# AMISH DEVGAN v. UNION OF INDIA AND OTHERS

- **Citation:** [2020] 14 S.C.R. 198
- **Court:** Supreme Court of India
- **Decided:** 2020-12-07
- **Bench:** A. M. Khanwilkar, Sanjiv Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/amish-devgan-v-union-of-india-and-others-34219
- **Pages:** 96

## Headnote

Constitution of India - Arts. 19(1)(a), 19(2) and 32 - Penal
Code, 1860 - ss. 295A, 153A, 505(2) - Hate speech - The petitioner
hosted and anchored a debate on the Places of worship (Special
Provisions) Act, 1991 on a news channel - While hosting the debate,
the petitioner had described Pir Hazrat Moinuddin Chishti, as an
invader, terrorist and robber who had come to India to convert its
population to Islam - Post the telecast as many as seven FIRs
concerning the said episode were filed and registered against the
petitioner in the States of Rajasthan, Telangana, Maharashtra and
Madhya Pradesh - It was alleged that 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 - The petitioner field writ
petition and sought (a) quashing of FIRs/ complaints; (b) in
alternative, transfer and club the FIRs mentioned with the First FIR,
i.e. FIR at Ajmer, Rajasthan; (c) direction that no coercive process
to be taken against the petitioner in the FIR and the Union of India
to provide him and his family adequate safety and security - In his
submissions, petitioner expressed regret and claimed that words were
uttered inadvertently and by mistake - An interim order was passed
by the Supreme Court that stayed further steps/action on the FIRs
mentioned in the writ petition and petitioner was protected against
any coercive process arising out of or relating to the said FIRs -
Held: Three elements can be used to define and identify 'hate speech'
namely- content-based element, intent-based element and harmbased element - The content-based element involves open use of
words and phrases generally considered to be offensive to a
particular community and objectively offensive to the society - The
intent-based element of 'hate speech' requires the speaker's message
to intend only to promote hatred, violence or resentment against a
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particular class or group without communicating any legitimate
message - The harm or impact-based element refers to the
consequences of the 'hate speech' that is to harm victim which can
be violent or such as loss of self-esteem, economic or social
subordination - S.295A of the Penal Code encapsulates all three
elements, namely, it refers to the content-based element when it refers
to words either spoken or written or by signs or visible representation
- Similarly, sub-section 505 of the Penal Code refers to a person
publishing or circulating any statement or report containing rumour
or alarming news - In the instant case, the petitioner was equal coparticipant, 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 intent and the 'harm/impact' - These
have to evaluated before the Court can form an opinion on whether
an offence is made out - The petitioner also relies on his apology -
Thus, it is not an appropriate stage to quash FIR and stall the
investigation into all the relevant aspects - The interim protection
granted to the petitioner against arrest subject to his joining and
cooperating in investigation to continue - Further, prayer to transfer
all the FIRs to police station Dargah, Ajmer, Rajasthan accepted.
Code of Criminal Procedure, 1973 - s.156(1) and s.179 -
Conjoint reading of - Penal Code, 1860 - ss. 295A, 153A, 505(2)
- Hate speech - Cause of Action - While hosting a debate show,
the petitioner had described Pir Hazrat Moinuddin Chishti, as an
invader, terrorist and robber who had come to India to convert its
population to Islam - Post the telecast as many as seven FIRs
concerning the said episode were filed and registered against the
petitioner in the States of Rajasthan, Telangana, Maharashtra and
Madhya Pradesh - Petitioner contended that criminal proceedings
arising from the impugned FIRs

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 [2020] 14 S.C.R. 198
AMISH DEVGAN
v.
UNION OF INDIA AND OTHERS
(Writ Petition (Criminal) No. 160 of 2020)
DECEMBER 07, 2020
[A. M. KHANWILKAR AND SANJIV KHANNA, JJ.]
