Thread by @barandbench

[Amish Devgan Case]

Supreme Court to resume hearing journalist @AMISHDEVGAN 's plea to consolidate & quash all FIRs against him for the alleged criticism of Sufi saint, Khwaja Moinuddin Chishti, on his show, "Aar Paar". Devgan maintains apology was tendered

#SupremeCourt

Senior Advocate Siddharth Luthra had contended that sections in the FIR against him are not attracted as it was only a "slip of tongue." Centre too stated that case should not be stretched as the journalist has already apologized.

Senior Adv Luthra will wrap up his submissions today and the intervenors will put forward their arguments too. Hearing to resume at 10:30 am.

#freespeech
#khwajachishti
@AMISHDEVGAN

Hearing begins.
Senior Adv Luthra cites judgments.

Senior Luthra cites the Balwant Singh judgment on Section 153A of IPC. focusses on the point that the spoken word is with an intention to disturb the law and order or public order of the tranquility. @AMISHDEVGAN

Justice Khanwilkar: whether you had intention or not is matter of investigation and not for quashing the FIR

Luthra points to para 12 of the judgment

Justice Khanwilkar: even one word can cause public disorder but that is a subject matter of probe

Luthra: none of the FIR says that public order was being disturbed

SC: but they say it was for creating communal disharmony

Luthra: Balwant Singh verdict in Kalu's case. Kalus case was followed in the constitution bench judgment of Prakash Kumar

SC: Come to para 10 of Kalu's case

SC: Was this a publication in your case?

Luthra: publication will be when there is a conscious act of publication

SC: no it has to be circulated

Luthra: can we attribute the intention to circulate to fall within core of the offence?

Justice Khanna: all these cases are after chargesheet was filed

Luthra: Yes, my lord, all these are post chargesheets

The two judge bench now ponders over what is publication

Luthra: In IPC, there is no definition clause of Publication

SC: but 153B uses the expression, publishes. Find out

Luthra reads a constitution bench verdict stating commenting on religious class inadvertently and that the section only punishes when there is a deliberate and calculated intent to disrupt the public order and create religious disharmony. Thereby the court had quashed the case.

Test of quashing is if the speech is of aggravated form and with the intent of disrupting public order. In Manzar Syed Khan it was noted too

Justice Khanwilkar: don't dump all these judgments on us. divide them into parts.

Luthra now cites cases where the court delved on cases where an apology was tendered.

Luthra: Monika Kumar vs State of UP is the first case. now Devidas case which is a classic case about the book written in Marathi regarding a man meeting Mahatma Gandhi. SC takes a view in this case that the unconditional apology which was tendered before inception of case

Luthra reads a judgment on what can be constituted as slight in nature of making such a statement. points to a Delhi HC judgment of Neelam Mahajan Singh where a similar case was quashed by a three judge bench

Luthra: My lords will now have to see whether in the present circumstances, harm could have been said to be caused.

“A person of the ordinary sense of temper could not complain” is the line in the judgment being cited

Luthra now cites Section 295 A of the IPC and how the provision needs to be viewed in the backdrop of the Delhi HC verdict. Shares screen showing the Neelam Mahajan Singh case.

@AMISHDEVGAN

Luthra reads Section 95 of IPC

Luthra: It has to be seen that evidence is not needed even at the FIR stage and on this ground itself it can be quashed..cites a judgment to substantiate

@AMISHDEVGAN
#freespeech .

Luthra: We are testing the FIR as it stands and the Bhajan Lal case only reiterates my point

Senior Adv Luthra shares screen with the judges and cites the judgment. Shows a point connected to Section 95 of IPC

Sec 95: Act causing slight harm. —Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.

Luthra: Thus the offence allegedis of a trivial nature - the judgment discusses the burden of proof and the ingredient of “triviality” is discussed. (judgment is on screen)

Luthra refers to judgment and says that “harm caused to the person was so slight that a person of ordinary sense and temper would not complain of such harm”. High court has used Section 95 to quash FIRs.

Luthra: Can we have multiple FIRs on the same set of facts ? The classic case in this regard is TT Antony v. State (reads the judgment)

Luthra: TT Antony case was followed in the Babu Bhai case and the test is to see whether it is the same incident.

Luthra: The Court has to check whether the occurrence is of same incident, and therefore, the test that it is same must be applied. If the answer is yes then the second FIR is liable to be quashed and in our case every FIR relates to the same incident of 15 June, nothing else

Luthra reads the judgment in Arnab Goswami's case

SC: citation?

