Amish Devgan v. Union of India and Others

November 23, 2021

Writ Petition (Criminal) No. 160 of 2020

Constitution of India – Arts 32, 19(1)(a), 19(2), 14, 15 to 18, 21, 38 to 39-A, 41, 46, 51-A(e) and 51-A(f) – Freedom of speech and expression – Media freedom – TV debate – Journalistic protection – Scope – Derogatory remarks against sufi saint, Khwaja Moinuddin Chisti of Ajmer – Petitioner later on apologising – Multiples FIRs against TV anchor and others – Debate whether a protected speech requiring no criminal investigation and trial – After examining the constitutional provisions, relevant provisions of the IPC and CrPC, held, it was not a case where FIRs could be straightway be quashed as warranting no action – Multiple FIRs were the outcome of TV viewers located at different places who were alleged hurt by the derogatory remarks – However, in order to avoid multiplicity of proceedings, first FIR filed at the Police Station, Ajmer Dargah, treated as lead FIR – FIRs filed in other cities directed to be transferred to Dargah Police Station – Limited protection granted to petitioner against arrest till the charge-sheet was filed – Thereafter he could seek bail, if required, from jurisdictional court – Direction also issued for providing security to the petitioner and his family – Penal Code, 1860, S. 153-A and 511 – Criminal Procedure Code, 1973, Ss. 154, 157, 173, 179 and 482 –

However, in view of multiplicity of legal issues arising in this case, and in order to avoid delay in conclusion of the criminal proceedings, the broad contours of law on those issues laid down as per the following scheme of the Judgment:

I. Operative portions of the Judgment

II. Triviality of alleged offence – S. 95, IPC – considered

III. Freedom of speech – Arts 19(1)(a) and 19(2) – Hate speech

IV. Hate speech – Perspectives of different common law jurisdictions – American, Canadian, Australian, South African, UK, German, and French approaches

V. Hate speech – common traits

VI. Human rights perspective in India

VII. Dignity of individuals in the context of hate speech

VIII. Hate speech – its elements – how to identify it and to ascertain its impact

IX. Hate speech – exceptions and defences – good faith and no-legitimate purpose

X. Fair criticism and hate speech – distinction

XI. The freedom of speech in the context of truth and popular beliefs

XII. Free speech and its likely impact – tests to determine – proximity of adverse fallout

XIII. Free speech and tolerance – Declaration of Principles of Tolerance, Art 1

XIV. Freed of speech, S. 153-(A)(b), IPC and Art 19(2) – disturbance of public tranquillity and harmony

XV. Free speech, incitement, and instigation

XVI. S. 511, IPC – attempt to commit offences – Definition of “attempt” – attempt in the context of hate speech

XVII. Freedom of speech and its adverse consequences – balancing of competing interests

XVIII. S. 154, 157 and 173, CrPC, 1973 – FIR – significance and follow up action

XIX. S. 482, CrPC – quashing of criminal proceedings – scope

Disposing of the writ petition, the Supreme Court

Held:

The Court’s final verdict: The debate-show hosted by the petitioner was broadcast on a widely viewed television network. The audience, including the complainants, were located in different parts of India, and were affected by the utterances of the petitioner; thus, the consequence of the words of the petitioner ensued in different places, including the places of registration of the impugned FIRs. Section 156(1) of the CrPC, 1973, provides that any officer-in-charge of a police station may investigate any cognizable case which a court having jurisdiction over the local limits of such station would have the power to inquire into or try. A conjoint reading of Sections 179 and 156(1) makes it clear that the impugned FIRs do not suffer from jurisdictional defect. (Para 13)

Ordinarily, the court would have relegated the petitioner and asked him to approach the concerned High Court for appropriate relief, albeit in the present case detailed arguments have been addressed by both sides on maintainability and merits of the FIRs in question and, therefore, been dealt with, and rejected at this stage. The Court does not, given this peculiar circumstance, deem it appropriate to permit the petitioner to open another round of litigation. The Court has accordingly proceeded to answer the issues under consideration. (Para 77)

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 the police investigation. The variable content, intent, and the harm/impact factors, as asserted on behalf of the informants and the State, are factually disputed by the petitioner. 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)

