Kunal Kamra's tweets constituted two different offences': Argument before Varanasi Court in contempt of National Flag case
In the case before the Varanasi Court against comedian Kunal Kamra for allegedly insulting the Indian National Flag, the complainant filed the affidavit on Monday in pursuance of the earlier order of the Court.
On May 24, Judicial Magistrate Richa Sharma had directed the complainant to file an affidavit stating as to whether against Kamra the Supreme Court has taken cognizance of the offence under the Prevention of Insult to National Honour Act, 1971 or not.
Filing his 4 page long affidavit, the complainant, Advocate Saurabh Tiwari stated that the Top Court has not taken cognizance under the 1971 Act and only Criminal Contempt petition is pending before it over Kamra's multiple tweets where he made several contemptuous statements against the Court & its judges.
Taking note of Tiwari's affidavit and the fact that both the cases i.e. criminal contempt petition before the Top Court and contempt of National Flag before her, arise from the same incident, the Judicial Magistrate raised a query as to how can a Judicial Magistrate-I take congnizance when the matter is pending before Supreme Court?
To this, Tiwari asserted that Kamra's multiple tweets constituted two different offences i.e. contempt of Court & contempt and disrepute/disrespect to the Indian National Flag.
"Accused morphed the Supreme Court photograph and removed Tricolour hoisted atop of its building with Bhartiya Janta Party flag , this act is clearly punishable under Section 2 of The Prevention Of Insult To National Honour Act ,1971," he claimed.
Importantly, Tiwari further pressed the argument that the Contempt Of Court Act does not bar operation of the Prevention Of Insult To National Honour Act ,1971.
He cited one example that when a detenue is produced before the Court by the Police & subsequently beaten or assaulted in the Court Corridor, this act will clearly constitute criminal contempt however, the victim detenue will still hold the right to file a case against the police under Indian Penal Code provisions.
Tiwari also pointed out that he has filed the instant case in pursuance of the order of the Allahabad High Court passed on April 28, 2022. He asserted that though refusing to interfere in lower court's dismissal of his application under Section 156(3) of Criminal Procedure Code, the high court had clearly stated that in the light of judgement of Apex Court in the case of Sakiri Vasu Vs. State of U.P. and others (2007), Tiwari has alternative remedy to invoke the proper proceedings against Kamra.
The Judicial Magistrate then enquired as to what is the alternate remedy that the high court had mentioned in its order? To this, Tiwari replied that proper proceedings as stated in High Court order means Criminal Complaint U/Sec . 200 of Cr.P.C. against the Accused.
Tiwari also informed the Court that the high court bench had orally said him that you can file Criminal Complaint against the proposed Accused.
Thereafter, the Judicial Magistrate asked about the jurisdiction of JM-I Court as offence Committed on Twitter.
Tiwari then replied that Kamra posted concerned morphed photograph on Twitter & being a Varanasi resident and seeing this post in Varanasi, he has a right to file a case before the Local Court which has the jurisdiction to entertain this complaint.
"Twitter is a public platform and Section 2, Explanation 3 of the 1971 Act already States that Public Place means any place intended for use by , or accessible to , the public and includes any public conveyance," Tiwari contended.
Taking note of Tiwari's arguments, the Judicial Magistrate reserved the order and posted the matter on June 2.
Case Title: Saurabh Tiwari v. Kunal Kamra