NEW DELHI: The Supreme Court on Monday asked the Delhi police to respond to the plea of CPI(M) leader Brinda Karat challenging the Delhi High Court's order dismissing a petition against the trial court's refusal to order registration of an FIR against Union Minister Anurag Thakur and BJP MP Pravesh Verma for their alleged hate speeches over anti-CAA protests.
A bench headed by Justice KM Joseph while referring to the slogan "desh ke gaddaron ko, goli maro" (shoot the traitors) raised by Thakur at a rally, jokingly said, "I believe 'Gaddar' means traitor? Certainly here 'Goli maro' was not in terms of medical prescription."
A medicinal tablet is called 'goli' in Hindi. The bench, also comprising BV Nagarathna, issued the notice to the city police and sought its response within three weeks.
During the hearing, the bench observed prima facie the magistrate's stand that sanction under section 196 CrPC was required for lodging FIRs against the two BJP leaders was not correct.
Senior advocate Siddharth Aggarwal, appearing for CPI (M) leaders Brinda Karat and KM Tiwari, pointed out that the Election Commission, after taking cognizance of the speeches made by these leaders, had barred them from campaigning for a certain time.
Thakur was addressing an election rally in Delhi's Rithala area in January 2020 where he allegedly raised the slogan.
Advocate Aggarwal alleged the slogan 'goli maro', exhorting people to shoot, was translated into real action when shots were fired at anti-CAA protest sites within days.
He said the high court had also adversely commented on the speeches made by Thakur and Pravesh Verma.
Aggarwal said the judgement relied upon by the magistrate that dealt with the need for sanction to register an FIR was in the context of the Prevention of Corruption Act.
"Sanction is not required for offences under Indian Penal Code and sanction is not needed to register FIR for hate speeches. The magistrate court has completely erred in its finding. We are three years down the line and no FIR has been lodged as of now in connection with those speeches," Aggarwal said.
Referring to the apex court's order of last year, Aggarwal said the top court has asked police to take suo motu (on its own) cognizance of hate speeches and register FIR even if no complaint has been made.
"This plea is not merely an issue of setting aside the magistrate's order but it was also a matter where some guidelines could be laid down to be followed by the police while dealing with hate speech cases," he said.
Justice Joseph asked Aggarwal how section 153A of IPC (wantonly giving provocation with intent to cause riots) was attracted in this case as the protests against the CAA were secular and people from different communities participated in it.
Aggarwal submitted the slogan was raised at an election rally and those who attended the protest at Shaheen Bagh were mostly members of a particular community.
"The exhortation of 'traitors' was in the context of that particular group," he asserted, adding the protesters were agitating against the Citizenship Amendment Act (CAA) and calling those protesting against the law "traitors" will come under section 153A of the IPC.
The bench then inquired about the status report filed by the Delhi police which had concluded that no offence was made out against the accused MPs.
Aggarwal said the magistrate did not accept Delhi Police's status report but erred in his reasoning about the requirement of sanction for prosecution.
Justice Joseph said, "If any person makes a statement 'goli maro'...will it be an offence for anyone to say to kill the traitors irrespective of religion. Will it be a cognizable offence in its own right? IPC allows violence only in private defence.
If you say that 'goli maro' irrespective of 153A, are there any other provisions like this? Aggarwal said offence of abetment under section 107 of IPC (abetment of a thing) may be attracted and said if the exhortation is an instigation, even if instigation does not lead to final act, it will be an offence.
"All this requires investigation, whether the statement was communal, what were the overtones etc. For three years, there has been no investigation by the police," he said.
On June 13 last year, the Delhi High Court dismissed the petition filed by Karat and Tiwari against the two BJP MPs for their alleged hate speeches.
The high court had refused to interfere with the trial court's order, saying under the law sanction is required to be obtained from the competent authority for registration of FIR in the present facts.
The petitioners had claimed in their complaint before the trial court that Thakur and Verma had sought to "incite people as a result of which three incidents of firing took place at two different protest sites in Delhi".
The petitioners alleged, at a rally in Rithala in the national capital on January 27, 2020, Thakur egged on the crowd to raise an incendiary slogan -- "shoot the traitors"-- after lashing out at anti-CAA protesters of Shaheen Bagh.
They claimed Verma, too, made inflammatory speeches against the Shaheen Bagh protesters on January 28, 2020.
The trial court had on August 26, 2021 dismissed the petitioners' complaint on the ground that it was not sustainable as the requisite sanction from the central government, which was the competent authority, had not been obtained.
In their complaint, Karat and Tiwari had sought FIRs against the two BJP leaders under various sections, including 153-A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.), 153-B (imputations, assertions prejudicial to national integration) and 295-A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) of the IPC.
They had also sought action under other sections of the IPC, including 298 (uttering, words, etc., with deliberate intent to wound the religious feelings of any person), 504 (intentional insult with intent to provoke breach of the peace), 505 (statements conducing to public mischief) and 506 (punishment for criminal intimidation).
The maximum punishment for the offences is a jail term of seven years.