TaxTMI 
TaxTMI 
2020 (6) TMI 766
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....No.7411/2020 (exemption) 4. Exemption is granted, subject to just exceptions and subject to the petitioner completing all requirements of filing typed/clear/ original/certified copies of annexures and documents, attested affidavits and court fees within 10 days of physical reopening of courts. 5. Application stands disposed of. W.P.(CRL) No. 895/2020 6. The petitioner, who is a known journalist and television anchor, has filed the present petition under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) praying for quashing of FIR No.74/2020 dated 04.06.2020 registered under sections 290/505/505(2) of the Indian Penal Code, 1860 (IPC) at PS : Crime Branch, New Delhi. The petitioner has further prayed for an investigation into the registration of the FIR by respondent No.1/State, as also for compensation for violation of the petitioner's fundamental rights. 7. As recorded above, while the petitioner had impleaded only the State/Government of NCT of Delhi as respondent in the matter, the complainant has also now been impleaded as party-respondent No.2 in the petition. 8. Issue notice. 9. Mr. Piyush Singhal, Advoca....
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.... and that his comments/remarks in the webcast contain communal overtones, which during the current COVID crisis, is causing public disaffection, which shall cause hatred and ill-will between different communities as under : (Extract from the record) 18. As is evident from the record, while the date of commission of the alleged offence is 11.03.2020, the date and time of receipt of information for registration of FIR is indicated as 04.06.2020 as 22:48 hours. 19. Of the offences mentioned in the FIR, the offence under section 290 IPC i.e. punishment for public nuisance in cases not otherwise provided for, is punishable with fine of upto Rs. 200/- and is noncognizable and bailable ; the offence under section 505 IPC i.e. statements conducing to public mischief, of which section 505(1)(c) appears to be what is alleged, is punishable with imprisonment for upto 03 years or fine or both, and is non-cognizable and (yet) nonbailable; and the offence under section 505(2) IPC i.e. statements creating or promoting enmity, hatred or ill-will between classes, is punishable with imprisonment for upto 03 years or fine or both, and is cognizable and non-bailable. 20. Before proceeding further,....
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.... exception to offences under section 505 IPC. 22. Mr. Vikas Singh, learned senior counsel for the petitioner submits:- (a) That first and foremost, the only material furnished on the basis of which the FIR has been registered is a recording of the webcast dated 11.03.2020, of which the allegedly offending part starts at 08:30 minutes of the recording; (b) That while it has been alleged that the petitioner has said that high governmental functionaries, as mentioned in the webcast, were responsible for and instigated the riots that occurred in North-East Delhi, a bare perusal of the transcript of the recording, which has been filed along with the petition, shows that no such comment or allegation was at all made. All that was said in the webcast is that the functionaries did not visit the riot-affected areas and were pre-occupied with the on-going State visit of a foreign dignitary. Attention in this regard is drawn to the transcript of the webcast at 09:17 minutes and 11:55 minutes of the timeline; (c) That what is stated in the webcast is that no action has been taken and no FIR has been registered against three other persons, who are supposed to have instigated rioting by m....
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....ing an anticipatory bail application, the petitioner has been granted interim protection by the learned Additional Sessions Judge, nevertheless even continuance of investigation would amount to serious harassment of the petitioner who would be repeatedly called to the police station. Senior counsel further contends that the entire case rests on the contents of the CD and no further investigation is in any case required. 25. Mr. Piyush Singhal, learned counsel appearing on behalf of respondent No.1/State submits that investigation in the matter is at a nascent stage; that notice has only been issued to YouTube; and that the petitioner has so far not even been called for investigation. 26. Appearing on behalf of respondent No. 2/complainant, Mr. Anil Soni, Mr. Ajay Digpaul and Mr. Satya Ranjan Swain, learned counsel have argued against grant of any interim relief to the petitioner on the following basis: (a) That the ingredients of section 505(2) IPC are made-out on the basis of the allegations in the complaint and in the FIR; (b) That a narration made in the offending webcast to the effect that Delhi Police should issue a fact-sheet indicating as to how many people from the mi....
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....hat in any event the High Court could not take upon itself the task of assessing or appreciating the weight of material on the record in order to find whether any charges could be legitimately framed against the respondents. So long as there is some material on the record to connect the accused with the crime, says the learned counsel, the case must go on and the High Court has no jurisdiction to put a precipitate or premature end to the proceedings on the belief that the prosecution is not likely to succeed. This, in our opinion, is too broad a proposition to accept. Section 227 of the Code of Criminal Procedure, 2 of 1974, provides that: * * * * * * "Section 482 of the New Code, which corresponds to Section 561-A of the Code of 1898, provides that: "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or other wise to secure the ends of justice." In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to contin....
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....any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) * * * * * * (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) * * * * * * (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." (Emphasis supplied) 31. Then again, in State of Karnataka vs. M. Devendrappa (2002) 3 SCC 89, the Supreme Court has guided the High Courts to exercise their inherent power thus : "6. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The secti....
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....e the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto." * * * * * * "8. In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendet....
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....t are intended to create enmity, hatred or ill-will between different religions or communities. While considering section 153A and also referring to section 505(2) IPC in Manzar Sayeed Khan vs. State of Maharashtra & Anr. (2007) 5 SCC 1 the Supreme 6 Court has opined that it is the gravamen of the offence of creating enmity between different communities, that there should be reference to a second community ; and the offence cannot proceed on the basis of an allegation where only one community has been mentioned : "16. Section 153-A IPC, as extracted hereinabove, covers a case where a person by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, disharmony or feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities or acts prejudicial to the maintenance of harmony or is likely to disturb the public tranquillity. The gist of the offence is the intention to promote feelings of enmity or hatred between different classes of people. The intention to cause disorder or incite the people to violence is the sine qua non of the offence under Section 1....