Calcutta High Court quashes summons against Shashi Tharoor for "BJP will make India a Hindu-Pakistan" comment

The Calcutta High Court on Wednesday quashed the criminal process issued a Calcutta Magistrate against Congress leader Shashi Tharoor for his statement that "if BJP is voted to power, it will tear the Indian Constitution and make India a Hindu-Pakistan" [Dr Shashi Tharoor vs State of West Bengal]..Single-judge Justice Shampa Dutt (Paul) noted that the Magistrate while issuing criminal process had not complied with Section 202 of the Criminal Procedure Code (CrPC), which provides for postponement of issuance of process and holding an inquiry to decide whether there is sufficient ground for proceeding with the case.The Court noted that the process was issued under Section 200 of the CrPC which allows the Magistrate to examine the complainant and only those witnesses who are present before the court."The order under revision is under Section 200 and not 202, even though the petitioner admittedly does not have a local address, within the jurisdiction of the Court issuing process. In the present case, admittedly only the complaint has been examined. No witnesses were examined in this case," the bench noted. Therefore, it quashed the process issued on April 13, 2018. However, it ordered the Magistrate to hear the matter afresh by duly complying with the provision of Section 202(2) of the CrPC. While doing so, the Magistrate shall also consider the provision of Section 197 of CrPC (which disallows prosecution of public servants in absence of prior sanction) and pass necessary orders in accordance with law, the Court made it clear..As per the complainant, on July 11, 2018, he came across a 'shocking news' on many different news channels that Tharoor has made a statement in public, wherein he allegedly stated, "If citizens of India vote for a particular political party (BJP) in the ensuing General Election 2019, in such event that particular political party will tear up the Constitution of India and write a new one, which will enshrine the principles of Hindu Rashtra that will remove equality from the minorities. It will create a Hindu Pakistan and that is not what Mahatma Gandhi, Jawaharlal Nehru, Maulana Azad, Sardar Patel and the great heroes of freedom struggle thought.”Based on this, a complainant was filed under Section 200 of the CrPC before the Additional Chief Metropolitan Magistrate, Calcutta.The Magistrate took cognizance of the complaint and issued criminal process against Tharoor for offences under Sections 153A (hate speech) and 295A (hurting religious sentiments) of the Indian Penal Code along with relevant provisions of the Prevention of Insults to National Honour Act, 1971.Tharoor moved the High Court contending that the Magistrate issued the process issued summons without complying the mandatory requirement of Section 202 of the CrPC which is necessary since he is residing beyond the territorial jurisdiction of the court. The provision under Section 202 were amended in 2005 making it mandatory to postpone the issue of process when the accused resides in an area beyond the territorial jurisdiction of the court, he said.He submitted that in such cases, it is an obligatory duty of the Magistrate to enquire into the case himself or to direct investigation to be made by police officer or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuance of summons in such casesJustice Dutt noted that the allegations in the written complaint in this case was regarding certain comments allegedly made by Tharoor against a rival political party, and his views regarding the party’s alleged acts and conduct. The said statements, the judge emphasised, are the his view as a political opponent.Further, the Court noted that the Magistrate order was passed under Section 200 CrPC and not Section 202 CrPC, even though Tharoor admittedly does not have a local address, within the jurisdiction of the Court issuing process.Hence, the Magistrate order was set aside with a direction to consider the matter afresh..Advocate Mrityunjoy Chatterjee appeared for the Petitioner.None represented the State or the Complainant..[Read Order]