Constitution of India - Arts. 19(1)(a), 19(2) and 32 - Penal
Code, 1860 - ss. 295A, 153A, 505(2) - Hate speech - The petitioner
hosted and anchored a debate on the Places of worship (Special
Provisions) Act, 1991 on a news channel - While hosting the debate,
the petitioner had described Pir Hazrat Moinuddin Chishti, as an
invader, terrorist and robber who had come to India to convert its
population to Islam - Post the telecast as many as seven FIRs
concerning the said episode were filed and registered against the
petitioner in the States of Rajasthan, Telangana, Maharashtra and
Madhya Pradesh - It was alleged that 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 - The petitioner field writ
petition and sought (a) quashing of FIRs/ complaints; (b) in
alternative, transfer and club the FIRs mentioned with the First FIR,
i.e. FIR at Ajmer, Rajasthan; (c) direction that no coercive process
to be taken against the petitioner in the FIR and the Union of India
to provide him and his family adequate safety and security - In his
submissions, petitioner expressed regret and claimed that words were
uttered inadvertently and by mistake - An interim order was passed
by the Supreme Court that stayed further steps/action on the FIRs
mentioned in the writ petition and petitioner was protected against
any coercive process arising out of or relating to the said FIRs -
Held: Three elements can be used to define and identify 'hate speech'
namely- content-based element, intent-based element and harmbased element - The content-based element involves open use of
words and phrases generally considered to be offensive to a
particular community and objectively offensive to the society - The
intent-based element of 'hate speech' requires the speaker's message
to intend only to promote hatred, violence or resentment against a
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particular class or group without communicating any legitimate
message - The harm or impact-based element refers to the
consequences of the 'hate speech' that is to harm victim which can
be violent or such as loss of self-esteem, economic or social
subordination - S.295A of the Penal Code encapsulates all three
elements, namely, it refers to the content-based element when it refers
to words either spoken or written or by signs or visible representation
- Similarly, sub-section 505 of the Penal Code refers to a person
publishing or circulating any statement or report containing rumour
or alarming news - In the instant case, the petitioner was equal coparticipant, 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 intent and the 'harm/impact' - These
have to evaluated before the Court can form an opinion on whether
an offence is made out - The petitioner also relies on his apology -
Thus, it is not an appropriate stage to quash FIR and stall the
investigation into all the relevant aspects - The interim protection
granted to the petitioner against arrest subject to his joining and
cooperating in investigation to continue - Further, prayer to transfer
all the FIRs to police station Dargah, Ajmer, Rajasthan accepted.
Code of Criminal Procedure, 1973 - s.156(1) and s.179 -
Conjoint reading of - Penal Code, 1860 - ss. 295A, 153A, 505(2)
- Hate speech - Cause of Action - While hosting a debate show,
the petitioner had described Pir Hazrat Moinuddin Chishti, as an
invader, terrorist and robber who had come to India to convert its
population to Islam - Post the telecast as many as seven FIRs
concerning the said episode were filed and registered against the
petitioner in the States of Rajasthan, Telangana, Maharashtra and
Madhya Pradesh - Petitioner contended that criminal proceedings
arising from the impugned FIRs ought to be quashed as these FIRs
were registered in places where no 'cause of action' arose - Held:
s.179 of Cr.P.C. provides that an offence is triable at the place where
an act is done or its consequence ensues - The audience, including
the complainants, were located in different parts of India and were
affected by the utterances of the petitioner - Further, clause (1) of
s.156 of Cr.P.C. provides that any officer in-charge of a police
station may investigate any cognizable case which a court having
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jurisdiction over the local limits of such station would have the
power to inquire into or try - Thus, a conjoint reading of ss.179
and 156 (1) of the Cr.P.C. make it clear that the impugned FIRs do
not suffer from this jurisdictional defect.
Penal Code, 1860 - s. 95 - Act causing slight harm - While
hosting a debate show, the petitioner had described Pir Hazrat
Moinuddin Chishti, as an invader, terrorist and robber who had
come to India to convert its population to Islam - The petitioner has
relied upon the decision of the Supreme Court in Veeda Menez and
the decision of the High Court of Delhi in Neelam Mahajan to plead
the defence of trifle u/s. 95 of the Penal Code - Held: The instant
case cannot be equated with either Veeda Menez or Neelam
Mahajan's case where the factual matrix was undisputed and admitted
- It would be wrong and inappropriate in the present context to
prejudge and pronounce on aspects which are factual and disputed
- The plea raised by the petitioner cannot be accepted without
ascertaining facts and evidence.
Constitution of India - Arts. 19(1)(a), 19(2) and 32 - Hate
Speech - Constitutional and statutory treatment of 'hate speech'
depends on the values sought to be promoted, perceived harm
involved and the importance of these harms - Consequently, a
universal definition of 'hate speech' remains difficult, except for
one commonality that 'incitement to violence' is punishable.
International Law - Hate Speech - The American Framework
on hate speech is based on four major philosophical justifications;
Justification from democracy, Social contract theory, Pursuit of the
truth and Idea of autonomy - The Canadian approach emphasises
on multiculturalism and group equality, as it places greater emphasis
on cultural diversity and promotes the idea of ethnic mosaic - The
Australian approach is substantially aligned with Canada - The
South African position regards dignity as paramount constitutional
value and the law and the courts are willing to subjugate freedom
of expression when the latter sufficiently undermines the former -
The position in the United Kingdom has shifted over the years from
reinforcing the security of the government to checking incitement
to racial hatred among non-target audience with the aim of
protecting targets against racially motivated harassment - Germany
believes that freedom of expression is one amongst several rights
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which is limited by principles of equality, dignity and multiculturalism
- The French law gives primacy to freedom of expression, which it
believes is meaningless without the right to offend, which would to
some not only include the right to criticise and provoke but also the
right to ridicule when it comes to ideas and beliefs, including
religious beliefs.
