Thread by @barandbench

Supreme Court to shortly hear the plea by journalist Vinod Dua seeking a stay on FIRs filed against him accusing him of sedition, other charges over statements made on his YouTube show, the Vinod Dua show.

@VinodDua7

On June 14, SC granted Dua protection from arrest but had refused to stay the FIR registered in Simla.

The matter is being heard by a Bench of Justices UU Lalit, Mohan M Shantanagoudar, and Vineet Saran.

Hearing begins.

ASG SV Raju makes submissions: To recap, even if one cognisable offence is made out, FIR can't be quashed.

- 153A IPC and 188 IPC offences also made out

- In any case attempt or abetment to commit offence also made out, which are also cognizable

ASG Raju adds from the transcript of the show, it is clear that there is an indirect way of instigating people. The actual offence need not take place.

@VinodDua7

ASG Raju relies on three rulings to argue that there is no bar to the investigation/FIR. Relevant excerpts of these rulings are being read out for the Bench.

Raju: As far as the contentions that the statements were made in good faith or were bonafide are concerned - these are all defences, these cannot be looked at this stage.

Raju cites case 2010 6 SCC 243,

Raju adds: When there are disputed questions of facts/ circumstances, powers under Section 482, CrPC or Article 32 of the Constitution cannot be exercised to quash the FIR.

Raju: Order promulgated by the public servant, in this case, is the COVID-19 Lockdown Guidelines. If something is done vis a vis these guidelines, it would come u/Sec 188, IPC

He adds that since he is appearing for the Central Govt, he has only a limited role.

Court: What are your submissions on that point of laying down guidelines...

Raju responds that the guidelines concern FIRs against doctors. In that context, Court has issued guidelines since registration of FIR would be hazardous given nature of duties performed by doctors

Raju: That would not include journalists because anyone can become a journalist. There are no qualifications. No expertise is required. A layman can become a journalist. There is no control like how the MCI exercises control for doctors. It is not a profession, it is an activity.

Sr Adv Mahesh Jethmalani weighs in: The order under 188, IPC which has been violated are two orders which were promulgated on March 24 and 28 by Home Ministry. These are the two public orders violated.

Not the Disaster management guidelines, but these two orders.

ASG Raju says he is not disputing this aspect and that he stands corrected.

Mahesh Jethmalani reads case laws including the Jacob Mathews case to speak of general guidelines when it comes to prosecuting certain categories of persons.

Jethmalani: There was no pre-censorship, only self-censorship (for media). Today we have electronic media and, something more capable of misuse, i.e. the social media

Jethmalani: The FIR deals with a podcast on social media.

Today anyone can get up - anyone with a paid-up capital of 5 lakhs... loss of crores can get up and make allegations... even sedition is made in this case, when you incite somebody to riot.

Jethmalani on whether @VinodDua7 is entitled preliminary enquiry: It is not that a journalist is bereft of a preliminary inquiry. But it will be left to the discretion of investigating agencies.

Jethmalani, after reading cases on certain categories of cases that require preliminary enquiries: All exceptions have a rationale.

Jethmalani: Unfortunately, journalists, like other ordinary mortals, must not have a category for preliminary enquiry reserved for them.

Solicitor General Tushar Mehta: This is a simple case of Sec 482 (CrPC) or Art 32 parameters. Your Lordships have the FIR, the statements.

If the Court finds that investigation case is made out, larger issues of journalistic expression etc. may not be looked into, Mehta submits

Senior Advocate Vikas Singh for @VinodDua7 reads out the charges against Dua

Singh: It is not an offence under the Disaster Management Act or Section 153A, IPC.

Singh reads case laws, argues: On a plain reading of the FIR, if an offence is made out, it is made out - if it is not made out, it is not made out.

Singh disputes certain submissions made on the show's transcript. He adds that these submissions are wrong, but even if this was what was said, it is not an offence.

Singh reads out Section 153 of the IPC (wantonly giving provocation with intent to cause riot) which @VinodDua7 is accused of.

He highlights that provision refers to "malignantly or wantonly", by doing anything illegal, knowing it to be likely to cause the offence of rioting

Singh: If somebody doesn't read the section and says that what I said is rioting...

He goes on to read out what @VinodDua7 is stated to have said on his show, where Dua is stated to have quoted prominent economists that food riots are likely if proper measures are not made.

Mehta interjects: This can be his (@VinodDua7) defence, milord, cant be ...

Court: Let him make his submissions, we will consider.

Singh continues reading submissions, including what was stated on the show. Refers to concurrent reports regarding the export of ventilators.

Singh adds: Exactly I have said this in my speech.

Singh is reading case laws including those which state that a case won't stand unless there is a complaint in writing by the competent public servant whose order has been disobeyed

Nobody has implemented the police reforms recommended by the Supreme Court in Prakash Singh's case, Sr Adv Singh mentions while arguing that this also why "cases like this" come up.

Singh adds that preliminary inquiry should be there for journalists: This kind of protection is very necessary.

He adds: They have not argued, but they have just said it is "sedition"

Countering submissions made by Jethmalani that @VinodDua7 is a "fly by night journalist", Singh makes submissions on various roles played by Dua during 46 years in journalism - including roles in NDTV, CNN, Doordarshan, on selection boards for scholarships etc.

