Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Varun Gandhi's Plea For Quashing F.I.R Dismissed.
JUDGEMENT TITLE : Varun Gandhi Vs. State Of U.P. & Others. On 25/03/2009 By Allahabad High Court
CASE NO : CRIMINAL MISC. WRIT PETITION NO. 4950 OF 2009
CORAM : Hon'ble Imtiyaz Murtaza,J. And Hon'ble Subhash Chandra Nigam,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD



Court No. 42

Criminal Misc. Writ Petition No. 4950 Of 2009

Varun Gandhi..............................v.......................State Of U.P. And Others.


Hon. Imtiyaz Murtaza J.
Hon. S.C.Nigam, J.


Impugned Herein Is The F.I.R Dated 17.3.2009 Lodged At Case Crime No. 255 Of 2009 Under Section 153 A, 188 IPC And Section 125 Of The Representation Of Peoples Act 1951 P.S. Barkhera District Pilibhit For Quashment Of Which The Petitioner Has Prayed For A Writ Of Certiorari In The Petition In Hand. The Reliefs Sought In The Petition May However Be Excerpted Below..

"i) Issue A Writ, Order Or Direction In The Nature Of Certiorari Quashing The Impugned First Information Report Dated 17.3.2009 Lodged Against The Petitioner By The Respondent No. 4 As Case Crime No. 255 Of 2009, Under Section 153 A, 188 IPC And Section 125 Of The Representation Of People Act 1951 (wrongly Mentioned As 1952 In The F.I.R.) Police Station Barkhera District Pilibhit.

ii)issue A Writ, Order Or Direction In The Nature Of Mandamus Commanding The Respondent No.3 Not To Arrest The Petitioners In Pursuance Of The Impugned First Information Report Dated 17.3.2009 Lodged Against Him By The Respondent No.4 As Case Crime No. 255 Of 2009, Under Section 153 A, 188 IPC And Section 125 Of The Representation Of People Act 1951 (wrongly Mentioned As 1952 In The F.I.R. , Police Station Barkhera, District Pilibhit During The Pendency Of The Aforesaid Writ Petition Before This Hon. Court.
iii)Issue Any Other Writ, Order Or Direction Which This Hon. Court May Deem Fit And Proper In The Facts And Circumstances Of The Case."

A Brief Resume Of The Allegations Embodied In The F.I.R Are That On 8.3.2009 At 2 P.m, The Petitioner Who Is Contesting Election For Member Of Parliament On B.J.P Ticket Used Derogatory Language In His Speech Delivered By Him At Kasba Barkhera Bazar For Muslims Which Was Intended To Give Rise To Feeling Of Enmity And To Excite Hatred Amongst The Communities. The Precise Words Uttered By The Petitioner In His Speech Before The Congregation Were "Sara Hindu Ek Taraf, Sara Katua Ek Taraf, Hindu Jaga, Bhagya Jaga, Abhi Nahin To Kabhi Nahin Aur Ab Nahin Jage To Desh Pakistan Ban Jayega, Tatha Hindu Par Hath Utha Ya Karya Karta Ko Darane Dhamkane Va Hak Chhinane Ke Liye Mujhe Shikayat Milti Hai To Varun Gandhi Hath Kat Dega, Hinduon Ka Dukh Sunen Wala Koi Nahin Hai. Varun Gandhi Hi Izzat Bacha Sakta Hai. Kamal Katuo Ke Gale Ko Kat Dega, Muslim Ek Bimari Hai, Chunav Ke Bad Khatma Ho Jayegi. To Reword, According To The Allegations, The Speech Is Littered With Derogatory And Salacious Details About One Particular Community In Which The Petitioner Called Them Katua (reference To Practice Of Circumcision Of Foreskin)besides Calling Them A Disease Which According To Further Allegations, Would Be Eliminated After Election. According To Further Allegations, The Speech Was Delivered Notwithstanding The Fact That The Code Of Conduct Had Been In Force After Declaration Of Election And The Speech Was Rabble Rousing And Highly Inflammatory And Was Aimed And Directed Towards A Particular Community Having Tendency Of Creating Public Disorder And Disturbance Of Law And Order Or Affect Public Tranquillity And Creating A Sense Of Insecurity Amongst Them And Thus An Attempt Has Been Made To Create Disharmony, Feeling Of Hatred And Ill-will Between Hindu And Muslims. It Is Further Alleged That Section 144 Cr.P.C For In Force In And Around The Area And The Congregation Was Addressed And Speech Was Delivered Without Proper Permission From The Competent Authority. In The Light Of The Above Allegations, The Case Was Registered Under Sections As Aforesaid.

We Have Heard Learned Counsel For The Petitioner And Also Learned A.G.A And Perused The Materials On Record.

Sri Gopal Chaturvedi, Learned Senior Advocate Appeared And Addressed The Court Arguing That The Petitioner Never Used Any Derogatory Language And Further That The C.D Has Been Tampered With To Portray The Petitioner In Black Veil Attended With The Submission That The Incident Has Been Hyped Up By The Press Beyond All Proportion. It Is Further Argued That Even Assuming That The Words Attributed To The Petitioner Were Uttered By Him In One Of His Addresses To The Public The Same By Any Reckoning Are Not Intended To Create Any Disaffection Inasmuch As No Unsavoury Incident Has Happened Thereafter. Ultimately, It Has Been Argued That Arrest Of The Petitioner Be Stayed As Interrogation, If At All Necessary, Can Be Done Without Taking The Accused Into Custody As Held By The Apex Court In Jonathan Nitin Brady's Case (2008) 3 SCC (Cri) 627. The Learned Counsel Also Referred To Amendment In Section 41 Which According To The Learned Counsel Received The Assent Of The President On 7th January 2009 And Argued That At The Most The Police Could Issue Notice To The Petitioner To Appear Before Him Or At Such Other Place As May Be Specified In The Notice.