Penal Code, 1860 - s.295A - Held: Import of s.295A of the
Penal Code, Ramji Lal Modi holds, is to curb speech made with
'malicious intent' and not 'offensive speech' - Criminality would
not include insults to religion offered unwittingly, carelessly or
without deliberate or malicious intent to outrage the religious feelings
- Only aggravated form of insult to religion when it is perpetuated
with deliberate and malicious intent to outrage the religious feelings
of that group is punishable.
Constitution of India - Art. 19 - Penal Code, 1860 - s.153A
and s.505(2) - In Ramji Lal Modi and the later decision in Bilal
Ahmed Kaloo, which had examined ss.153A and 505(2) of the Penal
Code, had primarily applied the 'Bad Tendency test' as propounded
by the American jurists - In Dr. Ram Manohar Lohia, referring to the
words 'in the interest of... public order' in clause (2) to Article 19
had observed that order is a basic need in any organised society -
It implies orderly state of society or community in which the citizens
can peacefully pursue their normal activities of life .
Words and Phrases - 'minor breaches' and 'security of State'
- discuss and defined.
Constitution of India - Art. 19 - 'Dignity' in the context of
hate speech - Held: Loss of dignity and selfworth of the targeted
group members contributes to disharmony amongst groups, erodes
tolerance and open-mindedness which are a must for multi-cultural
society committed to the idea of equality - It affects an individual
as a member of a group - It is however necessary that at least two
groups or communities must be involved; merely referring to feelings
of one community or group without any reference to any other
community or group does not attract the 'hate speech' definition.
Constitution of India - Art. 19 - Hate speech - Dignity of
individual and unity and integrity of the nation - Held: Dignity of
individual and unity and integrity of the nation are linked, one in
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the form of rights of individuals and other in the form of individual's
obligation to others to ensure unity and integrity of the nation -
The unity and integrity of the nation cannot be overlooked and
slighted, as the acts that 'promote' or are 'likely' to 'promote'
divisiveness, alienation and schematism do directly and indirectly
impinge on the diversity and pluralism, and when they are with the
objective and intent to cause public disorder or to demean dignity
of the targeted groups, they have to be dealt with as per law - The
purpose is not to curtail right to expression and speech, albeit not
gloss over specific egregious threats to public disorder and in
particular the unity and integrity of the nation.
Constitution of India - Art. 19 - Hate speech - Analysis and
definition of - Held: Three distinct elements that legislatures and
courts can use to define and identify 'hate speech', namely - contentbased element, intent-based element and harm-based element (or
impact-based element) - The content-based element involves open
use of words and phrases generally considered to be offensive to a
particular community and objectively offensive to the society - The
intent-based element of 'hate speech' requires the speaker's message
to intend only to promote hatred, violence or resentment against a
particular class or group without communicating any legitimate
message - The harm or impact-based element refers to the
consequences of the 'hate speech' that is to harm victim which can
be violent or such as loss of self-esteem, economic or social
subordination.
Constitution of India - Art. 19 - Distinction between Free
speech and Hate speech - Held: A distinction between 'free speech'
which includes the right to comment, favour or criticise government
policies; and 'hate speech' creating or spreading hatred against a
targeted community or group - The former is primarily concerned
with political, social and economic issues and policy matters, the
latter would not primarily focus on the subject matter but on the
substance of the message which is to cause humiliation and
alienation of the targeted group - The object of criminalising the
latter type of speech is to protect the dignity and to ensure political
and social equality between different identities and groups
regardless of caste, creed, religion, sex, gender identity, sexual
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orientation, linguistic preference etc.- Freedom to express and speak
is the most important condition for political democracy.
Words and Phrases - 'Tolerance' - discuss and defined.
Penal Code, 1860 - s.153A - Held: Deliberate and malicious
intent is necessary and can be gathered from the words itselfsatisfying the test of top of Clapham omnibus, the who factor person
making the comment, the targeted and non targeted group, the
context and occasion factor- the time and circumstances in which
the words or speech was made, the state of feeling between the two
communities, etc. and the proximate nexus with the protected harm
to cumulatively satiate the test of 'hate speech' - 'Good faith' and
'no legitimate purpose' test would apply, as they are important in
considering the intent factor.