Luthra: The case had an interim order and was reported in SCALE with the citation 2020 7 SCALE 627

SC: What is your conlusion?

Luthra: The FIR by the one in Ajmer needs quashing because that man has not seen show. The subsequent FIR is the one in Kota & that is of 17 June and not the program aar paar. A case for FIR is not made therein. Ajmer does not have jurisdiction

Luthra: TT Antony case applies to me. I am in Noida. The offence is in Noida then how am I being dragged around the country ? That was the principle in Arnab Goswami, on which other FIRs were quashed. Next there was an apology.

Luthra: There was a heated debate which led to the mention of Alauddin Khilji and it has to be seen that every act is not an offence and it must be tested with nexus of the disorder that is sought to being shown. Just by saying “deliberate, conspiracy, malicious”........

Luthra: .... everything will fall within conviction. That cannot be done here.

Luthra says he will further submit a comprehensive note of submissions to aid the bench

Sr. Adv. Sushil Kumar Jain to argue for complainant and
Dr. Manish Singhvi to argue for State of Rajasthan.

Singhvi: There are controversial facts here and certain abuses have been used which led to feelings being hurt.

Singhvi: How can the “ordinary person” test apply here? Even though apology has been tendered, feelings of believers have already been hurt. It is indeed a case that falls under S. 295A, even if it’s not 153.

Singhvi: The entire concept of mens rea cannot be looked into at this preliminary stage. there has to be a probe instigation will conclude whether there was malicious intent or not

Singhvi: The FIR cannot be quashed

Justice Khanwilkar: We are not on quashing but to see whether it can happen at all or not.

Singhvi: offensive words were said which hurt people. case has been lodged and it is to be probed whether it was malicious or not

Apology was tendered after 30 hours. Whether he was trolled for it on social media and then he was forced to render it needs to be probed. He has also filed an FIR and his twitter profile will have details.

Luthra interjects: FIR by my client is on 20 June because there is abusive material that has come to my information with threats even on whatsapp and phone.

Singhvi: content of your FIR is not in question

Singhvi: There needs to be a probe on whether the apology was an afterthought. We have a right to get this investigated

SC: right or duty?

Singhvi: Indeed my duty. apologies. it is a duty to investigate if there is malice in this or not

SC: Contentions have been made. Whtd o you have to say?

Singhvi: @AMISHDEVGAN appears on shows and we just need an investigation on whether an offence has been committed or not. An FIR being filed is per se is only a preliminary stage and is not an abuse of process.

SC: Tell us which ingredient of the FIR demonstrates that investigation is essential? Just point to the relevant portion. Even one cognisable offence is good enough. Wher is it?

Singhvi reads the FIR.. refers to the point that “malicious intent” was employed during the show

Singhvi: This show ended up causing public disturbance.

SC: Come to Section 295A and show whether the ingredients have been satisfied? ingredients are not present in the FIR. So we have to read it along with the provisions and see if it merits an investigation.

Singhvi: allegations of malicious intent and hurting of sentiments is there in the FIR. We are saying that the show has hurt sentiments and there was malicious intention behind the reference to Chishti @AMISHDEVGAN

Singhvi reads the FIR registered in Nanded, State of Maharashtra

SC: Restrict yourself to only the Ajmer FIR

SC: the main argument on behalf of the petitioner was there was no mens rea. please counter on that point

Singhvi continues reading the FIR and allegations made therein

SC: Where is the allegations of mens rea?

Singhvi: Malicious and deliberate words are not used. But it is stated that "tries to inflame"

SC: What is the hindi version of it?

Singhvi: I don't have the Hindi version

SC: Give us the hindi versions of both the FIRs

Singhvi: Prima facie case is made out which requires further investigation. Section 95 is not applicable as it is not a case of slight harm. people have lodged FIR as they are deeply hurt. it is not a case where people are extra sensitive like the MS Dhoni case.

SC: a large number of people felt insulted. where is it stated?

Singhvi reads a page from FIR: sentiments from all followers were hurt.

SC: Does your FIR cover all the ingredients or touchers upon some. other side says there are no ingredient of Section 295A is not present

Singhvi: most of the ingredients are there

SC: You say 2 out 4 ingredients are there, isn't it?