It would not be appropriate at this stage to quash the FIRs and to stall the investigation into all the relevant aspects. However, the Court’s observations on the factual matrix of the present case, should not in any manner influence the investigation by the police which should independently apply their mind and ascertain the true and correct facts, on all material and relevant aspects. Similarly, the competent authority would independently apply its mind in case the police authorities seek sanction, and to decide, whether or not to grant the same. The same would be the position in case the charge-sheet is filed. The court would apply its mind whether or not to take cognisance and issue summons. By an interim order, the petitioner has enjoyed protection against coercive steps arising out of and relating to the program telecast on 15-6-2020. Subject to the petitioner cooperating in the investigation, it is directed that no coercive steps for the petitioner’s arrest need to be taken by the police during the investigation. In case and if a 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. (Para 79)

The subsequent FIRs would be treated as statements under Section 162 of the Criminal Code. This would be fair and just to the other complainants at whose behest the other FIRs were caused to be registered, for they would be in a position to file a protest petition in case a closure/final report is filed by the police. Upon the filing of such protest petition, the magistrate would be obliged to consider their contention(s) and may even reject the closure/final report and take cognizance of the offense, and issue summons to the accused. Otherwise, such complainants would face difficulty in contesting the closure report before the Magistrate, despite and even if there is enough material to make out a case of commission of an offense. (Paras 82 and 83)

Section 179 of the Criminal Code permits prosecution of cases in the court within whose local jurisdiction the offense has been committed or consequences have ensued. Section 186 of the Criminal Code relates to cases where two separate charge-sheets have been filed based on separate FIRs and postulates that the prosecution would proceed where the first charge-sheet has been filed based on the FIR that is first in point of time. Principle underlying section 186 can be applied at the pre-charge-sheet stage, that is, post-registration of FIR but before charge-sheet is submitted to the Magistrate. In such cases ordinarily the first FIR, that is, the FIR registered first in point of time, should be treated as the main FIR and others as statements under Section 162 of the Criminal Code. However, in exceptional cases and for good reasons, it will be open to the High Court or this Court, as the case may be, to treat the subsequently registered FIR as the principal FIR. However, this should not cause any prejudice, inconvenience, or harassment to either the victims, witnesses, or the person who is accused. This has been clarified to avoid any doubt or debate on the said aspect. (Para 84)

All FIRs filed at the places other than Ajmer are transferred to the Police Station Dargah, Ajmer, Rajasthan, where the first FIR was registered. There is no good ground or special reason to transfer the FIRs to Noida, Uttar Pradesh. Statement of the complaint/informant forming the basis of the transferred FIRs would be considered as a statement under Section 162 of the Criminal Code and be proceeded with. Compliance with the above directions to transfer papers would be made by the concerned police station when they receive a copy of this order. The above directions

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(A.M. Khanwilkar and Sanjiv Khanna, JJ.)

Amish Devgan ____________________________________ Petitioner;

Union of India and Others _______________________ Respondent(s).

Writ Petition (Criminal) No. 160 of 2020, decided on December 7, 2020

The Judgment of the Court was delivered by

Sanjiv Khanna, J.:—

1. Applications for intervention are allowed.

2. The writ petitioner, Amish Devgan, is a journalist who, it is stated, is presently the managing director of several news channels owned and operated by TV18 Broadcast Limited, including News18 Uttar Pradesh/Uttarakhand, News18 Madhya Pradesh/Chhattisgarh and News18 Rajasthan.

3. The petitioner hosts and anchors debate shows ‘Aar Paar’ on News18 India and ‘Takkar’ on CNBC Awaaz. On 15^th June, 2020, at around 7:30 p.m., the petitioner had hosted and anchored a debate on the enactment¹ which, while excluding Ayodhya, prohibits conversion and provides for maintenance of the religious character of places of worship as it existed on 15^th August, 1947. Some Hindu priest organisations had challenged vires of this Act before the Supreme Court, and reportedly a Muslim organization had filed a petition opposing the challenge.

4. Post the telecast as many as seven First Information Reports (FIRs) concerning the episode were filed and registered against the petitioner in the States of Rajasthan, Telangana, Maharashtra and Madhya Pradesh. The details of the FIRs are as under:

S. No.	FIR No.	Sections	Police Station/State
1.	78/2020	153B, 295A, 298 IPC 66F of Information Technology Act, 2000	Dargah, Ajmer (Rajasthan)
2.	50/2020	153B, 295A, 298 IPC 66F of Information Technology Act, 2000	Makbara, Kota (Rajasthan)
3.	173/2020	295A IPC	Bahadurpura, Hyderabad City (Telangana)
4.	218/2020	295A IPC	Itwara, Nanded (Maharashtra)
5.	217/2020	153A, 295A, 505(2) IPC	Paidhuni, Mumbai (Maharashtra)
6.	674/2020	295A IPC	Originally registered at P.S. Omati, Jabalpur (Madhya Pradesh) and subsequently on 30^th June 2020 was transferred to P.S., Sector-20, Gautam Buddh Nagar (Uttar Pradesh)
7.	337/2020	295A IPC	Naya Nagar, Thane (Maharashtra)

5. The gist of the FIRs is almost identical. 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 the words spoken would read – “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 alleged that the petitioner had deliberately and intentionally insulted a Pir or a pious saint belonging to the Muslim community, revered even by Hindus, and thereby hurt and incited religious hatred towards Muslims.

