New Delhi: Hours after the Delhi high court on Thursday stayed further police action on an FIR registered by the Delhi police against the well-known journalist Vinod Dua, a fresh case was filed against him by the police in distant Himachal Pradesh and a contingent of policemen dispatched to summon him for questioning.
Dua said that early on Friday morning, the Himachal Pradesh police arrived at his house to serve him a hard copy of a notice asking him to appear before the Kumarsain police station by Saturday to answer charges filed against him, including that of sedition (section 124A of the IPC) for a news programme of his.
It was not immediately clear what complaint the new case is based on but the first case – now stayed – was registered after a member of the ruling Bharatiya Janata Party moved the Delhi police last week.
The Himachal case came right after the Delhi Police suffered a double setback in its on-going tale of harassment of the journalist. Dua, who has already been granted interim protection in the anticipatory bail proceedings by a lower court, stands almost vindicated, thanks to the Delhi high court order that was uploaded on Thursday.
Justice Anup Jairam Bhambhani of the Delhi high court wanted to spend more time to deliberate on Dua’s plea to quash the First Information Report (FIR) registered against him by the Delhi Police. But he clearly found Dua eligible for further protection from harassment by the Delhi Police in the meantime in the form of a stay of investigation in the FIR. The order, while making it clear that the court is yet to form an opinion on whether the FIR deserves to be quashed, clearly exposes lack of application of mind by the Delhi Police.
Secondly, the Delhi Police’s further action in sending a notice to Dua, an hour before the delivery of Justice Bhambhani’s order, exposes it in the court of public opinion, for its gross indifference to the values of freedom of the press. The notice to Dua asks him to produce all the relevant information/material on which he relied upon in his HW News Network programme ‘The Vinod Dua Show’ episode 245, telecast on March 11, and “any other relevant information”. Although the materials that Dua might have used for his programme are in the public domain, it is an accepted principle that for a journalist, his or her sources of information are sacrosanct, and therefore, any coercive step to make them reveal their sources is a direct attack on the freedom of the press, guaranteed by the constitution in terms of freedom of expression.
The Delhi Police crime branch also asked Dua to indicate a suitable time and place where his statement could be recorded. The notice warned him that failure to attend or comply with its terms could render him liable for legal action under section 175 of the Indian Penal Code (IPC). Anyone found guilty under this provision could be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to Rs 5,000 or with both. The high court order does not refer to this “notice”, but by implication, the stay on investigation presumably will include any action by the police for non-compliance with it.
The offences and their ingredients
Of the offences mentioned in the Delhi FIR, the offence under section 290 of the IPC – punishment for public nuisance – is punishable with fine of up to Rs 200 and is non-cognizable and bailable; the offence under section 505 of the IPC (statements conducing to public mischief, of which section 505(1) [c] is alleged) is punishable with imprisonment for up to three years or fine or both, and is non-cognizable and non-bailable; and the offence under section 505(2) of the IPC, that is, statements creating or promoting enmity, hatred or ill-will between classes, is punishable with imprisonment for up to three years or fine or both, and is cognizable and non-bailable.
The ingredients of section 505[c] are intention to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community.
The exception to section 505 is of significance. It says that it does not amount to an offence, within the meaning of this section, when the person making, publishing or circulating any such statement, rumour or report believes it to be true and makes, publishes or circulates it in good faith and without such intent as aforesaid.
The belief on the part of a person making a statement that such a statement is true, makes it in good faith and lacks intent carve-out an exception to offences under section 505 IPC.
The complainant in the FIR alleged that Dua said in that programme that high governmental functionaries, as mentioned in the webcast, were responsible for and instigated the riots that occurred in Northeast Delhi. But the high court found, on the basis of a bare perusal of the transcript of the recording, which was filed along with Dua’s petition, that he made no such comment or allegation. What Dua said was that the functionaries (like Prime Minister Narendra Modi and home minister Amit Shah) did not visit the riot-affected areas and were preoccupied with the on-going state visit of US President Donald Trump.
During the impugned programme telecast on March 11, Dua also referred to the alleged hate speeches given by BJP leaders Kapil Mishra, Pravesh Verma and Union minister Anurag Thakur. Dua questioned why the Delhi police didn’t take any action against the three or register FIRs against them, although they are alleged to have instigated rioting by making inflammatory speeches.