Singhvi: Ingredients are hurt of religious sentiment, malicious intent is there, number of people affected, not a case of slight harm and thus essential ingredients of 295A is met out

Singhvi: Section 95 is not applicable. regarding the aspect of multiple FIRs. Offence will be committed where a section of the people feel offended.

Singhvi: offence is where the person feels offended and not where the telecast takes place. The Khwaja Chishti shrine is in Ajmer and that's why people of Ajmer are offended.

Singhvi: Even assuming My Lords, both places where it has been done (Noida)' and the consequence place (Ajmer) will have jurisdiction. According to Section 179 jurisdiction if at all will be at both places

Singhvi: Legislative guideline under Section 186 looks at FIR registered on same offence

Singhvi: In the case of multiple FIRs it has to be seen where all people are hurt. in the arnab goswami case FIRs were registered where people were hurt

SC: but can it be one investigation or multiple investigation?
if we transfer to one place then investigation can proceed

Singhvi: It can be consolidated but all parties should be allowed to lead the case. multiple investigations will lead to multiple charge sheets.

SC: that's why arnab goswami verdict proceeds on the same line as the first FIR was comprehensive and had all points covered

Singhvi: but we cannot quash all the FIRs

SC: But if separate FIR is there then probe has to be separate

Singhvi: if the statute is silent then my lords will have to evolve the law. one way is to quash like in Goswami case

SC: another way can be that one probe takes places and each complainant becomes a witness so that they are taken on record. any provision in crpc for the same?

Singhvi: my lords have crystallized it and I have nothing else to say

SC: so you say one probe with one chargesheet

Singhvi: yes there will be different chargesheets and multiple violations of law

SC: it will also be the case of double jeopardy

Singhvi: Let the probe be in the first place of FIR

SC: don't go for a straight jacket formula because the second FIR can be more comprehensive so let the court evolve a way out for this

Singhvi: an exercise of power under Section 482 crpc to quash an FIR needs to be checked. here balance needs to be struck between Article 19(1) and 19 (2).

Singhvi: MS Dhoni case has been relied upon. now see why the case was quashed... it is only when essential ingredients of the section were not made out. Here it's not the case as such.

Singhvi: FIR is only machinery to carry out the probe. Investigation needs to take place and thereby chargesheets need to be filed. court has to prima facie considered the charge sheet and the statement of witnesses. prima facie case needs to be made out

Singhvi: It needs to be seen whether the apology is an afterthought or is it genuine.

Singhvi concludes and Senior Adv Sushil Kumar Jain begins

SC: are you for Kota or Ajmer?

Jain: i am appearing for the one in Ajmer. Can appear for Kota too

SC: But that is not your brief

Jain: the case is covered under Arnab Goswami judgment.

SC: suppose there are 7 FIRs and it is argued that 2 needs to be quashed. can the 2 join the 5 FIR investigations so that their statement is recorded by the investigating officer

Jain: So far as TT Anthony case is concerned, Goswami has relied on it.

SC: you say that first FIR should be proceeded with. others can proceed with 161 statement and others become witnesses

Justice Khanna: adjust your connection, we cannot hear you properly.

SC: now it is on mute. Unmute your system Mr Jain

SC: do not read the FIR again. we have read it a number of times. don't worry about it. you can out in your written submissions. we cannot hear you correctly.

Jain: there is malicious intent...

SC: yes we have marked it along with a part of how it is a well thought conspiracy

Jain: regarding right of journalist under 19(1)(a) is same as a citizen to speak and express. it is about equal rights.

Jain: if the right of journalist impinges my right then a complaint can be made

SC: we got your point

Jain: remedy in the case is about filing the complaint

Jain: @AMISHDEVGAN cannot go under 32\ of the constitution. It does not give him a fundamental right to protect himself by infringing my right especially after feelings and belief has been hurt.

SC: we are on virtual hearing. time has to be respected. state has argued and so has the petitioner. You for the complainant has argued too. You can make written submissions. You want a prolonged hearing or a quick closure? make up your mind and come at 2 pm

Jain: i will take 15 minutes

SC: i cannot hear you and neither you are audible. you are only taking time. we will give you 15 minutes

Jain: I am thankful

SC: don't be thankful. finish arguments fast.

Bench to resume at 2 pm

Hearing resumes.

Jain: I was on Goswami's judgment.