Singh recounts the COVID-19 lockdown scenario that prevailed when @VinodDua7 made his show.

He submits that when the first lockdown was announced, the movement of migrant workers was not taken into consideration.

Singh makes reference to relaxations on payment of rent, migrant labour considerations etc. made by the Govt in later lockdown guidelines.

Singh refers to the submission made by the Centre through SG Mehta during Migrant crisis hearings in SC.

Singh: A palatably wrong statement was made by SG Mehta on instructions that "as on 11 am today, there is no person walking on the roads in an attempt to reach hometowns."

I'm surprised Milords why no action for perjury has been taken on this.

This kind of palatably wrong statement was made and some action should have been taken, Singh adds.

Singh: Who instructed the Solicitor General?

Supreme Court has received so much flak. This is because of this false statement made and SC believing the statement.

Court asks if these submissions are required.

Singh responds he is making the statement because the case against @VinodDua7 is as if he is responsible for the migrant crisis.

Singh: Because they say it is because of my statement that migrant labourers started walking!

Singh: (They say) I am the reason responsible for this migrant labourer walking on the streets, that my statement made them think there will be a food riot, that I have such a huge youtube presence that they all believed me and started walking.

@VinodDua7

#MigrantCrisis

Singh adds that even the Supreme Court had taken cognisance of the #MigrantCrisis. Several HCs also passed orders.

However, Singh adds that the Court was "taken for a ride" owing to the wrong statements made by the Central Govt.

Singh: There was a time when the SC could have done something (on the #MigrantCrisis)

If this wrong statement (by the Centre) had not been made, your Lordships would not have closed the proceedings the way it was closed.

Singh argues that the allegation that the @VinodDua7 show had caused the migrant labour exodus amid the COVID-19 lockdown was only an afterthought. It was not part of the complaint, to begin with, he adds.

Singh: The said argument has been made only to somehow justify the FIR

Singh: Disaster Management Act is a complete code.

A case under the Act has to start on a complaint by the competent authority. It is not as if any private party can make the complaint, Singh adds.

Judgments re Sec 195, CrPC would apply.

Singh reads the transcript of the @VinodDua7 show with regard to the timing of the ban on the export of ventilators, and how they were freely available for export before March 24.

Singh: Arguments made by respondents have gone way beyond the FIR.

Justice Saran: Both sides have gone beyond.

Singh: Not both sides. I am only responding

The Court and Singh are discussing the applicability of certain case laws to this case.

Singh seeks to distinguish a judgment cited: Firstly the ingredients of the offence is not made out in the FIR at all...

Court: Then whether it (complaint) came from the rightful man or authority makes no difference

Singh agrees: It goes to the root of the matter

Court observes, on submissions by Singh, that CrPC recognises that in certain cases the complaint has to come from the aggrieved person himself

Singh: And the aggrieved person is also identified.

ASG Raju seeks to make certain submissions rebutting Singh

Raju: He (Singh) has raised new points. Won't take more than 10 mins

Court: You have to finish at the stroke of 4 pm

Raju cites certain case laws regarding the limit of court enquiry in petitions to quash FIRs.

Three judgments are cited by ASG Raju to submit that investigation, in this case, can go on.

Jethmalani makes submissions "only to assist the court, and not on merits."

Jethmalani: There is a qualitative difference between proceedings 195 and 199, CrPC which are not found in the section, but can be inferred from schedules

Court muses on the aspect of when the question of whether the complaint has been made by the appropriate party (or competent authority in some cases) would arise.

Court notes that if this is at the stage of cognisance, and there is no bar to an investigation,

"effectively the liberty of a person can be put to prejudice if the aggrieved public servant does not lodge a written complaint, then what?"

Jethmalani: There is legislative wisdom

Court: Shoudn't legislative wisdom be carried in full? Otherwise, you will be putting liberty of persons to prejudice in tremendously

Jethmalani: That kind of sit can't arise...

Justice Lalit: It can arise. I will give you an example.

Lalit J.: It was Jayalalithaa's matter, where she filed nomination from more than 2 constituencies. PIL was filed, not a complaint from Returning Officers. Madras HC said prosecute the person concerned.

There was no complaint by the aggrieved party, the RO - what do we do?

Jethmalani: It will not arise in offences under IPC, the offences are bailable

Court notes that this is not the only concern.

Court: You can do it (file the FIR) when after the complaint is lodged by aggrieved persons

Court to ASG Raju: What is your last word?

Raju points out that Section 169, CrPC is also there where even if a person arrested, he can be set free (for want of sufficient evidence)

Court: When there are two interpretations possible, should we not accept the interpretation that subserves someone's rights under Part III (of the Constitution i.e. Fundamental Rights)?

Raju responds: There are no two interpretations.

#SupremeCourt reserves orders in plea by Journalist @VinodDua7 to quash FIRs filed against him for sedition and other offences over comments made on YouTube show, the Vinod Dua show.

Arguments have concluded. 3 days' time given for written submissions, if any, to be submitted.

Supreme Court hears Vinod Dua's plea against Sedition FIR registered in Himachal Pradesh [LIVE UPDATES]

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