Delhi HC sets aside order for registration of FIR against VHP leader for hate speech

New Delhi [India], July 21 : The Delhi High Court on Friday set aside the trial court order for the registration of an FIR against Vishwa Hindu Parishad (VHP) leader Alok Kumar for alleged hate speech.
The High Court while setting aside the order said that there was no material at all against the VHP leader.
Alok Kumar had challenged the Metropolitan Magistrate order passed in February 2020 on a complaint of Harsh Mandar. The High Court said that the Magistrate should exercise its power with caution.
In the judgement, HC Justice Swarana Kanta Sharma said, "It is to be noted at the cost of repetition that the complaint qua the present petitioner was not a case of insufficient material but of no material at all. The Court also takes note of the fact that though the Magistrate mentions that from the perusal of the complaint, a commission of a cognizable offence is revealed there is no allegation in the entire complaint itself or in the Action Taken Report about any act of commission or omission on part of the present petitioner."
The petitioner Alok Kumar had challenged the order of February 18, 2020, directing the Station House Officer (SHO), Police Station Hauz Qazi, Delhi to register an FIR under appropriate sections of the law on the basis of a complaint filed by Harsh Mandar.
The petitioner was aggrieved that the complaint was purely malicious and motivated by questioning his patriotism and injuring his reputation without any reason and prays that the High Court not only examine the same but also initiate proceedings under Section 182 Cr.P.C. against respondent Harsh Mandar.
While setting aside Magistrate's order, the HC bench said that the power for direction for the registration of FIR should be exercised carefully.
"This Court is, therefore, constrained to observe 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," the bench observed in the judgement.
Justice Sharma said, "Keeping in mind the sensitive nature of the allegations and the fact that no evidence of communal disharmony had come on record during the preliminary inquiry conducted by police, this Court advises that the orders for registration of the FIR filed by any community should be passed with more circumspection."
The HC also noted that non-discrimination is the hallmark of the judiciary, and the Courts have never taken issues concerning communal peace lightly since tolerance of cultural and religious values of different communities is key to the success of nation-building.
The High Court said that, however, it is also to be kept in mind that a person against whom FIR is being ordered to be registered for no reason will have his reputation at stake. The HC further said that there was no incriminating material in the complaint against the petitioner.
"In cases such as the present one, against this backdrop, this Court finds merit in the present petition since the complaint filed before the learned Magistrate did not fulfil 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 also remains unknown," Justice Sharma observed.
The High Court said that the trial court failed to follow the guidelines while giving directions for the registration of FIR.
"In the present case, the learned Magistrate failed to consider and follow the judicial precedents and guidelines for the exercise of power under Section 156(3) Cr.P.C., and this court has to use its inherent power to prevent this abuse of process of law to ensure that relief is not denied to a litigant against whom criminal law has been ordered to be set in motion on the basis of lack of any incriminating material or allegations," the HC said.
It is also taken note of by this Court that the use of its inherent power judiciously is a step towards protecting its own process from abuse, it added.
The High Court said, "The Magisterial Courts have to remain vigilant and conscious that in cases such as the present one, directing registration of FIR without going through the facts of the case and the report filed by the police may rather ignite communal disharmony among the residents of concerned area as no disharmony or communal riots had taken place despite the incident of vandalism of idols of Hindu Gods and Goddesses and the matter had been resolved amicably between the members of two communities and a separate case of vandalism already stood registered and accused persons were under trial. The issue stood forgotten and buried for good in the concerned area."
The bench also noted that it is also a case where the members of one community, who allegedly were target of alleged hate speech, had themselves collectively requested the IO/SHO not to pay heed to any frivolous or malicious complaint filed regarding any alleged hate speech or any danger of riots, as both the communities were living in perfect harmony within the same locality.
The grievance of the respondent Harsh Mandar related to an incident of July 09, 2019, which allegedly took place on the occasion of 'Pran Pratishtha' of idols of Hindu Gods and Goddesses.
As per the respondent, a public meeting had been organised by Vishwa Hindu Parishad at Lal Kuan, Hauz Qazi, Delhi, where one Swami ji (identity unknown) had come to Delhi from Kashi and had delivered a speech, alleged to be provocative and the centre of entire controversy in the present case.
A complaint seeking lodging of an FIR was filed by the respondent but police failed to take any action. Thereafter the respondent moved the court for a direction for FIR.
He had alleged that the speech by Swami ji was designed to provoke riots; promote enmity and ill-will between communities as well as being comments prejudicial to national integration.