‘Variable content’, ‘intent’, ‘harm/impact’ should be considered factually: SC refuses Quashing FIR

‘Variable content’, ‘intent’ and the ‘harm/impact’ factors to be considered factually: SC refuses Quashing of FIR

AMISH DEVGAN Vs UNION OF INDIA AND OTHERS

WRIT PETITION (CRIMINAL) NO. 160 OF 2020

DECEMBER 07, 2020

The Hon’ble Supreme Court Justices A.M. KHANWILKAR and SANJIV KHANNA rejected the prayer of Amish Devgan (petitioner) for quashing of the FIRs which were registered against him as he remarked against Pir Hazrat Moinuddin Chishti.

Amish Devgan, a journalist who is presently the managing director of several news channels owned and operated by TV18 Broadcast Limited hosts and anchors debate shows ‘Aar Paar’ on News18 India and ‘Takkar’ on CNBC Awaaz. The petitioner had hosted and anchored a debate on the enactment 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 organizations had challenged this Act before the Supreme Court, and a Muslim organization had filed a petition opposing the challenge. It is stated that 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, which means,

“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.

It is also alleged that the petitioner had deliberately and intentionally insulted a Pir or a pious saint belonging to the Muslim community, and thereby hurt and incited religious hatred towards Muslims.

The petitioner claims that he was abused and given death threats in social media on his phone, fearing for which he had also filed an FIR in this regard. He contends that multiple FIRs arising out of the same incident are abuse of law, and violates the fundamental rights and freedom of press. The FIRs were alleged to be harassive and intimidate the petitioner, it was also stated that no part of ‘cause of action’ has arisen in the areas where the FIRs were lodged. The petitioner had also apologised to everyone who had been hurt. The petitioner invoked sections 295A, 153A, 505, 34 of Indian Penal Code.

On the other hand, the prayers made by the petitioners were opposed by the states of Maharashtra, Rajasthan, Telangana and Uttar Pradesh, and the private respondents. They submit that the petitioner is a habitual offender and has on many previous occasions offered similar apologies. It was alleged that repetition of the words ‘aakrantak Chishti aya,’ and ‘lootera Chishti aya’ twice reflects the intention of the petitioner, who had described Khwaja Moinuddin Chishti as an invader, terrorist and robber who had come to India to convert its population to Islam. Further they contended that, the intention of the petitioner was to create disharmony between the two faiths/groups and to incite disorder. No experts or historians were on the panel and it is seen that the program was staged to malign the Muslims and to promote hatred. They stated that the conduct of the petitioner was against norms of journalistic standards also the petitioner uploaded an edited version of the video on Youtube.

The Hon’ble Supreme Court observed the following,

We have already reproduced relevant portions of the transcript of the debate anchored by the petitioner. It is apparent that the petitioner 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.(Para.78)

Hearing both parties followed by a careful and in-depth consideration, the Court held that it would not be appropriate to quash the FIRs and thus stall the investigation into all the relevant aspects. It also said that, by an interim order, the petitioner has enjoyed protection against coercive steps arising out of and relating to the program telecast. The Court directed that, no coercive steps for arrest of the petitioner need be taken by the police during investigation. 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.

The Court rejected the prayer of the petitioner for quashing of the FIRs but has granted interim protection against arrest subject to his joining and cooperating in investigation till completion of the investigation. They have accepted the prayer of the petitioner for transfer of all pending FIRs in relation to and arising out of the telecast/episode to Ajmer. The Court also the concerned states to examine the threat perception of the petitioner and family members and take appropriate steps as may be necessary.

Thus, the writ petition and all pending applications were, accordingly, disposed of.

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