6. The petitioner, as per the writ petition, claims that post the telecast he was abused and given death threats on his phone, Twitter, Facebook and other social media platforms. Fearing for his life and limb, the petitioner had filed FIR No. 539 of 2020 dated 20^th June, 2020 at P.S. Sector-20, Noida, Uttar Pradesh, and submitted the links to the threats received through social media platforms.

7. On or about 22^nd June, 2020, the present writ petition was filed under Article 32 of the Constitution of India with an application for interim relief. This writ petition came up for hearing on 26^th June, 2020 whereby notice was issued with a direction to the petitioner to implead the informants in the respective FIRs/complaints. An interim order was passed directing that till the next date of hearing there would be a stay on further steps/action on the FIRs mentioned in the writ petition, relating to the telecast dated 15^th June, 2020, and the petitioner was protected against any coercive process arising out of or relating to the said FIRs.

8. Pursuant to the aforesaid liberty, the writ petition was amended to implead the complainants. Thereafter, the writ petition was amended on a second occasion. The prayers made in the last amended writ petition to this Court are:

(a) for issue of writ of certiorari, quashing the complaints/FIRs referred to above or any other FIR or criminal complaint which may be filed thereafter relating to the telecast in question dated 15^th June, 2020;

(b) strictly in the alternative, transfer and club the FIRs mentioned above or elsewhere in the country with the first FIR, i.e. FIR No. 78, P.S. Dargah, Ajmer, Rajasthan;

(c) issue a writ of mandamus to the effect that no coercive process shall be taken against the petitioner in the FIRs so lodged or subsequent complaint or FIRs on the subject broadcast; and

(d) direct the Union of India to provide adequate safety and security to the petitioner, his family members and his colleagues at various places in the country.”

9. The petitioner, in his submissions, claims that he has faith in Banda Nawaz Hazrat Khwaja Moinuddin Chishti and has also gone on Ziyarat pilgrimage to Ajmer Sharif to offer respects and to worship. Expressing regret, the petitioner claims that the attributed words were uttered inadvertently and by mistake; in fact, the petitioner wanted to refer to Alauddin Khilji and not Gareeb Nawaz Khwaja Moinuddin Chishti. Realising his mistake and to amend the inadvertent error, and to dispel doubts and vindicate himself, the petitioner had promptly issued a clarification and an apology vide a tweet dated 17^th June 2020. A video with similar clarification and apology was also telecast by the news channel on the very same day. Contention of the petitioner is that in a whirl, he had taken the name of Chishti though he had no such intention, and he laments his lapse as he did not wish to hurt anybody. Accordingly, he had apologised to anyone who had been hurt. In addition, a number of submissions have been made by the petitioner, which are summarised as under:

• Multiple FIRs arising out of the same incident are abuse of law, and violate fundamental rights of the petitioner and freedom of press, causing a chilling effect on the freedom of speech and expression.

• The FIRs are meant to harass and intimidate the petitioner; no part of ‘cause of action’ has arisen in the areas where the FIRs were lodged.

• On interpretation of Sections 153A, 295A, and 505(2) of the Indian Penal Code, 1860 (in short, the ‘Penal Code’) and Section 66-F of the Information Technology Act, 2000, (in short, the ‘IT Act’), no offence whatsoever can be made out; the allegations are based upon utterances in isolation by picking up select words and not on the programme as a whole; the petitioner did not have any malicious intent and mens rea to outrage religious beliefs and feelings; the programme has to be judged from the standard of a reasonable and strong-minded person and at best the words exhibit carelessness without any deliberate and malicious intent, which fall outside the ambit of Sections 153A, 295A and 505(2) of the Penal Code.

• In the alternative, it is submitted that a case of trifle or minor harm is made out, which would be covered by Section 95 of the Penal Code.

• Again, in the alternative, it is submitted that all the FIRs should be clubbed and transferred to Noida or Delhi.

