The Gauhati High High Court has quashed all orders of the lower court in a case against Rajya Sabha MP Subramanian Swamy for an alleged hate speech in Assam in 2015.
Justice Manish Choudhury in an order passed on Thursday quashed all orders of the lower court for criminal proceedings against Swamy, who had filed a petition seeking the same.
The judge observed that as the the complaint did not make out any offence either under Section 153, IPC (rioting) or under Section 298, IPC (wounding religious sentiments) the criminal proceeding is quashed.
"As the criminal prosecution against the petitioner for the offences under Section 153A (promoting disharmony) and Section 295A (outraging religious feelings) of the Penal Code has been launched without any sanction, such criminal prosecution is held to be illegal. The continuance of the criminal proceeding ... would amount to abuse of the process of the Court," he ruled.
The case against Swamy was filed before the chief judicial magistrate at Karimganj on March 17, 2015 alleging that he had made some "derogatory, unconstitutional and provocative" statements against a particular religion while interacting with the media in Guwahati on March 14, 2015.
Subsequently, the additional chief judicial magistrate of Karimganj took cognisance of the complaint and issued summons to Swamy on March 18 that year and subsequently a non-bailable warrant of arrest was issued against him on June 1, 2015.
Swamy had then filed a writ petition before the Gauhati High Court challenging the criminal proceedings, issuance of summons and the non bailable warrant of arrest by the lower court and argued the case in person.
He argued that in the first part of the overall proceedings in the case, the additional chief judicial magistrate of Karimganj while issuing process as the trial court against him had completely ignored the provisions of Section 202 of the Code of Criminal Procedure (postponement of issue of process).
Swamy pointed out that being a resident of a place not in the jurisdiction of the trial court, the magistrate concerned could not have issued the process without first complying with the mandatory procedure under Section 202.
Further, the trial court after taking cognisance of the offences, did not examine the complainant on oath.
He further argued out that no cognisance of offences punishable under Sections 153A (promoting enmity between different groups) and 295A (deliberate and malicious acts intended to outrage religious feelings) of the Indian Penal Code (IPC) can be taken by a court without prior sanction of the union or state government, which was absent in this case.
The senior government counsel submitted that there appeared to be no material on record indicating sanction of the state government.
After hearing the parties, Justice Choudhury observed that Section 202 casts an obligation on the magistrate to conduct an inquiry or direct investigation before the issuance of process and as the complainant was not a public servant, he was not exempt from getting sanction before prosecution in such a case.
The judge ruled that the sanction "could not have been dispensed with by the magistrate before issuing the process against the accused. On this ground also, the impugned order dated 18.03.2015 has suffered from infirmity and is liable to be set aside and quashed."
He further observed that for an offence under Section 153 of the IPC to apply, the act has to be done ''malignantly or wantonly" with an intention of causing riots, which the complainant did not allege and also had not heard the utterances himself.
"The complainant had only taken the help of newspaper reports to allege that the accused person had made the alleged comments before the media persons, that too, without himself entering the witness box to depose in support of such accusations...As no offence under Section 298 of the Penal Code is made out, the criminal proceeding against the accused is liable to be set aside and quashed'', the ruling stated.
The Court accordingly set aside and quashed all criminal proceedings in the matter, and merged it with its earlier order staying the proceedings.
Swamy was assisted by advocates Satya Sabharwal, B K Mahajan and R Chakroborty, while K Goswami and M Barman represented the state government. The original complainant was represented by H R A Choudhury and A Ahmed.
