We are not a Taliban state and rule of law is the sacrosanct governing principle in our plural and multi cultural society, a Delhi court said on Monday while dismissing the anticipatory bail plea of Pinky Chaudhary, one of the accused in the Jantar Mantar hate speech incident.
Additional Sessions Judge Anil Antil further while dismissing the bail plea of Bhupinder Tomar alias Pinky Chaudhary said,
"While the whole of India is celebrating Azadi Ki Amrut Mahotsav, there are some minds still chained with intolerant and self-centric beliefs."
The order also highlighted that there was no gainsaying that the right to freedom of speech is a fundamental right, one of the most cherished natural right enshrined in the Constitution under Article 19(1)(a).
However, the Court emphasised that it was neither an unfettered nor an absolute right.
"Nor can it be extended to transgress upon fundamental right of other people; nor can it be expanded to the acts pre-judicial to maintenance of peace, harmony and public order; nor can it be permitted to invade and erode the sexual fabric of our society. In the garb of libertarian concept of free speech, the applicant/accused cannot be allowed to trample the Constitutional principles, which promote inclusiveness and common brotherhood," the order stated.
The accused was allegedly part of a rally that took place on August 8 in Delhi under the Bharat Jodo Movement against colonial-era laws in the country where anti-Muslim slogans were said to be raised.
The rally was organised by former BJP spokesperson and Supreme Court lawyer, Ashwini Kumar Upadhyay.
A video had later emerged from the site of rally in which few people were seen calling for killing of Muslims.
Upadhyay along with 5 others were later arrested based on the video.
Upadhyay, however, denied any links to slogan raising stating that he had left the venue at 12 in the afternoon while slogans were raised by unknown miscreants at 5 pm.
The Court found that Tomar's complicity in the alleged crime was prima facie apparent from the material placed before the court. The accusations were also stated to be serious and the offence as "severe".
"History is not immune where such incidents have flared communal tensions leading to riots and causing loss to life and property of general public," the order underlined.
The Court also observed that the investigation was at a nascent stage; persons acquainted with the facts of the case are yet to be identified and/or examined; entire incriminating material is yet to be seized; other persons involved in the incident are absconding and evading the process of law.
"Additionally, the applicant is the President of Hindu Raksha Dal; taking note of the tone and tenor of the speech and the threatening words used therein via the alleged interview, and analysed in the back drop of his stature and influence exerted, there is a strong possibility, if released on bail, at this stage, the applicant shall hamper the investigation, and shall influence and/or threaten the witnesses," the Court noted.
The Court also observed that the actual violence is not a sine qua non to attract the offence under Section 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) of the Indian Penal Code.
“Custodial interrogation shall serve the best interest of justice to unearth the entire conspiracy and the persons involved therein, I am not inclined to grant him pre-arrest protection," it held.
Seeking the relief, Tomar's counsel Vishnu Shankar Jain had argued that he was a social worker, and in a democratic country, it is a fundamental right of every citizen to raise demands of public good before government authorities for the enactment of laws to bring uniformity in the society.
The Court was informed that the scope of freedom of speech and expression guaranteed under Article 19(1)(a) of The Constitution of India, the applicant decided to join the celebrations of the "Quit India Movement" on Jantar Mantar on August 8, 2021, to raise the demands of public for enactment of some common laws.
It was also argued that all the alleged offences except offence punishable under Section 153-A IPC are bailable in nature and the only question for consideration before the court is whether a case is made out against the applicant under section 153-A IPC on the basis of material gathered by the prosecution so far.
Additional Public Prosecutor SK Kain opposed the bail plea, arguing that there was accused's video clipping and interview on a YouTube channel demonstrating hateful slogans against a particular religion.
The Court after considering facts and circumstance rejected the plea.