10. Counsel for the petitioner has relied upon the following decisions in support of his contention – Arnab Ranjan Goswami v. Union of India,² Balwant Singh v. State of Punjab,³ Bhagwati Charan Shukla s/o. Ravishankar Shukla v. Provincial Government, C.P. & Berar,⁴ Bilal Ahmed Kaloo v. State of A.P.,⁵ Brij Bhushan v. State of Delhi,⁶ Devi Sharan Sharma v. Emperor,⁷ Emperor v. Sadashiv Narayan Bhalerao,⁸ Gopal Vinayak Godse v. Union of India,⁹ Her Majesty the Queen v. James Keegstra,¹⁰ Niharendu Dutt Majumdar v. The King-Emperor,¹¹ K.A. Abbas v. Union of India and Another,¹² Kedar Nath Singh v. State of Bihar,¹³ Lalai Singh Yadav v. State of Uttar Pradesh,¹⁴ Lalita Kumari v. Government of Uttar Pradesh,¹⁵ Mahendra Singh Dhoni v. Yerraguntla Shyamsundar,¹⁶ Manzar Sayeed Khan v. State of Maharashtra,¹⁷ P.K. Chakravarty v. The King,¹⁸ Pravasi Bhalai Sangathan v. Union of India,¹⁹ Queen-Empress v. Bal Gangadhar Tilak,²⁰ R. v. Zundel,²¹ R. P. Kapur v. State of Punjab,²² Ramesh S/o Chhotalal Dalal v. Union of India,²³ Ramji Lal Modi v. State of U.P.,²⁴ Romesh Thappar v. State of Madras,²⁵ Saskatchewan (Human Rights Commission). v. Whatcott,²⁶ Shreya Singhal v. Union of India,²⁷ State of Bihar v. P.P. Sharma, IAS,²⁸ State of H.P. v. Pirthi Chand,²⁹ State of Haryana v. Bhajan Lal,³⁰ State of U.P. v. O.P. Sharma,³¹ Veeda Menez v. Yusuf Khan,³² Neelam Mahajan v. Commissioner of Police,³³ Superintendent of Police, CBI v. Tapan Kumar Singh,³⁴ Superintendent, Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia,³⁵ T.T. Antony v. State of Kerala,³⁶ and Virendra/K. Narendra v. State of Punjab.³⁷

11. The prayers made by the petitioner are opposed by the states of Maharashtra, Rajasthan, Telangana and Uttar Pradesh, and the private respondents. The informants submit that the petitioner is a habitual offender and has on numerous earlier occasions offered similar apologies. The petitioner had twice repeated the words ‘aakrantak Chishti aya,’ followed by the words ‘lootera Chishti aya’. This assertion on three occasions conveys and 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. The pretext of inadvertent mistake is an afterthought and a sham and unreal defence. Respondent No. 9, namely, Saber Chausa Mohd. Naseer, in his affidavit has stated that the name of Khwaja Moinuddin Chishti as a Sufi Saint was taken by one of the panelists when the topic of conversion was being debated. The panelist had gone on record to state that the conversions at the time of Khwaja Moinuddin Chishti happened for moral, religious and spiritual reasons and the devotees and followers of Khwaja Moinuddin Chishti were inspired by his teachings. The affidavit also states that the discussion at that time was not in relation to Mughals or with reference to Aurangzeb or Allaudin Khilji. Further, the petitioner had tampered with the broadcast of the debate uploaded on YouTube on 16^th June, 2020, by deliberately deleting the part wherein the petitioner had used the word ‘aakrantak Chishti’ (twice) and ‘lootera Chishti’. These acts of sieving out of offensive portions, and the subsequent apology were after the petitioner had learnt about the protests and registration of the FIRs at Ajmer and other places. The respondents claim that the apology is not genuine but an act of self-defence. FIR at Ajmer was registered on 16^th June, 2020 at 11:58 p.m. whereas the first apology (via Twitter) of the petitioner appeared on 17^th June, 2020, at 12:12 a.m., i.e., nearly 30 hours after the live telecast of the show where offensive words were uttered by the petitioner.