Penal Code, 1860 - s.153A (b) - Held: In the context of
s.153A(b), public tranquillity, given the nature of the consequence
in the form of punishment of imprisonment of up to three years,
must be read in a restricted sense synonymous with public order
and safety and not normal law and order issues that do not endanger
the public - It cannot be given the widest meaning so as to fall foul
of the requirement of reasonableness which is a constitutional
mandate.
Words and Phrases - "Attempt' in the context of hate speech
- Held: An 'attempt to constitute a crime', the impugned act should
be more than mere preparation and reasonably proximate to the
consummation of the offence, which has been interrupted - In the
context of 'hate speech', including the offences related to promoting
disharmony or feelings of enmity, hatred or ill-will, and insulting
the religion or the religious beliefs, it would certainly require the
actual utterance of words or something more than thought which
would constitute the content.
Code of Criminal Procedure, 1973 - Quashing of FIR at an
early stage - The Supreme Court has at the initial stage quashed
the proceedings arising out of the FIR, namely, Manzar Sayeed
Khan, Mahendra Singh Dhoni, Ramesh as well as Balwant Singh -
However, the ratio in Balwant Singh has to be applied with caution
as the decision had proceeded on failure of prosecution.
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Code of Criminal Procedure, 1973 - First Information Report
(FIR) - Definition and meaning of - Held: Acronym FIR, or the
First Information Report, is neither defined in the Criminal Code
nor is used therein, albeit it refers to the information relating to the
commission of a cognisable offence - This information, if given
orally to an officer in-charge of the police station, is mandated to
be reduced in writing - Information to be recorded in writing need
not be necessarily by an eye-witness, and hence, cannot be rejected
merely because it is hearsay - S.154 does not mandate nor is this
requirement manifest from other provisions of the Criminal Code -
Lalita Kumari held that s.154 of the Criminal Code, in unequivocal
terms, mandates registration of FIR on receipt of all cognisable
offences, subject to exceptions in which case a preliminary inquiry
is required - Tapan Kumar Singh held that the FIR is not an
encyclopaedia disclosing all facts and details relating to the offence.
Code of Criminal Procedure, 1973 - FIR - Quashing of -
FIRs registered against the petitioner for describing Pir Hazrat
Moinuddin Chishti, as an invader, terrorist and robber who had
come to India to convert its population to Islam - Petitioner sought
quashing of FIRs - Held: The petitioner was an equal co-participant,
rather than a mere host - Three distinct elements that used to define
and identify 'hate speech', namely-content-based element, intentbased element and harm-based element (or impact-based element),
need to be evaluated before the Court - These have to be evaluated,
before the Court form an opinion on whether an offence is made
out - Thus, it would not be appropriate at this stage to quash FIRs
and stall the investigation into all the relevant aspects.
Code of Criminal Procedure, 1973 - Multiple FIRs - In
Babubhai v. State of Gujarat and others wherein the test to determine
sameness of the FIRs has been elucidated as when the subject matter
of the FIRs is the same incident, same occurrence or are in regard
to incidents which are two or more parts of the same transaction -
If the answer to the question is affirmative, then the second FIR
need not be proceeded with.
Words and Phrases - 'ordre publique', 'public tranquillity' and
'public order' - discussed.
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Disposing of the writ petition, the Court
HELD: 1. The Section 295A of the Penal Code encapsulates
of all three elements, namely; content-based element, intentbased element and harm-based element (or impact-based
element), it refers to the content-based element when it refers
to words either spoken or written, or by signs or visible
representation or otherwise. It also refers to deliberate and
malicious intent on the part of the maker to outrage religious
feeling of any class of citizens of India. The last portion of the
said section refers to the harm-based element, that is, insult or
attempt to insult religions or religious belief of that class.
Similarly, subsection (2) to Section 505 refers to a person making
publishing or circulating any statement or report containing
rumour or alarming news. Thereafter, it refers to the intent of
the person which should be to create or promote and then refers
to the harm-based element that is, feeling of enmity, hatred or illwill between different religions, religious groups or castes or
communities, etc. [Para 65][275-E-G]
2. In Bilal Ahmad Kaloo, this Court had drawn a distinction
between sub-section (2) to Section 505 and clause (a) to Section
153A of the Penal Code observing that publication is not
necessary in the latter while it is sine qua non under clause (2) of
Section 505. Clause (2) of Section 505 of the Penal Code cannot
be interpreted disjunctively and the words 'whosoever makes,
publishes or circulates' are supplemented to each other. The
intention of the legislature in providing two different sections of
the same subject vide single amending act would show that they
cover two different fields of same colour. [Para 66][275-H;
276-A-B]
3. Clauses (a) and (b) to sub-section (1) to Section 153A of
the Penal Code use the words 'promotes' and 'likely' respectively.