In View Of Emphasis Of The Learned Counsel On Jonathan Nitin Brady's Case Aforesaid, We Have Scanned The Decision And Are Of The View That The Said Decision Was Delivered In A Case Of Anticipatory Bail And Prayer Was Not For Quashing Of F.I.R And It Was A Matter Of A State Where Provisions Of Anticipatory Bail Were In Vogue. In So Far As Section 41A Of The Amendment Act Is Concerned, Nothing Has Been Brought To My Notice To Prop Up The Submission That The Aforesaid Amendment To Section 41 Has Been Notified. The Provision Aforesaid Does Not Help The Petitioner In This Petition Where A Prayer Is Made For Quashing Of The F.I.R.

In Connection With The Above Proposition, Section 153A Of The IPC Being Relevant Is Quoted Below.
"153A. Promoting Enmity Between Different Groups On Grounds Of Religion, Race, Place Of Birth, Residence,language Etc And Doing Acts Prejudicial To Maintenance Of Harmony.- (1) Whoever
(a) Bywords,either Spoken Or Written, Or By Signs Or By Visible Representations Or Otherwise, Promotes Or Attempts To Promote, On Grounds Of Religion, Race, Place Of Birth, Residence,language, Caste Or Community Or Any Other Ground Whatsoever, Disharmony Or Feelings Of Enmity, Hatred Or Will-will Between Different Religious, Racial, Language Or Regional Groups Or Castes Or Communities, Or
(b) Commits Any Act Which Is Prejudicial To The Maintenance Of Harmony Between Different Religious, Racial, Language Or Regional Groups Or Castes Or Communities And Which Disturbs Or Is Likely To Disturb The Public Tranquillity,
(c ) Organizes Any Exercise, Movement, Drill Or Other Similar Activity Intending That The Participates In Such Activity Shall Use Or Be Trained To Use Criminal Force Or Violence Or Knowing It To Be Likely That The Participants In Such Activity Will Use Or Be Trained To Use Criminal Force Or Violence,or Participates In Such Activity Intending To Use Or Be Trained To Use Criminal Force Or Violence Or Knowing It To Be Likely That The Participants In Such Activity Will Use Religious, Racial, Language Or Regional Group Or Caste Or Community And Such Activity For Any Reason Whatsoever Causes Or Is Likely To Cause Fear Or Alarm Or A Feeling Of Insecurity Amongst Members Of Such Religious, Racial, Language Or Regional Group Or Caste Or Community.
Shall Be Punished With Imprisonment Which May Extend To Three Years, Or With Fine, Or With Both."

Section 125 Of The Representation Of The People Act, 1951 Being Also Relevant Is Also Quoted Below.
"125. Promoting Enmity Between Classes In Connection With Election.- Any Person Who In Connection With An Election Under This Act Promotes Or Attempts To Promote On Grounds Of Religion, Race, Caste, Community Or Language Feelings Of Enmity Or Hatred, Between Different Classes Of The Citizens Of India Shall Be Punishable With Imprisonment For A Term Which May Extend To Three Years Or With Fine Or With Both."

In Connection With The Arguments Advanced Across The Bar, We May Refer To A Decision Of The Apex Court In Babu Rao Patel V. State (Delhi Administration) AIR 1980 SC 763. In Para 3 The Apex Court Observed That "It Is Seen That S. 153 A (1) (a) Is Not Confined To The Promotion Of Feelings Of Enmity Etc On Grounds Of Religion Only As Argued By Shri Sen But Takes In Promotion Of Such Feelings On Other Grounds As Well Such As Race, Place Of Birth, Residence, Language, Caste Or Community".

In The Instant Case, Investigation Is Still Under Way. In This Connection, Attention Is Drawn To The Full Bench Of This Court In Ajit Singh @ Muraha V. State Of U.P. And Others (2006 (56) ACC 433) In Which This Court Reiterated The View Taken By The Earlier Full Bench In Satya Pal V. State Of U.P. And Others (2000 Cr.L.J. 569) That There Can Be No Interference With The Investigation Or Order Staying Arrest Unless A Cognizable Offence Is Not Ex-facie Discernible From The Allegations Contained In The F.I.R. Or There Is Any Statutory Restriction Operating On The Power Of The Police To Investigate A Case.

The Learned Counsel For The Petitioner Has Not Brought Forth Anything Cogent Or Convincing To Manifest That No Cognizable Offence Is Disclosed Prima Facie On The Allegations Contained In The F.I.R. Or That There Was Any Statutory Restriction Operating On The Police To Investigate The Case.

Having Scanned The Allegations Contained In The F.I.R. The Court Is Of The View That The Allegations In The F.I.R. Do Disclose Commission Of A Cognizable Offence And Therefore No Ground Is Made Out Warranting Interference By This Court. The Petition Is Accordingly Dismissed.

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