The Delhi High Court on Tuesday refused to stay the proceedings against Bharatiya Janata Party leader and Delhi Cabinet Minister Kapil Mishra, ongoing in a trial court, over his controversial remarks made during the Delhi Assembly elections in 2020.
Mishra had allegedly posted tweets accusing the Aam Aadmi Party (AAP) and Congress of creating a ‘mini Pakistan’ at Shaheen Bagh. He further remarked that the then Assembly polls in Delhi would be a contest between India and Pakistan.
The single judge Bench of Justice Ravinder Dudeja directed the Delhi Police to file a reply on Mishra’s petition within four weeks and listed the matter for further hearing on May 19.
Appearing for Mishra, Senior Advocate Mahesh Jethmalani contended that there was no reference in Mishra’s tweets about any two communities or groups, which was a prerequisite to file an FIR under Section 125 of the Representation of the People Act, 1951.
The Senior Counsel submitted that in order to invoke the offence (of promoting enmity or hatred between different classes of citizens in connection with an election), reference to two communities, groups or religious communities was essential, which was not done in the present case.
Mishra’s tweets only meant that the contest would be between those who opposing the Citizenship Amendment Act (CAA) and those were not, without any reference to any religious group, in particular Hindus and Muslims, he pointed out.
Noting that Section 125 RP Act was non-cognisable, Jethmalani said the FIR could not have been registered without following the due procedure under Section 155(2) of CrPC.
Neither the alleged tweets intended to promote the feeling of enmity or hatred between different classes, nor the statements led to any such situation being created during the relevant period, he added.
The Senior Counsel argued that Mishra’s tweets, posted during the elections, targeted the anti-social and anti-national elements intending to spoil the atmosphere under the guise of the anti-CAA movement.
The Counsel representing the Delhi Police contended that there have been concurrent findings of two courts on the issue. He said the arguments raised by Jethmalani could be taken up at the stage of framing of charges.
There was no mention of CAA in Mishra’s tweets, which were intended to promote hatred against two religious communities, claimed the Counsel, asserting that Section 125 of the RP Act was cognisable.
Senior Advocate Jethmalani requested the Bench to stay the proceedings on the grounds that the trial court may proceed with framing of charges.
The High Court, however, refused to stay the trial on the grounds that in case a favourable finding came tomorrow, all proceedings would go.
The Bench assured that Mishra would not be prejudiced due to the continuation of the trial.
The High Court further directed the trial court that in case it decided to frame charges against the accused, it must make an independent assessment, based on the submissions made by the respective sides, and not get influenced by the observations of the sessions court made on the merits of the case.
On March 7, Special Judge Jitendra Singh of the Rouse Avenue Courts dismissed the revision plea filed by Mishra challenging the June 2024 order passed by an Additional Chief Metropolitan Magistrate in a case related to electoral malpractice.
Mishra was charged under Section 125 of the Representation of People Act, 1951, for promoting enmity between classes to gain an advantage during the Delhi Legislative Assembly Elections.
Special Judge Singh observed that the alleged statements made by the revisionist appeared to be a brazen attempt to promote enmity on the grounds of religion by way of indirectly referring to a ‘country,’ which unfortunately in common parlance, has often been used to denote the members of a particular religion.
The word ‘Pakistan’ was very ‘skillfully’ weaved by the revisionist in his alleged statements to spew hatred, careless to communal polarisation that may ensue in the election campaign, only to garner votes, it noted.
The Rouse Avenue Court further condemned the trend of making communally charged speeches during elections to garner votes.
This was a sad indication of colonial practice of ‘divide and rule’ still being practiced in India, observed the Special Judge.
He further rejected Mishra’s argument that a comment regarding a country would not constitute an offence under Section 125 of the RP Act.
Calling the argument preposterous and outrightly untenable, the Court said the implicit reference underlying the particular ‘country’ in the alleged statement was an unmistaken innuendo to persons of a particular ‘religious community’, apparent to generate enmity amongst religious communities. This could be effortlessly understood even by a layman, let alone by a reasonable man,” it added.
It further rejected the submission made by Mishra that since the offence under Section 125 of RP Act was punishable with imprisonment only up to three years, the trial court was wrong to treat it as a cognisable offence.
The Rouse Avenue Court held that the offence under Section 125 of RP Act was cognisable (serious crimes for which prior permission from a Magistrate was not required for police investigation and in which cases arrests may be made without a warrant).
The Special Judge mentioned a case, in which the Supreme Court treated an offence under the Copyright Act, 1957 which too was punishable with three years of imprisonment, as a cognisable offence.
Drawing a parallel, the Special Court held that Section 125 of the RP Act was also a cognisable offence, since it had a similar imprisonment term prescribed as punishment.
Mishra moved the High Court against this order.