Similarly, Section 295-A uses the word 'attempts' and sub-section
(2) to Section 505 uses the words 'create or promote'. Word
'likely' as explained, in opinion of this Court, convey the meaning,
that the chance of the event occurring should be real and not
fanciful or remote. Instigation must necessarily and specifically
be suggestive of the consequences. Sufficient certainty to incite
the consequences must be capable of being spelt out to be
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incitement. Further, it is for the prosecution to show and establish
that the standard has been breached by leading evidence, which
can be both oral and documentary. 'Promote' does not imply mere
describing and narrating a fact, or giving opinion criticising the
point of view or actions of another person - it requires that the
speaker should actively incite the audience to cause public
disorder. This active incitement can be gauged by the content of
the speech, the context and surrounding circumstances, and the
intent of the speaker. However, in case the speaker is merely
pointing out why a certain person or group is behaving in a
particular manner, what are their demands and their point of view,
or when the speaker interviews such person or group, it would
be a passive delivery of facts and opinions which may not amount
to promotion. [Para 67][276-C-H; 277-A-B]
4. An attempt is short of actual causation of crime and more
than mere preparation. In the context of 'hate speech', including
the offences related to promoting disharmony or feelings of
enmity, hatred or ill-will, and insulting the religion or the religious
beliefs, it would certainly require the actual utterance of words
or something more than thought which would constitute the
content. Without actual utterance etc. it would be mere thought,
and thoughts without overt act is not punishable. In the case of
'publication', again a mere thought would not be actionable, albeit
whether or not there is an attempt to 'publish' would depend on
facts. The impugned act should be more than mere preparation
and reasonably proximate to the consummation of the offence,
which has been interrupted. The question of intent would be
relevant. On the question of the harm's element, same test and
principle, as applicable in the case of 'likely' would apply, except
for the fact that for intervening reasons or grounds public disorder
or violence may not have taken place. [Para 68][277-G-H;
278-A-C]
5. Having interpreted the relevant provisions, this Court
is conscious of the fact that primacy has been given to the precept
of 'interest of public order' and by relying upon 'imminent lawless
action' principle, not given due weightage to the long-term impact
of 'hate' speech as a propaganda on both the targeted and nontargeted groups. This is not to undermine the concept of dignity,
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which is the fundamental foundation on the basis of which the
citizens must interact between themselves and with the State.
Further, a 'hate speech' meeting the criteria of 'clear and present
danger' or 'imminent lawless action' would necessarily have longterm negative effect. Lastly, this Court is dealing with penal or
criminal action and, therefore, have to balance the right to express
and speak with retaliatory criminal proceedings. This Court is to
also prevent abuse and check misuse. It is not just penal threat
alone which can achieve and ensure equality between groups.
Dignity of citizens of all castes, creed, religion and region is best
protected by the fellow citizens belonging to non-targeted groups
and even targeted groups. [Para 69][278-C-H]
6. Acronym FIR, or the First Information Report, is neither
defined in the Criminal Code nor is used therein, albeit it refers
to the information relating to the commission of a cognisable
offence. This information, if given orally to an officer in-charge of
the police station, is mandated to be reduced in writing.
Information to be recorded in writing need not be necessarily by
an eye-witness, and hence, cannot be rejected merely because it
is hearsay. Section 154 does not mandate nor is this requirement
manifest from other provisions of the Criminal Code. Further,
FIR is not meant to be a detailed document containing chronicle
of all intricate and minute details. [Para 73][280-E-F]
7. This Court respectfully agrees with the ratio laid down
in Arnab Ranjan Goswami. Ordinarily, this 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. [Para 77][284-F]
8. This Court has already reproduced relevant portions of
the transcript of the debate anchored by the petitioner. It is
apparent that 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'
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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 police investigation. The fact, that 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][284-G-H; 285-A-B]
9. It is not the appropriate at this stage to quash the FIRs
and thus stall the investigation into all the relevant aspects.
However, observations of this Court on the factual matrix of the
present case in this decision should not in any manner influence
the investigation by the police who shall 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. Same
would be the position in case 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 15.06.2020. Subject to the petitioner
cooperating in the investigation, this Court directs that no
coercive steps for arrest of the petitioner need be taken by the
police during investigation. In case and if 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][285-C-F]
10. The decisions of this Court in Bhajan Lal, P.P. Sharma
and the earlier decision in R.P. Kapur which held that the High
Court, in exercise of inherent jurisdiction, can quash proceedings
in a proper case either to prevent abuse of process or otherwise
to secure ends of justice. Application of the principles discussed
in these cases depends on factual matrix of each case. Strict and
restricted as the requirements are, they are at this stage not
satisfied in the present case. [Para 80][285-F; 286-B]
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11. The second prayer of the petitioner viz. multiplicity of
FIRs being registered in the States of Rajasthan, Maharashtra,
Telangana, and Madhya Pradesh (now transferred to Uttar
Pradesh) relating to the same broadcast. Both the sides agreed
that the issue is covered by the decision of this Court in T.T.
