trial. General allegation of surcharged atmosphere is not however sufficient.

“The apprehension of not getting a fair and impartial trial cannot be founded on certain grievances or convenience of the accused but the reasons have to be more compelling than that. No universal Rules can however be laid down for deciding transfer petitions and each one has to be decided in the backdrop of that case alone.”

Further, powers under Section 406 CrPC must be exercised sparingly and only in deserving cases when fair and impartial trial uninfluenced by external factors, is not at all possible. If the Courts are able to function uninfluenced by public sentiment, shifting of trial would not be warranted.

The transfer of trial from one state to another would inevitably reflect on the credibility of the State’s judiciary. Except for compelling factors and clear situation of deprivation of fair justice, the transfer power should not be invoked.”

For coming to the conclusion that the present bunch of cases do not fall under such exceptional categories and hence, cannot be transferred, the Court kept in mind the following considerations:

  • The petitioners have not moved out and continue to reside in the usual place of residence in the State and doing their work/business in a routine manner.
  • No specific instance of prejudice was brought to the Court’s notice on account of social boycott call or appeal to the Medical professionals or taxi operators, to deny co-operation.
  • No complaint was lodged before the court or to the authorities about any threat or intimidation.
  • While there is a specific instance of one of the defence lawyer disassociating himself from the case on personal ground, the two regular lawyers Mr. K.S. Brar and Mr. R.K. Rana continue to defend the accused since January, 2019 without any break or difficulty. This would suggest that petitioners defence is not being compromised in Punjab and they are receiving adequate legal assistance.
  • The matter emanates from the State of Punjab and the accused, the witnesses and the prosecutors are all from the State. If the trial is shifted out, all of them will face difficulties.
  • The State’s pleading shows that those accused who have a threat implication have been provided personal security by the district police and laborate arrangements have been made on orders of the State’s DGP and on the trial date, additional force are deployed in the concerned Courts, to ensure safety of the petitioners and all other stakeholders.
  • As the sacrilege incidents occurred in 2015, with passage of time, the atmosphere is expected to have mellowed down considerably. It has been more than 2 years since the petitioners were arrayed as accused in the cases. During this long period, no complaint has been made by the petitioners of any threat to their security or to their associates.
  • The petitioners who reside in different districts in Punjab are doing their work or business in a routine manner, without any inhibition.
  • Insofar as the death of the accused Bittoo in Nabha jail, the projection of the State is that he was murdered by jail inmates undergoing life imprisonment in some other cases and for this incident FIR under Section 302, 34, 120B IPC is registered in PS Sadar, Nabha, chargesheet has been filed and trial has commenced. Hence, at this stage it cannot be said if this incident has any link with the other cases or it is a standalone event.
  • The trial it at the stage of final arguments. The other five cases are at the stage of evidence or charge stage. It will therefore not be fair to the prosecution, the State and the witnesses who are yet to testify, to shift the proceeding without compelling reasons as it will inevitably delay the trial. One must also remember that convenience of all parties should be looked at and not just the party which is seeking transfer.

[Jatinderveer Arora v. State of Punjab, 2020 SCC OnLine SC 952, decided on 25.11.2020]


For Petitioners: Senior Advocate Ranjit Kumar

For Respondent: Senior Advocate Harin P Raval

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of AM Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna, JJ has yet again extended it’s order directing no coercive action to be taken against TV news anchor Amish Devgan in multiple FIRs lodged in several states over his alleged defamatory statements against Sufi saint Khwaja Moinuddin Chisti during a News Debate after the respondents sought one week’s time to file affidavits/further affidavits.

Listing the matter on 05.08.2020, the bench made it clear that the matter may proceed for final disposal on the next date.

“Ad-interim relief to continue till then.”

The Court had, earlier, granted stay against arrest of Amish Devgan on June 26.

The journalist had, in his News Show called “Aar Paar” dated 15.06.2020 aired at around 7:30 p.m, used the term Lootera Chisti, inviting reactions from the Muslim community. He, however, later tweeted an apology along with a clarification.

[Amish Devgan v. Union of India, 2020 SCC OnLine SC 574 , order dated 15.07.2020]

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and Dinesh Maheshwari, JJ has extended it’s order directing no coercive action to be taken against TV news anchor Amish Devgan in multiple FIRs lodged in several states over his alleged defamatory statements against Sufi saint Khwaja Moinuddin Chisti during a News Debate. The Court had, earlier, granted stay against arrest of Amish Devgan on June 26.

The journalist had, in his News Show called “Aar Paar” dated 15.06.2020 aired at around 7:30 p.m, used the term Lootera Chisti, inviting reactions from the Muslim community. He, however, later tweeted an apology along with a clarification.

[Amish Devgan v. Union of India, 2020 SCC OnLine SC 560 , order dated 08.07.2020]

 

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and Dinesh Maheshwari, JJ has directed that no coercive action is to be taken against TV news anchor Amish Devgan in multiple FIRs lodged in several states over his alleged defamatory statements against Sufi saint Khwaja Moinuddin Chisti during a News Debate. The Court has issued notice returnable on 08.07.2020.

The journalist had, in his News Show called “Aar Paar” dated 15.06.2020 aired at around 7:30 p.m, used the term Lootera Chisti, inviting reactions from the Muslim community. He, however, later tweeted an apology along with a clarification.

[Amish Devgan v. Union of India, 2020 SCC OnLine SC 542 , order dated 26.06.2020]

Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan and Sanjiv Khanna, JJ, on Friday, granted protection to activist lawyer Prashant Bhushan from any coercive action in an FIR lodged against him at Rajkot in Gujarat for allegedly hurting religious sentiments of the Hindus. In the proceedings conducted through video conferencing, the Court issued notice to the Gujarat Police and listed Bhushan’s plea after two weeks.

“In the meantime, no coercive action be taken against the petitioner in First Information Report No. 11209052200180 lodged on 12th April 2020 under Sections 295A/505(1)(b), 34 and 120B of the IPC registered at the Police Station Bhaktinagar, Rajkot, Gujarat.

The FIR was lodged by former Army personnel Jaidev Rajnikant Joshi at Rajkot alleging that Bhushan hurt religious sentiments of Hindus by tweeting against re-telecast of the Ramayana and the Mahabharata serials on DD during the coronavirus lockdown in the country.

While granting interim relief and protection to Bhushan, the apex court said,

“anybody can watch anything on TV” and questioned as to how one can ask people not to watch a particular programme.”

Senior advocate Dushyant Dave, appearing for Bhushan, sought quashing of the FIR lodged against the activist lawyer and sought interim protection against any coercive measure for the time being. He said he was not on the issue of as to what people should watch on TV, but was arguing against registration of the FIR.

In his complaint, Joshi had accused Bhushan of using word ‘opium’ for Ramayana and Mahabharata in a tweet on March 28 which hurt the sentiments of many Hindu people.

Bhushan had tweeted

“As crores starve & walk hundreds of miles home due to forced lockdown, our heartless ministers celebrate consuming & feeding the opium of Ramayana & Mahabharata to the people.”

Bhushan had filed the plea on Thursday and it was listed a day after the bench.

[Prashant Bhushan v. Jaidev Rajnikant Joshi, Writ Petition(s)(Criminal) No(s). 131/2020, order dated 01.05.2020]

(With inputs from PTI)