Dua claimed that he made these references on the basis of the proceedings of the Delhi high court on February 26, wherein the division bench presided by Justice S. Muralidhar (who was on the same day transferred to the Punjab and Haryana high court) found prima facie evidence that the inflammatory speeches made by these three constituted ‘hate speech’ under section 153A (1)(a) and (b) of the IPC. Dua claimed that his narration during the March 11 webcast was, therefore, made in good faith without any intent within the mischief of section 505, and believing the statement made to be true on the basis of what was recorded in the high court order.
In State of Haryana and others v Bhajan Lal (1992), the Supreme Court held that where prima facie no offence is made out or the allegations do not disclose commission of a cognizable offence or the FIR appears to have been registered mala fide, the same deserves to be quashed.
In Lalita Kumari v Government of Uttar Pradesh (2014), the Supreme Court held that no FIR should be registered without at least first conducting a preliminary inquiry, if there is an inordinate delay between the alleged incident and the complaint.
In Imtiyaz Ahmad v State of Uttar Pradesh (2012), the top court said that a high court has unquestionable authority to order the stay of investigation pursuant to the lodging of FIR.
The counsel for the complainant referred to Dua’s narration in the programme that the Delhi Police should issue a fact-sheet indicating as to how many people from the minority community were picked-up and arrested; from where; in what condition and under what threat, and alleged that it amounted to propagating alarming news with intent to create or promote enmity, hatred or ill-will between classes, which is an offence punishable under section 505(2).
The complainant also alleged that Dua, merely on the basis of his opinion rather than fact, fostered a rumour to create enmity.
In Lalitha Kumari, the Supreme Court held that if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether the cognizable offence is disclosed or not.
Lalitha Kumari also required a preliminary inquiry in cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over three months’ delay in reporting the matter without satisfactorily explaining the reasons for the delay. The complainant claimed that he happened to see Dua’s March 11 programme on YouTube only on June 4.
The high court noted that the offence in section 505(2) IPC is in pari materia with that comprised in section 153A IPC, inasmuch as it refers to acts and omissions that are intended to create enmity, hatred or ill-will between different religions or communities.
While considering section 153 A and also referring to IPC section 505(2) in Manzar Sayeed Khan v State of Maharashtra (the case dealt with the challenge to the ban on James Laine’s book on Shivaji), the Supreme Court 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.
In Bilal Ahmed Kaloo v State of AP, the Supreme court held that the common feature in both the sections viz. sections 153-A and 505 being the promotion of feeling of enmity, hatred or ill will “between different” religious or racial or linguistic or regional groups or castes and communities, it is necessary that at least two such groups or communities should be involved. Further, it was observed that merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either of the two sections.
The high court noted that in Dua’s case, there was unexplained substantial delay of almost three months which would have warranted a preliminary inquiry as per the Supreme Court’s judgment in Lalitha Kumari. Even after registration of the FIR on June 4, no substantial investigation has been carried out, except for the issuance of notice to YouTube. The police admitted that investigation is at a nascent stage, and Dua has not been called to join interrogation (which was false, because notice was served on him an hour before the delivery of the order).
What the complainant alleges was said in the webcast, is not what appears in the transcript of the webcast; and to that extent, no cognizable offence is disclosed on the basis of the material cited by the complainant warranting registration of an FIR as per Lalita Kumari, the high court found.
Naming the three alleged hate speech makers in the webcast and questioning the police inaction against them is based on what was recorded in the division bench order dated February 26 in the hate speech case. Therefore, it falls within the exception to section 505 “at least on first blush”, the high court noted.
Ingredients and gravamen of the offence under section 505(2) do not seem to be made-out as required per Manzar Sayeed Khan (para 18 of the judgment), the high court added.
“In view of the factual picture, it prima facie appears that the registration of the FIR requires to be examined on the touchstone of the law as laid down in the above-referred judicial precedents, since the steps taken so far by the state do not appear to be in consonance with such law and do not inspire much confidence”, the high court concluded.
The high court expressed its prima facie view that further investigation or proceedings pursuant to the FIR are likely to cause unwarranted and unjustified harassment to Dua. The high court, therefore, stayed further investigation in the matter arising from the FIR, because in its view, the filing of the complaint and the registration of the FIR “deserve to be considered and deliberated further”.
The stay of further investigation will be operative till the next date of hearing on July 23. That is, if the Delhi Police does not appeal against this order, and secures a “stay” on the stay in the appellate court.