Antony which has been followed in Arnab Ranjan Goswami's case.
Also, in Babubhai v. State of Gujarat and Others wherein the test
to determine sameness of the FIRs has been elucidated as when
the subject matter of the FIRs is the same incident, same
occurrence or are in regard to incidents which are two or more
parts of the same transaction. If the answer to the question is
affirmative, then the second FIR need not be proceeded with.
[Para 81][286-D; 290-B-C]
12. In the present case, this Court would like to follow the
ratio in T.T. Antony which is to the effect that the subsequent
FIRs would be treated as statements under Section 162 of the
Criminal Code. [Para 82][290-D-E]
13. This Court would also like to clarify that Section 179 of
the Criminal Code permits prosecution of cases in the court within
whose local jurisdiction the offence has been committed or
consequences have ensued. Section 186 of the Criminal Code
relates to cases where two separate charge-sheets have been
filed on the basis of separate FIRs and postulates that the
prosecution would proceed where the first charge-sheet has been
filed on the basis of 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 Court has clarified the aforesaid
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position to avoid any doubt or debate on the said aspect.
[Para 84][292-A-D]
14. In view of the findings, this Court accepts the prayer
made in the last amended writ petition and transfer all FIRs listed
to police station Dargah, Ajmer, Rajasthan, where the first FIR
was registered. This Court does not find any 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 statement under Section
162 of the Criminal Code and be proceeded with. [Para 85]
[292-E-F]
15. This Court declines and reject the prayer of the
petitioner for quashing of the FIRs but have granted interim
protection to the petitioner against arrest subject to his joining
and cooperating in investigation till completion of the
investigation. However, the prayer of the petitioner for transfer
of all pending FIRs in relation to and arising out of the telecast/
episode to P.S. Dargah, Ajmer, where the first FIR was registered
is accepted. On the third prayer, this Court has asked the
concerned states to examine the threat perception of the
petitioner and family members and take appropriate steps as may
be necessary. [Para 87][293-A-C]
Ramji Lal Modi v. State of U.P. AIR 1957 SC 620; Kedar
Nath Singh v. State of Bihar, (1970) 2 SCC 780 : [1971]
2 SCR 446; Madhu Limaye v. Sub-Divisional
Magistrate, Monghyr and Others,(1970) 3 SCC 746 :
[1971] 2 SCR 711 - followed.
Shreya Singhal v. Union of India (2015) 5 SCC 1 :
[2015] 5 SCR 963; Anuradha Bhasin v. Union of India
and Others (2020) 3 SCC 637; Modern Dental College
and Research Centre and Others v. State of Madhya
Pradesh and Others (2016) 7 SCC 353 : [2016] 3 SCR
579; Maneka Gandhi v. Union of India (1978) 1 SCC
248 : [1978] 2 SCR 621; State v. Mohd. Yakub (1980)
3 SCC 57; Lalita Kumari v. Government of Uttar
Pradesh and Others (2014) 2 SCC 1; State of H.P. v.
Pirthi Chand and Another, (1996) 2 SCC 37 : [1995] 6
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P.K. Chakravarty v. The King AIR 1926 Cal.1133 -
approved.
Her Majesty the Queen v. James Keegstra, (1990) 3
SCR 697; Balwant Singh and Another v. State of Punjab
(1995) 3 SCC 214 : [1995] 2 SCR 411; Bilal Ahmed
Kaloo v. State of A.P., (1997) 7 SCC 431 : [1997] 3
Supp. SCR 327; Brij Bhushan and Another v. State of
Delhi, AIR 1950 SC 129; Lalai Singh Yadav v. State of
Uttar Pradesh, AIR 1962 SC 955; Mahendra Singh
Dhoni v. Yerraguntla Shyamsundar and Another, (2014)
2 SCC 1 : [2013] 14 SCR 713; Manzar Sayeed Khan
v. State of Maharashtra and Another, (2017) 7 SCC
760 : [2017] 3 SCR 763; Queen-Empress v. Bal
Gangadhar Tilak, (2014) 11 SCC 477 : [2014] 4 SCR
446; Ramesh S/o Chhotalal Dalal v. Union of India and
Others, (1988) 1 SCC 668 : [1988] 2 SCR 1011;
Romesh Thappar v. State of Madras, AIR 1950 SC 12;
State of Bihar and Another v. P.P. Sharma, IAS and
Another, 1992 Supp. (1) SCC 222; State of Haryana v.
