2015 Subramanian Swamy hate speech case: Gauhati High Court quashes proceedings

The Gauhati High Court today quashed all orders of lower courts in relation to an alleged hate speech case registered against Dr Subramanian Swamy in 2015 (Dr Subramanian Swamy v. State of Assam)..Justice Manish Choudhury passed the order in a petition filed by the former Law Minister seeking to all quash all criminal proceedings connected with the case..Two lower courts had been involved in hearing various stages of the matter. In its judgment, the Court quashed these orders, which called for issuance of criminal proceedings and a non-bailable warrant against Swamy. Further, it ruled:"As the complaint does not make out any offence either under Section 153, IPC or under Section 298, IPC the criminal proceeding to that extent is also quashed. As the criminal prosecution against the petitioner for the offences under Section 153A and Section 295A of the Penal Code has been launched without any sanction under Section 196[1] of the Code, such criminal prosecution is held to be illegal. The continuance of the criminal proceeding ... would amount to abuse of the process of the Court.".The complaint against Swamy was filed before the Chief Judicial Magistrate at Karimganj on March 17, 2015. In the written complaint, it was stated that the accused was a influential leader of the Bharatiya Janata Party (BJP), and religiously intolerant.It was alleged that on March 14 that year, Dr Swamy, while interacting with the press, made some "derogatory, unconstitutional and provocative" remarks against Islam which was published in different media. These comments included: "...that mosque is not a place of worship for Muslim people" and that "...if mosques were demolished the same could not be a ground to object...".The complaint alleged that Dr Swamy had "attempted to hurt the feelings of the people of Muslim religion. Such provocative remarks had disturbed the peaceful religious scenario in the State of Assam" and had "given rise to serious apprehension in the minds of the people from Muslim faith residing in the State.".Dr Swamy, appearing before the High Court in person, essentially challenged the criminal prosecution launched against him in its entirety.He submitted that in the first part of the overall proceedings in the case, the Additional Chief Judicial Magistrate at 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).He argued 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.It was further pointed 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 the Union or State government, which was absent.In any case, the offences as charged with are not made out, and the manner in which the non-bailable arrest warrant was issued by the Additional Chief Judicial Magistrate at Karimganj against him is unsustainable in law, Dr Swamy argued. Besides, since the initial order of taking cognisance and issuance of process "is bad and illegal, all other consequential orders are also liable to be set aside and quashed.".Pursuant to an order of the Supreme Court in the matter where it had stayed the execution of the non-bailable warrant, the Gauhati High Court had earlier directed a stay on the lower courts' orders and proceedings.The Senior Government Advocate appearing for the State of Assam submitted that there appears to be no material on record indicating sanction of the government.The senior counsel appearing for the original complainant said that given the nature of the comments, even if the bar contained in the Code is taken into consideration for this complaint, it is not sufficient to quash the entire criminal proceedings..After hearing the parties, the High Court observed that Section 202 casts an obligation on the magistrate to conduct an inquiry or direct investigation before the issuance of process. In this light, it held,"...this Court is of the unhesitant view that due to failure on the part of the learned Magistrate to follow the mandatory procedure as envisaged in Section 202 of the Code the order dated 18.03.2015 issuing summons to the accused had suffered from infirmity and the same is liable to be set aside and quashed."Given that the complainant was not a public servant and hence not exempt from getting sanction before prosecution in such cases, the Court ruled that the said sanction "could not have been dispensed with by the learned 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.".While noting that procedural errors cannot be the basis for disposing of the complaint, the offences must still be made out, the Court observed.The Court noted 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 complaint did not allege.Observing that the complainant had not himself heard the utterances alleged, the Court ruled,"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 entering himself into the witness box to depose in order to support his such accusations...As no offence under Section 298 of the Penal Code is made out, the criminal proceeding against the accused in so far as the said offence is concerned, is liable to be set aside and quashed.".It further held,"...the learned Magistrate could not have taken judicial notice of the facts stated in those newspaper reports without any other supporting materials. In the said fact situation, it is apparent that there was no legal evidence before the learned trial court when it took cognizance on the complaint...continuance of the criminal proceeding would amount to abuse of the process of the Court," the single-judge observed..The Court accordingly set aside and quashed all criminal proceedings in the matter, and merged today's order with its earlier one staying the proceedings..Dr Swamy was assisted by Advocates Satya Sabharwal, BK Mahajan and R Chakroborty. Advocates K Goswami and M Barman represented the Assam government. The original complainant was represented by Senior Advocate HRA Choudhury and Advocate A Ahmed..[Read judgment]