SC: ita 15 minutes by the watch

Jain: Balance has to be drawn between fundamental right to speech and expression and the legal right to File FIR. Article 32 cannot be used to scuttle my right

Jain: the debate was not controlled by the anchor. the reference to term lootera is not out of the turn. its to be seen with the rest of the show. it cannot be seen as a mistake. The show was dividing the two communities.

Jain: please see the rules of the press council of India. May be he is not governed as it is electronic media but a journalist adheres by it. I have also served additional documents. i have given the copy of the Cable Television Network Act. Now please check the program code

Jain: no person shall transmit any program in conformity with the program code..this is what is stated. it bars attack on religious group, or community or show with communal attitude. it cannot contain anything half truth, obscenity or crticies or maligns a group

Jain: There is separate punishment for such offences as per the program code.

Jain now cites judgments stating that the program code needs to be adhered to. (states that program code cannot have anything which is defamatory or a half-truth)

Senior Adv Jain now takes the bench through the debate conducted by @AMISHDEVGAN on his show #AarPaar The debate went up to the level of dividing two communities to the extend of "kiska baap ka hai" and use of such terms.

Jain: This is the quality of debate @AMISHDEVGAN is conducting. He refers to waqf properties and says does these properties belong to their (Muslims) father?

SC: we need to go by your FIR. It does not deal with other matters but only references to Khwaja Chishti.

Jain: it needs to be seen in totality

Advocate Swati Bhardwaj appears for the State of Telanagana: Shares the FIR on screen with the judges

SC: please file it along with your written note

Bhardwaj: Yes will do. FIR notes the word "intentionally dishonoured"

Bhardwaj: FIR reads that Syed Qadir Moinuddin lodged a complaint on June 17 representing several Muslim and Sufi organisations stating that they were shocked to know that @AMISHDEVGAN had intentionally dishonoured Khwaja Chishti. There is men's real in the matter.

Bhardwaj: Due to stay, there could be no investigation. There are a catena of judgments which holds that probe needs to be conducted to see if there is an intention.

Bhardwaj: The FIR clearly mentions that the Sufi saint was intentionally dishonoured and hence Mens Rea exists.

Bhardwaj concludes.

Adv Aniruddh Joshi begins: as per the contention of whether people were hurt or not, for that social media posts can be relied on.

SC: Please read out your FIR. it is not on record.

Adv Joshi gets disconnected

Adv Rizwan Merchant argues for Maharashtra: there are two FIRs there. one in Nanded and one in Pydhonie. Now what is the procedure to be followed if there are multiple FIRs. TT Anthony case deals with it

Merchant: The FIR registered in every other state can be treated as statements under Section 162 CrPC and all be dealt by the first FIR in Ajmer and thus probe needs to be carried out. The principle of Anthony can be applied to multiple states too. This way Ajmer police can probe

SC: The principle can be moduled on the basis of facts of each case. How can the case be transferred to a place which does not have the means to probe the case. it can be an issue in the given case. but basically you are saying one investigation and one chargesheet

Merchant: When all the material of all the FIRs is considered together, then the entire material has to be considered to see a cognizable offence is made out.

SC: But will the witness have an opportunity to object to the chargesheet or a closure report?

Merchant: yes you are saying about the protest petition and you are correct that remedy is lost. but in that case the role of the witness will be very limited. witness under Section 162 cannot object to chargesheet

SC: protest petition can be filed under which provision?

Merchant: there is a case in this regard.

SC: that means the court can look into it and enlarge the scope of it so that witnesses can object too.

Merchant: but the issue is all witnesses file protest petitions then in such a sensitive case there will be hundreds of protest petitions.

SC: we need to evolve the law

Merchant: the petitioner is not in this court with clean hands. the factum of the repetition by Devgan in the show citing Chishtis name and citing it thrice shows intention. the petitioner does not deserve any relief. the feelings have already been hurt.

Merchant: after the telecast wrapped on June 16 the show was uploaded on youtube. in this case those offensive words were deleted. primary evidence will be the show originating from News18 uploaded on youtube.

Justice Khanna: have they deleted the words from youtube show

Merchant: it means it is hampering evidence and obstructing the course of justice

Justice Khanwilkar: is this point there in your affidavit?

Merchant: I am undertaking to file the pendrive which has the show on youtube

SC: the uploading was on the next day. may be by next day social media was strife with criticism. that is why may be the words were taken off from youtube.

