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Synopsis

The Rouse Avenue Court, recently, upheld the trial court’s order to take cognizance against BJP leader Kapil Mishra for promoting enemity between classes in connection with Delhi Legislative Assembly Elections.

Special Judge Jitendra Singh held, “The word ‘Pakistan’ is very skillfully weaved by the revisionist in his alleged statements to spew hatred, careless to communal polarisation that may ensue in the election compaign, only to garner votes… One cannot be allowed to do something, that has been prohibited by Section 125 of RP Act, indirectly, if he cannot do it directly”. 

The case stemmed after an FIR was filed alleging a violation of the Model Code of Conduct and the RP Act against Kapil Mishra. The allegations stated that Mishra made objectionable statements in electronic media, referring to the creation of ‘small Pakistans’ in Delhi. Additionally, he posted tweets on 22 and 23 January 2020, which allegedly aimed to promote enmity between classes during the Delhi Legislative Assembly Elections. Consequently, a show cause notice was issued on January 23, 2020, leading to the registration of the FIR.  

However, Kapil Mishra challenged the impugned order on three grounds. Firstly, it was asserted that the Trial Court took cognizance despite the chargesheet being barred by limitation. Secondly, the police lacked the authority to investigate a non-cognizable offence under Section 125 of the RP Act without prior court permission under Section 155 of Cr.P.C. Thirdly, the alleged statements did not amount to promoting enmity during the elections.

Senior Advocate Pavan Narang, representing Mishra, argued that the Trial Court erred in treating the offence under Section 125 of the Representation of the People Act (RP Act) as cognizable, rendering the summoning order illegal.

Senior Advocate Narang further submitted that the complaint lacked the essential ingredients of Section 125 of the RP Act. The words ‘Shaheen Bagh’ and ‘Pakistan’ did not target any particular community. It was asserted that Mishra merely expressed his stance on the Shaheen Bagh protests and did not intend to incite hatred. His statements, made during the election process, aimed to highlight certain social elements disrupting peace under the pretext of the anti-CAA movement. 

Additional Public Prosecutor Manish Rawat, representing the State, submitted that Mishra engaged in an electoral offence by promoting enmity between different classes based on religion. Mishra allegedly disseminated multiple statements through electronic and social media. These statements were made during the election period, and it was argued that Mishra sought electoral advantage by inciting hatred on religious grounds. The offence under Section 125 of the Representation of the People Act was stated to be cognizable, making prior permission for investigation under Section 155 of the Cr.P.C. unnecessary.

The court noted that the RP Act did not explicitly classify the offence as cognizable or non-cognizable. Referring to Schedule II of the Code of Criminal Procedure (Cr.P.C.), it determined that offences punishable with imprisonment of three years or more were cognizable, while those with lesser punishment were non-cognizable. Since Section 125 prescribed a punishment extending up to three years, its classification became a matter of legal interpretation.

The court further opined that Section 125 of the RP Act was cognizable. Consequently, the court rejected the argument that police required prior judicial permission for investigation was deemed untenable.

Regarding the nature of the allegations, the court emphasized the significance of free and fair elections under Article 324 of the Indian Constitution. It acknowledged India's religious and cultural diversity but noted the persistent issue of communal rhetoric in elections. 

The court noted that “there has been a trend in this country to resort to communally charged speeches to garner votes during elections. This is the outcome of politics of divisiveness and politics of exclusion which is a threat to the democratic and plural fabric of the country”. 

Relying on the Supreme Court’s judgment in the case of Dhartipakar Madan Lal Agarwal v Rajiv Gandhi [AIR 197 SC 1577], the court emphasized that “any action which generates powerful emotions, depriving people of their powers of rational thinking should not be permitted, for preservation of the democratic freedoms”. 

Furthermore, the court observed that the RP Act classified objectionable conduct into corrupt practices and electoral offences, with the latter attracting criminal liability. Section 123(3) defined appeals based on religion, caste, community, or language as corrupt practices, while Section 125 criminalized efforts to promote enmity or hatred among different groups.

Mishra argued that his alleged statement did not refer to any religion, caste, or community but mentioned a country, which was not prohibited under Section 125. The court rejected this argument, remarking that “This submission is simply preposterous and outrightly untenable, the implicit reference underlying the particular ‘country’ in the alleged statement is an unmistaken innuendo to persons of a particular ‘religious community’, apparent to generate enmity amongst religious communities. This can be effortlessly understood even by a layman, let alone by a reasonable man”. 

The court further emphasized the Election Commission’s constitutional duty to prevent candidates from engaging in divisive rhetoric. It upheld the trial court’s decision, noting that the supporting documents provided sufficient grounds for taking cognizance of the offence under Section 125 of the RP Act. Consequently, the revision petition was dismissed.

For Revisionist: Senior Advocate Pavan Narang with Advocates Himanshu Sethi and Aishwarya Chhabra
For State: Additional Public Prosecutor Manish Rawat
Case Title: Kapil Mishra v State (Criminal Revision Petition No. 22/2024)