Bhajan Lal, 1991 Supp (1) SCC 335; State of U.P. v.
O.P. Sharma, (1996) 7 SCC 705 : [1996] 2 SCR 236;
Superintendent of Police, CBI and Others v. Tapan
Kumar Singh, (2003) 6 SCC 175: [2003] 3 SCR 485;
Superintendent, Central Prison, Fatehgarh and Another
v. Dr. Ram Manohar Lohia, AIR 1960 SC 633; Virendra/
K.Narendra v. State of Punjab and Another AIR 1957
SC 896; State of Orissa v. Saroj Kumar Sahoo (2005)
13 SCC 540 : [2005] 5 Suppl. SCR 548; Chintaman
Rao v. State of Madhya Pradesh, AIR 1951 SC 118;
State of Madras v. V.G. Row, AIR 1952 SC 196; N.B.
Khare (Dr.) v. State of Delhi AIR 1950 SC 211;
Mohammed Faruk v. State of Madhya Pradesh and
Others (1969) 1 SCC 853 : [1970] 1 SCR 156; Arun
Ghosh v. State of West Bengal (1970) 1 SCC 98 : [1979]
1 SCR 955; Justice K. S. Puttasamy v. Union of India
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(2017) 10 SCC 1 : [2017] 10 SCR 569; Subramanian
Swamy v. Union of India and Others (2016) 7 SCC 221
: [2016] 3 SCR 865; Rustom Cowasjee Cooper v. Union
of India (1970) 2 SCC 298 : [1971] 1 SCR 512; Bennett
Coleman & Co. v. Union of India (1972) 2 SCC 788 :
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AIR 1950 SC; Charu Khurana and Others v. Union of
India and Others (2015) 1 SCC; India Young Lawyers
Association and Others (Sabarimala Temple, In RE.) v.
State of Kerala and Others (2019) 11 SCC 1; Ram
Jethmalani and Others v. Union of India and Others
(2011) 8 SCC 1 : [2011] 8 SCR 725; Noise Pollution
(V), In Re. (2005) 5 SCC 733 : [2005] 1 Suppl. SCR
624; Indira Sawhney v. Union of India, (1992) Supp. 3
SCC 217; Amita v. Union of India, (2005) 13 SCC 721;
Ebrahim Suleiman Sait v. M.Mohammed and Another
(1980) 1 SCC 398; Aman Kumar v. State of Haryana
(2004) 4 SCC 379; Dharma Rama Bhagare v. State of
Maharashtra,(1973) 1 SCC 537; Babubhai v. State of
Gujarat and Others, (2010) 12 SCC 254; Prakash
Kumar Alias Prakash Bhutto v. State of Gujarat, (2005)
2 SCC 409:[2005] 1 SCR 408 - referred to.
Bhagwati Charan Shukla s/o. Ravishankar Shukla v.
Provincial Government, C.P. & Berar, AIR 1947 Nagpur
1; Devi Sharan Sharma v. Emperor, AIR 1927 Lah 594;
Emperor v. Sadashiv Narayan Bhalerao, AIR 1947 PC
82; Gopal Vinayak Godse v. Union of India, AIR 1971
Bom 56; Pravasi Bhalai Sangathan v. Union of India
and Others, AIR 1926 Calcutta 1133; R. v. Zundel, 21
R. P. Kapur v. State of Punjab, ILR (1898) 22 Bombay
112; Veeda Menez v. Yusuf Khan and Another, 1966
SCR 123; Neelam Mahajan v. Commissioner of Police
and Others, 1993 (27) DRJ 357; Lalai Singh Yadav
and Another v. State of Uttar Pradesh 1971 Cri LJ 1773
(FB) (Allahabad); P.K. Chakravarty v. The King, AIR
1926 Cal. 1133 - referred to.
Niharendu Dutt Majumdar v. The King-Emperor, 1942
FCR 38; K.A. Abbas v. Union of India and Another
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1942 FCR 38;
Saskatchewan (Human Rights
Commission) v. Whatcott, [2013] 1 SCR 467; Canada
(Human Rights Commission) v. Taylor, (1990) 3 SCR
892; Pat Eatock v. Andrew Bolt (2011) FCA 1103; Mr.
Justice Holmes in Schenek v. United States, 249 U.S.
47 (52); Brandenburg v. Ohio 395 U.S. 444 (1969);
Dennis v. United States 341 U.S. 494 O'Neill at (160)
- (161) and Hill v. Church of Scientology of Toronto,
(1995) 2 S.C.R. 1130 (117) and (120); Beauharnais v.
