On 27 September, the Delhi Police informed a court in Saket that the complaints filed regarding communal speeches by Dasna Devi temple priest Yati Narsinghanand Saraswati, and Haryana BJP spokesperson Suraj Pal Amu, should be transferred to relevant police stations in Aligarh, Uttar Pradesh and Nuh, Haryana.
In Narsinghanand's speech, made at a press conference at Aligarh – not to be confused with a separate communal speech at the Press Club of India in April 2021 – he had called for Aligarh Muslim University to be bombed, and for Jamia Millia Islamia University in Delhi to be 'finished'.
Amu, who as leader of the Karni Sena had put a bounty on actress Deepika Padukone's head, spoke at two mahapanchayats in Haryana, where he endorsed the recent lynching of a Muslim man, and said "If you want to make history in the country, if you don’t want to become history, neither will Taimur be born, nor will Aurangzeb, Babur, or Humayun be born. We are 100 crore, and they 20 crore."
A day after the second mahapanchayat, Amu had also put up a post on social media site Twitter, asking how long Hindus could be expected to tolerate conversion and 'love jihad'.
Complaints against these speeches had been filed in Delhi courts through advocates Sarim Naved, Kamran Javed and Anshu Davar, based on the refusal of the Jamia Nagar Police station SHO to accept the complaints for registration of FIRs against the two Hindu right-wing leaders.
According to the action taken reports filed by the Delhi Police with the court, they have no jurisdiction over the areas where the speeches were made, and so couldn't investigate them.
But are the Delhi Police correct? Can police forces in one state of the country not file FIRs against people for actions in another state? And is such 'restraint' followed by other police forces?
DOES GEOGRAPHICAL LOCATION PREVENT INVESTIGATION OF AN OFFENCE?
Technically speaking, the Delhi Police are not barred from investigating a case originating elsewhere in the country.
Indeed, if we look at the wording of Section 4 of the Indian Penal Code, the police in India can investigate an offence committed under the IPC by any Indian citizen even if the act is committed outside India.
Thus, if an Indian citizen commits murder in France, they can still be tried for murder in India (provided of course that they haven't already been tried for the offence in France, as per the principle of double jeopardy).
Within India, the investigation of an offence tends to take place by the police station responsible for the area where the crime occurred. On that count, yes, in the normal course of events, the Narsinghanand speech in question should be investigated in Aligarh, and the Suraj Pal Amu speech in Nuh.
However, the geographic location is not the sole determining factor: it also has to be seen where the consequences of the act in question ensue, as the Supreme Court recognised in the Amish Devgan case in December 2020.
While the apex court did agree to transfer the multiple FIRs filed against News18 journalist Devgan (for his derogatory comments about Pir Hazrat Moinuddin Chishti during one of his shows) to one location, it refused to quash the FIRs filed in places outside of his place of residence and work.
The court said:
"The debate-show hosted by the petitioner was broadcast on a widely viewed television network. The audience, including the complainants, were located in different parts of India and were affected by the utterances of the petitioner; thus, the consequence of the words of the petitioner ensued in different places, including the places of registration of the impugned FIRs."
The legal authority for this proposition, that an FIR can be filed anywhere the consequences ensue, comes from Sections 179 and 156 of the Code of Criminal Procedure.
Section 179 says that a cognizable offence is triable in any court where within whose local jurisdiction such thing has been done or such consequence has ensued.
Section 156 says that the officer in charge of any police station may investigate an offence which can be tried by the court within whose jurisdiction the police station is located.
WHY DELHI POLICE COULD STILL INVESTIGATE THE NARSINGHANAND & AMU SPEECHES
The complaints against Narsinghanand and Suraj Pal Amu are not about simple physical acts done in a particular place. They are about communal speeches which incited hatred between Hindus and Muslims, and suggested that Muslims are not Indians.
Such hate speech has effects outside of where it is made, as it contributes to an atmosphere of discrimination and structural violence against the Muslim community at large, not just leading to incidents of physical violence, but also excluding them from society and politics.
