"Powers u/s.156(3) CrPC cannot be exercised mechanically": Delhi HC quashes order directing registration of FIR against VHP Leader

The Delhi High Court recently held that a direction for registration of FIR under Section 156(3) Code of Criminal Procedure, 1973 cannot be cryptic or devoid of any reasoning – The duty to give reasoned decisions is an obligation which is in consonance with idea of institutional responsibility of judiciary to the public at large; they are the expressions of a Court’s mind which is essential for judicial function, Court said. It was further added that the organiser of an event cannot be made vicariously liable for the acts of some other person specially when there is no precise allegation against him in the FIR.

Justice Swarana Kanta Sharma, while quashing the order dated 18.02.2020 issuing a direction for registration of FIR, observed, “the complaint qua the present petitioner was not a case of insufficient material but of no material at all. The Court also takes note of the fact that though the Magistrate mentions that from perusal of the complaint, commission of cognizable offence is revealed there is no allegation in the entire complaint itself or in the Action Taken Report about any act of commission or omission on part of the present petitioner.”

On Powers of Magistrate to direct registration of FIR under Section 156(3) CrPC, 1973

While summarizing judicial principles on the aforesaid, Court observed under Para 40 of the judgment;

“(i) Power under Section 156(3) CrPC necessitates application of judicial mind.

(ii) Such power is to be exercised in a judicious manner, and cannot be exercised mechanically or arbitrarily.

(iii) Magistrates cannot direct registration of FIR on mere asking of the complainant.”

Reliance was inter-alia placed on Priyanka Srivastava v. State of UP (2015) 6 SCC 287, Subhkaran Luharuka v. State 2010 SCC OnLine Del 2324, Usha Chakraborty v. State of West Bengal 2023 SCC OnLine SC 90, Pandharinath Narayan Patil v. State of Maharashtra 2015 SCC OnLine Bom 882, Ramdev Food Products Pvt. Ltd. v. State of Gujarat (2015) 6 SCC 439, Anil Kumar v. MK Aiyappa (2013) 10 SCC 705.

On Judicial Discretion and Reasoned Decisions

Emphasizing on the principles of Natural Justice, Court under Paras 75,76,77,78 and 79 further added;

“The importance of passing a reasoned order cannot be undermined when the order in question is challengeable in the higher Court and can be called into question by a petition seeking judicial review by way of a revision or appeal. When faced with an order which is passed without reasons, the higher Courts cannot decipher whether or not the concerned Judge has reached the decision after application of judicial mind or not. The application of judicial mind can be adjudged only by appreciating the reasons given to support the order in question.”

“From the perspective of appellate review, factually supported and reasoned order facilitates a review of the order. It also facilitates the correcting role of the appellate Courts by reaching a correct decision in case the reasons are found to be baseless or based on incorrect facts and law.”

“The duty to give reasoned decisions is also an obligation which is in consonance with idea of institutional responsibility of judiciary to the public at large, since they are entrusted with judicial power of making decisions which affect the lives of the citizen of this country who have a right to know, through the reasoning given by the Judge, as to how and why an order has been passed against them. Reasons are expressions of a Court‟s judicial mind which is essential for judicial function.”

On Vicarious Liability for Criminal Offences

Examining the role of petitioner as an organiser of the event where the alleged hate speech was made, Court under Paras 90 to 96, observed;

"Mere presence in itself is not enough to indicate that petitioner was taking part, concurring or encouraging any other person to commit any offence in the factual circumstances of present case. While organising a meeting will be a lawful act, if something unlawful takes place as a result of some action entirely unknown to the organiser by some person not related to him, whom he had no control over and for whom he had no responsibility, but both were just present at a spot for the purpose of religious ceremony, it will not attract the offences in question, as in the present case, especially as no action/role has been attributed to him in the complaint, reply filed by the police or Action Taken Report."

"In case FIRs are registered against a person organising a meeting, for the misconduct of any participant of the meeting, it will severely impact the basic principle of criminal law that a person is accountable for his own criminal actions and others are not vicariously liable for the same unless specifically provided for under law."

Application of aforesaid principles on the facts of the present case

Under Para 44 of the judgment, the Court referred to the filing of an Action Taken Report which acts as a preliminary enquiry for the Magistrate to decide whether the given case mandates registration of FIR or not. In that light, Court having regard to the facts and circumstances of the present case, inter-alia observed,

“(i) No cognizable acrimony had been caused pursuant to the speech delivered by accused no. 2.

(ii) There were several statements of the local residents to the effect that no incident mentioned in the complaint had taken place.

(iii) No religious acrimony had been caused pursuant to speech being delivered by accused no. 2, Swamiji.

(iv) There was no specific role assigned to the present petitioner in the complaint.”

Brief Background

The present petition was moved under Section 482 of the Code of Criminal Procedure (CrPC), 1973, challenging the order dated 18.02.2020 passed by the Magistrate, directing Station House Officer (SHO) at Police Station Hauz Qazi, to register FIR on the basis of a complaint lodged by respondent no. 1. As per the petitioner, the said complaint was purely malicious and motivated, injuring his reputation.

Counsel for the petitioner argued that the Ld. Magistrate failed to appreciate that respondent no. 1 did not level any allegations against the petitioner in the entire complaint u/s. 156(3) CrPC, except a single line that the petitioner was the International Working President Of Vishwa Hindu Parishad, the organisation responsible for holding the public gathering on 09.07.2019.

The primary issue before the court was to examine whether an order passed under Section 156(3) CrPC by the Magistrate, directing for registration of FIR, merits quashing or not.

The grievance of respondent no. 1 related to an incident dated 09.07.2019 which allegedly took place on the occasion of ‘Pran Pratishtha’ of idols of Hindu Gods and Goddesses. As per respondent no. 1, a public meeting had been organised by Vishwa Hindu Parishad at Lal Kuan Hauz Qazi, Delhi, where one Swamiji from Kashi delivered a speech, which was provocative and against the religious sentiments of the Muslim community.

Consequently, respondent no. 1 filed a complaint with the SHO Daryaganj as well as to the Commissioner of Police whereby he alleged that the remarks made by Swamiji constituted hate-speech and fell within the ambit of Ss. 153, 153A and 153B IPC, promoting communal disharmony and enmity between religious groups. It was further alleged that the comments made were intended to outrage the religious sentiments of the Muslim community, an act punishable under Section 205 IPC, 1860.

Additional Chief Metropolitan Magistrate-02 (ACMM), Central Tis Hazari Courts, Delhi, vide order dated 18.02.2020, directed the concerned SHO to register FIR against the proposed accused persons, including the present petitioner, under appropriate provisions of law.

Case Title: Alok Kumar v. Harsh Mander | Crl. M.C. 1463 of 2020 and Crl. M.A. 5732 of 2020