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(1979) 27 ALR 380 - referred to.
Hate Speech in Constitutional Jurisprudence: A
Comparative Analysis' by Michel Rosenfeld, 24 Cordozo
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'Hate Speech in
Constitutional Jurisprudence: A Comparative Analysis'
by Michel Rosenfeld, 24 Cordozo L. Rev. 1523 20022003; Andrew F. Sellers, Defining Hate Speech,
published by Berkman Klein Center for Internet &
Society at Harvard University; Words that Wound: A
tort Action for Racial Insults, Epithets, and NameCalling', 17 Harv. C.R.- C.L.L.rev. 133 (1982);'Public
Response to Racist Speech: Considering the Victim's
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the Development of Liberal Virtues: An Examination of
the Controversies Involving Flag Burning and Hate
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in Constitutional Jurisprudence: A Comparative
Analysis by Michel Rosenfeld, 24 Cardozo L. Rev. 1523
2002-2003; Myra Mrx Ferree, William A. Gamson,
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the Public Sphere in Modern Democracies,' published
in THEORY AND SOCIETY, Vol. 31, No. 3 (June, 2002),
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of Philosophy, Toleration by Andrew Fiala, ISSN 21610002; Marjoka Van Doorn, the Nature of Tolerance
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and the Social Circumstances in Which it
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1995(2) SCR 411
referred to
Para 8
[1997] 3 Supp. SCR 327
referred to
Para 8
[1990] 3 SCR 697
referred to
Para 8
[1971] 2 SCR 446
followed
Para 8
[2013] 14 SCR 713
referred to
Para 8
[2017] 3 SCR 763
referred to
Para 8
[2014] 4 SCR 446
referred to
Para 8
[1988] 2 SCR 1011
referred to
Para 8
[2015] 5 SCR 963
relied on
Para 8
[1995] 6 Suppl. SCR 29
relied on
Para 8
[1996] 2 SCR 236
referred to
Para 8
[2003] 3 SCR 485
referred to
Para 8
[2001] 3 SCR 942
relied on
Para 8
[2005] 5 Suppl. SCR 548
 referred to
Para 10
[1971] 2 SCR 711
followed
Para 36
[1970] 1 SCR 156
referred to
Para 38
[1979] 1 SCR 955
referred to
Para 39
[2016] 3 SCR 579
relied on
Para 41
[2017] 10 SCR 569
referred to
Para 41
[2016] 3 SCR 865
referred to
Para 42
[1978] 2 SCR 621
relied on
Para 42
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[1971] 1 SCR 512
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Para 42
[1973] 2 SCR 757
referred to
Para 42
[2005] 1 Suppl. SCR 624
referred to
Para 43
CRIMINAL ORIGINAL JURISDICTION : Writ Petition
(Criminal) No. 160 Of 2020
(Under Article 32 of The Constitution of India)
Tushar Mehta, S.G., S.V. Raju, ASG, Vinod Diwakar, AAG, Sidharth
Luthra, Dr. Manish Singhvi, Sushil Kumar Jain, Sr. Advs., Vivek Jain,
Mrinal Bharti, Samarth Krishna Luthra, Ms. Suchitra Kumbhat, Ms.
Shubhangni Jain, Pankaj Singhal, Manish Shekari, Nitin Sharma, Ms.
Pallavi Garg, Kanu Agrawal, B.V. Balram Das, Sachin Patil, Rahul
Chitnis, Geo Joseph, D. K. Devesh, Apurv Singhvi, S. Udaya Kumar
Sagar, Ms. Swati Bhardwaj, Sarvesh Singh Baghel, B.N. Dubey, Ms.
Shivranjani Ralawata, Puneet Jain, Harsh Jain, Harshit Khanduja, Ms.
Christi Jain, Aniruddh Joshi, Umang Shankar, Rizwan Merchant, S.
Hariharan, Ms. Jaikriti S. Jadeja, Ms. Priya Puri, Shubail Farook, Faisal
Farook, Kshitij Kumar, Ranjay Dubey, Ibad Mustaq, Ms. Akanksha Rai,
Fuzail Ahmad Ayyubi, Ejaaz N. Shaikh, Vatsalya Vigya, Shakil Ahmed
Syed, Mohd. Parvez Dabas, Uzmi Jameel Husain, Daanish Ahmed Syed,
Prem Chandra, Rameshwar Prasad Goyal, Advs. for the appearing
parties.
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 15th 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
1 The Places of Worship (Special Provisions) Act, 1991.
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and provides for maintenance of the religious character of places of
worship as it existed on 15th 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.