The Supreme Court has recognised the way in which hate speech creates the conditions for this in not just the Amish Devgan case but others too, including its Tehseen Poonawalla judgment in 2018 where it said the government and authorities had a duty to prevent communal violence.
Even if the speeches by the two right-wingers had addressed local issues only, it is easily arguable that the language used by them was of a nature that promoted hatred against Muslims across the country, and therefore had consequences in Delhi as well.
As it happened, the speeches included comments which were not geographically bounded to UP or Haryana, with Narsinghanand specifically calling for attacks on Jamia university in Delhi and Amu saying Muslims should not be allowed to be born across the country. The speeches were either given to the press or recorded and posted on social media, making them available outside the place they were made.
The content of the speeches clearly include language which prima facie amount to offences under Sections 153A (promoting enmity between religious communities), 153B (assertions that a community cannot bear true faith to the Constitution) and 505(2) of the IPC.
At the very least, in these circumstances, the Delhi Police were under an obligation to register an FIR, even if they eventually decided to give the two men a clean chit.
NO OBJECTION CAN BE RAISED ABOUT MULTIPLICITY OF FIRs
One other potential ground for the Delhi Police to argue that they shouldn't have to register FIRs regarding the speeches is that there shouldn't be a multiplicity of FIRs regarding the same offence.
The Supreme Court had held in the TT Antony vs State of Kerala case that the very concept of an FIR – a First Information Report – meant that there could be no second FIR with regard to the same cognizable offence.
This is because the investigation is supposed to cover not just the alleged cognizable offence reported in the FIR, but any other possible offences that arise from the same set of facts. Subsequent FIRs were held by the court there to be an abuse of the statutory power of investigation.
However, when it comes to Narsinghanand and Amu, no FIRs have been registered against them for the speeches in question.
There have been FIRs filed by the UP police against Narsinghanand for his comments about women and by the Delhi Police in connection with his press conference at the Press Club of India, but not for the Aligarh comments.
With regard to Amu, the Haryana police had even said that they were aware of the comments, but had not registered an FIR as no complaint had been filed with them.
It should be noted that the lack of a complaint isn't reason for them to not register an FIR, as, following the Supreme Court's Lalitha Kumari judgment (and subsequent amendments to the Code of Criminal Procedure), the police are obliged to register an FIR the moment they are made aware of any information about a cognizable offence.
The Delhi Police's action taken reports also do not mention any FIR being registered against the two men.
POLICE FORCES HAVE NOT SHOWN SUCH RETICENCE IN OTHER CASES
Police forces across the country have shown no such reticence to file cases just because they took place outside their geographical jurisdiction. The Uttar Pradesh Police recently arrested a man from Chennai for his criticism of the Yogi Adityanath government.
Journalists and activists from across the country, including Rana Ayyub, Saba Naqvi and Muhammad Zubair, were booked by the Ghaziabad Police for posting a video from Loni, Ghaziabad, where a Muslim man claimed to have been thrashed and forced to chant 'Jai Shri Ram' in June 2021, based on the complaint of a local policeman.
FIRs were registered against Republic TV editor in chief Arnab Goswami in Congress-ruled states across the country for comments made about Sonia Gandhi during a show on the Palghar lynchings (the FIRs were eventually transferred by the Supreme Court to a single Mumbai police station).
FIRs were also registered in multiple states across the country against the producers of the Amazon show Tandav, claiming that Hindu sentiments were hurt by certain scenes in the show (the FIRs were not transferred when a plea for this was made to the Supreme Court).
The Delhi Police themselves were willing to arrest environmental activist Disha Ravi from Bengaluru, for her supposed involvement in a toolkit regarding the farmers' protests, on the basis that this was part of a conspiracy to incite violence in Delhi on 26 January.
Therefore, when there is a clear argument to be made about consequences of the communal speeches of Narsinghanand and Amu in Delhi (and indeed across the country), it is difficult to see how the Delhi Police can justify not registering an FIR just because those speeches were made elsewhere.
It will now be up to the Saket court to decide whether to accept this argument on 8 October, when the next hearing will take place.
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