12. The points raised by the respondents can be summarised as under:

• The petition ought to be dismissed as Article 32 has been invoked in a cavalier manner. Remedy under section 482 of the Code of Criminal Procedure, 1973 (hereafter referred to as, ‘Criminal Code’) was available to the petitioner.³⁸

• The offending words were uttered thrice by the petitioner, which shows his ill intention.³⁹ The intention of the petitioner was to create disharmony between the two faiths/groups and to incite disorder.⁴⁰

• The debate was a staged program, where no experts or historians were on the panel; the program was staged to malign the Muslims and to promote hatred.⁴¹

• The themes of the programs hosted by the Petitioner are communal.⁴²

• The conduct of the petitioner was against norms of journalistic standards.⁴³

• Petitioner uploaded an edited version of the video on Youtube, where he had removed the part containing the offensive speech. This was done after FIR was lodged as an attempt to tamper/destroy the evidence.⁴⁴

• The Petitioner claimed that inadvertently he uttered “Chishti” in place of “Khilji”, but there is no relation between these two historical figures. Khwaja Chishti came to India in 1136 when Md. Ghori was defeated by Prithvi Raj Chauhan for the first time in the battle of Tarain. Whereas, Khiljis ruled in India from 1290 to 1320. So Khilji and Khwaja Chishti were neither contemporaries nor related to each other.⁴⁵

• Apology by the Petitioner was an afterthought. It came only after the registration of FIR.⁴⁶ The petitioner did not apologize initially and let the followers of Khwaja Chishti be outraged, in order to gain popularity.⁴⁷

• The two persons, whose credentials the petitioner has mentioned in the petition, to press that the members of the community have forgiven him, is false. These two people as TV personalities and nowhere represent the devotees of Khwaja Chishti.⁴⁸

• FIR need not have an encyclopaedia of the event. Even if only material facts have been disclosed, it is enough to continue with criminal proceedings.⁴⁹

• Some communal elements in Maharashtra, after the broadcast of the utterances by the Petitioner, used this opportunity and started circulating this video to spread hatred.⁵⁰

• Article 19(1)(a) of the Constitution is subject to express limitations under Article 19(2) of the Constitution.

• The police should be permitted to file report under Section 173 of the Criminal Code and court should frame the charges. Then only the petitioner would get the opportunity to defend himself in the court.⁵¹

• Section 19 of the Cable TV (Regulation) Act prohibits cable TV network to broadcast any content that promotes hate or ill will.⁵²

• The broadcast was throughout the nation and thus cause of action arose in Ajmer too, where the intervener resides and serves as khadim to Dargah of Khwaja Chishti.

• Respondent no. 5, State of Uttar Pradesh,⁵³ reiterated the facts of the FIR lodged at the instance of informant Amish Devgan. Also, it has been mentioned that one FIR which was filed in Jabalpur against the Petitioner Amish Devgan was transferred by Jabalpur police to Gautam Budhh Nagar.

• State of Rajasthan⁵⁴ submitted:

(a) apology tendered by the petitioner would not dilute the offence. Also, it was after 30 hours of the broadcast of the show.

(b) Allegations and counter allegations of facts are matter of trial.

(c) Transfer all FIRs to Ajmer as one of the FIRs is there, and matter also relates to Ajmer.

• State of Telangana⁵⁵ submitted:

(a) Complainants/informants came to the P.S. Bahadurpura, Hyderabad and made a complaint that the petitioner has dishonoured Khwaja Chishti.

(b) As per State of Orissa v. Saroj Kumar Sahoo,⁵⁶ probabilities of prosecution version can’t be denied at the early stages.

(c) Normal course of investigation cannot be cut-short in casual manner. Also, the accused has a remedy under 482 of the Criminal Code.

The Show and Debate

13. Before we examine the first prayer, we must take notice of the fact that the transcript filed by the petitioner with the original writ petition and the amended writ petitions is not the true and correct transcript. As per these transcripts the petitioner is stated to have only uttered the words “Akranta Chishti came… Lootera Chishti came after then religion changed”. However, in the transcript filed by the petitioner on 8^th July, 2020, it is accepted that the petitioner had used the words ‘Akranta Chishti’ not once but twice. This is the correct version. The petitioner accepts that the topic of debate was relating to the challenge posed by a Hindu priest organisation to the Places of Worship (Special Provisions) Act, 1991, according to which the de facto position of religious places as on 15^th August, 1947 could not be changed or altered, though Ayodhya was kept out of the ambit of the Act, and this petition was opposed by a Muslim organisation stating that if notice is issued there would be widespread fear among the Muslim community. After the prelude initiating the debate, the petitioner, as per the transcript, had stated “Today, this will be the key issue of the debate… Ayodhya Verdict delivered, Why Kashi-Mathura issue left unresolved?… asking Hindu Priests!”. The petitioner as per the transcript had then declaimed:

“Now analyse the legal position of Kashi Mathura issue…Hindu Priest organisation has reached Supreme Court against Places of Worship

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