Merchant: during debate Shadab Chauhan had referred to some saint and then Amish Devgan said he will muted and thrown out

Merchant: When he made the error when did not he apologise then and there. This is not a case of slight harm. media in pursuit of investigative journalism stretches the powers given to them and ventures into domain which can be avoided. that is why program code needs adherence

Merchant: this petitioner needs to be an habitual offender and can never be stopped. your lordships cannot enquire into the offence and the probe needs to be there. if there is no evidence then it can be closed but there needs to be a probe.

Merchant: Under 295A, there needs to be outraging of religious feelings along with mens rea. Next is insult. then the section delves into insult and attempt to insult.

SC: So far as 153A and 153B is concerned it is under offences against public tranquility and Section 295 is offences against religion. if FIR is for a particular head, then should probe with a charge against a different head?

merchant: it needs to be seen together

Merchant: this debate surpassed public tranquility and ventured into creating public disorder and disturbing communal harmony. the tone with which he said all of this has repercussions and needs to be probed. therefore please do not quash the FIR

Merchant: only Muslims dont view the show. all communities see the show. in Ajmer, Hindus, Baniya, they don't open the shops without visiting the shrine

Justice khanwilkar: that is the beauty of our culture

Merchant: this is not a trivial issue. By bringing Khwaja Garib Nawaz into a conversation of Alauddin Khilji does not make senses because Khwaja Chisti was dead and gone when Khilji had invaded. This is a point of probe and needs to be left open.

@AMISHDEVGAN #SupremeCourt

Merchant: truth is the first condition precedent to approach court under Article 32. But here first thing he says apology has been tendered.

Merchant: Let the probe take place. there is no question of prejudice in the investigation. if no evidence then closure report can be filed.

Adv Sachin Patil appears for Maharashtra: here every complainant constitutes a separate offence and they were hurt.

Justice Khanna: there can be 100 of FIRs. if he is convicted in one then there can be another case. how will the sentencing take place?

Patil: it is not a case of multiple FIRs of same incident. Arnab Goswami case do not lay down the correct law by quashing other FIRs

Patil: if you say complaint in Maharashtra is not valid as there is multiplicity of proceedings then that point is not legally tenable

SC: So you say it is not a case of multiple cases out of same incident but that its a case of separate offences arising out of the same action?

SC: Different FIR has different sections. but that does not mean it is out of a different cause of action.

Justice Khanna: all these are against a particular person where something is said against a group. we have to see what is the effect on the group?

Patil: but under 295A it may be a group or a community

Counsel for UP appears

Adv Vinod Diwarkar: there is an FIR registered by @AMISHDEVGAN in Gautam Buddh Nagar, UP

Justice Khanna: words spoken by you are accepted. whether they hurt outrageously cause injury as under Section 295a is a matter to be seen. one case will be the MS Dhoni case or outraging the religious feeling but whether its causing injury is a matter of probe

Senior Adv Luthra: there are two sets of ingredients of the offence. one is the act and one is act with a consequence. now criminal intimidation must cause alarm and causation of alarm is necessary and you have quashed when alarm was not caused.

Luthra: every word spoken in anger and haste would be an offence then all police would be busy, lawyers would have a lot of cases and courts would have been flooded. But that is not the case.

if I go somewhere and instigate a riot or abuse then its different

Luthra: I follow Arya Samaj and today if i say that temple worship should not be followed then that is a different case

SC: you are in a secure zone

Luthra: this is more secure as I am in quarantine because of my son

SC: wish you speedy recovery

Luthra: the irresponsible statement must be related to the consequences of a statute looking into irresponsible statements.

Luthra: In Ajmer FIR the man has not even seen the show. for example, if its said Jain hit someone with an axe which he heard from someone

SC: Then that is hearsay. but if someone says one is hit by an axe and he is found stabbed with axe then?

Luthra: here they speak about public disorder.

Luthra: registration of FIR all over India is interesting but malafide exercise as multiplicity of FIRs will make it impossible for an individual to work as a journalist. even after my tweet came out, FIRs continued to be registered. matters are going on and on.

Luthra: Petitioner had concluded saying we should respect all religion. can intent be now attributed to him?

Adv Vivek jain: it was a live debate and was not a pre recorded show.

SC: the show was on 16th, apology was on 17th

SC: arguments concluded and written submissions be filed by petitioners in a week and reply to that be filed in the next week. all original FIRs need to be submitted in whatever language they were registered in. place all of it on record.

SC: Orders reserved.

hearing over.