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The case arose from an FIR filed against Mishra for violating the Model Code of Conduct and the RP Act. The allegations stated that he made objectionable remarks in electronic media, referring to the formation of ‘small Pakistans’ in Delhi. He also posted tweets on January 22 and 23, 2020, allegedly promoting enmity between classes during the elections. Following these statements, a show cause notice was issued on January 23, 2020, leading to the registration of the FIR.
The bench of Justice Ravinder Dudeja of the Delhi High Court, recently, issued a notice in a petition filed by BJP leader Kapil Mishra challenging the order of the Rouse Avenue Court. The Rouse Avenue Court upheld the trial court’s order taking cognizance against Mishra for promoting enmity between classes during the Delhi Legislative Assembly Elections.
On March 7, 2025, the Rouse Avenue Court upheld the trial court’s decision to take cognizance of BJP leader Kapil Mishra’s alleged offence of promoting enmity between classes during the Delhi Legislative Assembly Elections.
Special Judge Jitendra Singh held that the word “Pakistan” was deliberately used in Mishra’s statements to provoke hatred and cause communal polarization for electoral gain. The Rouse Avenue Court asserted that one could not indirectly engage in conduct prohibited by Section 125 of the Representation of the People Act (RP Act) if it was not permissible directly.
Mishra challenged the order on three grounds. First, he argued that the trial court took cognizance despite the chargesheet being time-barred. Second, he claimed that the police lacked the authority to investigate a non-cognizable offence under Section 125 of the RP Act without prior court approval under Section 155 of the Code of Criminal Procedure (Cr.P.C.). Third, he contended that his statements did not amount to promoting enmity during elections.
Senior Advocate Pavan Narang, representing Mishra, asserted that the trial court wrongly treated the offence as cognizable, making the summoning order unlawful. He further argued that Mishra’s statements lacked the essential elements of Section 125 of the RP Act, as they did not target any specific community. He maintained that Mishra merely expressed his opinion on the Shaheen Bagh protests and did not intend to incite hatred. He insisted that the statements were made to highlight certain disruptive social elements under the guise of the anti-CAA movement.
On the other hand, Additional Public Prosecutor Manish Rawat, representing the State, contended that Mishra committed an electoral offence by promoting enmity based on religion. He argued that Mishra disseminated multiple statements via electronic and social media to gain electoral advantage through communal polarization. He asserted that Section 125 of the RP Act was cognizable, making prior court permission unnecessary for investigation.
The Rouse Avenue Court noted that the RP Act did not explicitly classify Section 125 as cognizable or non-cognizable. Referring to Schedule II of the Cr.P.C., it determined that offences punishable with three years of imprisonment or more were cognizable, while those with lesser penalties were not. Since Section 125 prescribed imprisonment of up to three years, its classification required legal interpretation. The Rouse Avenue Court held that the offence was cognizable, rejecting the argument that prior judicial permission was required for investigation.
Regarding the allegations, the Rouse Avenue Court emphasized the importance of free and fair elections under Article 324 of the Indian Constitution. It acknowledged India's religious and cultural diversity but criticized the recurring use of communal rhetoric in elections. It observed that divisive politics threatened democracy and pluralism.
The Rouse Avenue Court further clarified that the RP Act distinguished between corrupt practices and electoral offences. While Section 123(3) classified religious, caste-based, or linguistic appeals as corrupt practices, Section 125 criminalized actions promoting enmity among groups. Mishra argued that his statements did not reference any religion, caste, or community but mentioned a country, which was not prohibited under Section 125. The Rouse Avenue Court dismissed this argument, ruling that the implicit reference was an unmistakable innuendo aimed at a particular religious community.
The Rouse Avenue Court reaffirmed the Election Commission’s constitutional duty to prevent divisive rhetoric in elections. It upheld the trial court’s decision, concluding that the available evidence justified taking cognizance of the offence.
For Petitioner: Advocate Himanshu SethiCase Title: Kapil Mishra v State (CRL.M.C.-1805/2025)
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