-Report by Deepti Dubey
The Punjab and Haryana High Court, on 12th October quashed the FIR lodged against Kumar Vishwas, former Aam Aadmi Party leader, on the allegations of issuing provocative statements and other offenses on April 12, 2022. The controversial statements were made in regard to the separatist motive of AAP.
Mr. Kumar Vishwas gave an interview on 16th February, during Vidhan Sabha elections wherein he made accusations regarding the involvement of Mr. Arvind Kejriwal, CM of Delhi with anti-social elements, including separatist groups. The interview was widely spread all over social media and included deliberate intentions to associate every leader of the AAP (Aam Aadmi Party) with nefarious activities.
On 12th April, 2022 as per the complaint, the complainant was faced by a group of 10-12 persons who attempted assault, following the victory of the AAP in Vidhan Sabha Elections. The complainant alleged that the incident was a result of the alleged incitement by Kumar Vishwas in his interview.
A written complaint was given to the SHO, Police Station Sadar, Rupnagar, Punjab, based on the mentioned events, against the petitioner, following which an FIR was filed. On 15th April, the investigation was handled by the SIT. The Special Investigation Team [SIT], revealed that the hooligans had apprised the complainant that they had watched the interview of Kumar Vishwas who repeated the statements made in the interview. The petitioner was given a notice under S. 41-A of the CrPC, following which, he approached the court for quashing the FIR.
The petitioners contended that the FIR was driven by political motives. It was argued that the state machinery was being misused to avenge the petitioner’s defiance of AAP.
The complainant submitted that there is a prima facie case and the petition must be dismissed. The state contended that the investigation reveals that the interview flared up the sentiments and led to the outburst and hooliganism.
The petitioner has been arraigned as an accused for violating sections 153, 153-A, 505, 505(2), 116, 143, 147, 323, 341, 120-B of IPC and Section 125 of the Representation of Peoples Act, 1951.
REASONING AND DECISION OF THE COURT
The court, while quashing the FIR, reasoned that there is no nexus between the incident in April and the interview in February. The allegations levelled in the FIR even if taken on face value and accepted in entirety, though not admitted, do not prima facie constitute any offense against the petitioner under the abovementioned sections. An act of provocation intended to cause a riot under S.153A of IPC involves a substantial factor of mens rea i.e. the intention. The court in the instant case held that there was no element of culpability, even if all investigations were to be considered valid. Consequently, The Court invoked the inherent jurisdiction under Section 482 of CrPC and held that none of the penal provisions under which Kumar Vishwas stood arraigned is prima facie made out against him.
FREEDOM OF SPEECH AND EXPRESSION
The Punjab and Haryana High court in the instant judgment took a step further and referred to, S Rangarajan v. P Jagjivan Ram (1989) wherein the Supreme Court held in paragraph 45 that the anticipated danger to the freedom of speech should not be remote. It should have a proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest.
It also referred to the Shreya Singhal judgment which highlighted three concepts which are fundamental in understanding the reach of this most basic of human rights, they are discussion, advocacy and incitement. It is only when the freedom of speech reaches incitement, should it be curbed to protect the public interest.
While upholding the foundation of democracy, the right to freedom, the court quashed the FIR against Kumar Vishwas, to prevent abuse of the process of law.