Brinda karat and anr. v. state and anr. (defects cleared)

IN THE HIGH COURT OF DELHI AT NEW DELHI
EXTRAORDINARY CRIMINAL JURISDICTION
WP (CRL.) NO. OF 2020
IN THE MATTER OF:
BRINDA KARAT AND ANR. …PETITIONERS
Versus
STATE OF NCT OF DELHI
AND ANR. …RESPONDENTS
INDEX
S. No. Particulars Page
No.
1. Notice of Motion 1
2. Urgent Application 2
3. Memo of parties 3
4. Synopsis and list of dates 4
5. Petition under Articles 226/227 of the Constitution
of India read with Sections 482/483 of the Code of
Criminal Procedure, 1973 along with
accompanying Affidavit
12
6. ANNEXURE P-1:
True Copy of the Impugned Order dated
26.09.2020 passed by the Ld. ACMM-01, Rouse
Avenue Courts, New Delhi in Ct. Cas No.4/2020
44
7. ANNEXURE P-2:
True Copy of the Petitioners’ Complaint to the
Commissioner of Police dated 29.01.2020.
50
8. ANNEXURE P-3 (Colly.):
Representations dated 31.01.2020 and 02.02.2020
given by the Petitioners.
53
9. ANNEXURE P-4:
True Copy of the Application of the Petitioners
under Section 156(3) of the Code of Criminal
55

Procedure, 1973 filed before the Ld. ACMM,
Rouse Avenue Courts, Delhi along with
Annexures
10. ANNEXURE P-5 (Colly.)
True copies of Orders dated 05.02.2020 and
11.02.2020 passed by the Ld. ACMM-01, Rouse
Avenue Courts, in Ct. Cas. No. 04/2020.
139
11. ANNEXURE P-6
True copy of the Delhi Police Status Report dated
11.02.2020 filed in Ct. Case. No.04/2020.
142
12. ANNEXURE P-7
True copy of the Delhi Police Status Report dated
26.02.2020 filed in Ct. Cas. No.04/2020.
145
13. ANNEXURE P-8
True copy of Order dated 26.02.2020 passed by
the Ld. ACMM-01, Rouse Avenue Courts, in Ct.
Cas. No. 04/2020.
150
14. ANNEXURE P-9 (Colly.)
True copies of Orders dated 26.02.2020 and
27.02.2020 passed by this Hon’ble Court in
WP(C) No.565/2020 titled Harsh Mander v. State.
151
15. ANNEXURE P-10
the Ld. ACMM-01, Rouse Avenue Courts, in Ct.
Cas. No. 04/2020.
159
16. ANNEXURE P-11
this Hon’ble Court in WP (Crl) No. 670/2020
titled Brinda Karat v. State.
161
17. ANNEXURE P-12
True copy of the video showing Accused No.1’s
speech on 27.01.2020 published by India Today
163

18. ANNEXURE P-13
True copy of the video of the interview of Accused
No.2 dated 28.01.2020 available on the officer
ANI Twitter handle
164
19. Application seeking ad-interim, ex-parte relief 165
20. Application under Section 482 CRPC for
exemption from filing certified/ typed/
translated/illegible/dim copies of the annexures
173
21. Vakalatnama 179
22. Court Fees 180
23. Proof of Service
ADVOCATES FOR THE PETITIONERS
TARA NARULA, ADIT S PUJARI, APARAJITA SINHA,
TUSHARIKA MATTOO, CHAITANYA SUNDRIYAL
H-32 Jangpura Extension (LGF), New Delhi – 110014
(m) +91 9810037337, 9007949448|tara@narulaandassociates.com
NEW DELHI
03.10.2020
181

[EXTRA ORDINARY CRIMINAL JURISDICTION]
WP(CRL.) NO. ________ OF 2020
IN THE MATTER OF:
BRINDA KARAT & ANR. …PETITIONERS
VERSUS
STATE OF NCT OF DELHI & ANR. …RESPONDENTS
NOTICE OF MOTION
To
1. The Standing Counsel [Criminal],
National Capital Territory of Delhi,
High Court of Delhi at New Delhi
Subject: Petition under Articles 226/227 of the Constitution of
India read with Section 482/483 of the Code of Criminal
Procedure, 1973 titled Brinda Karat and Anr. v. State of
NCT of Delhi and Anr., WP (Crl.) No. _______ of 2020
Dear Sir,
Kindly find enclosed the accompanying petition under Article
226/227 of Constitution of India read with Section 482/483 of the
Code of Criminal Procedure, 1973 along with Annexures. The same
is being filed on 05.10.2020 and same is likely to be listed on
07.10.2020 at 10:30 am or at any time thereafter as per the
convenience of the Hon’ble Court.
Kindly take notice of the same.
Thank you,
Yours sincerely,
TARA NARULA, ADIT PUJARI AND APARAJITA SINHA
[Advocates for the Petitioners]
H-32 Jangpura Ext. (LGF),
New Delhi - 110014
Mobile: +91 9810037337
tara@narulaandassociates.com
New Delhi
Dated: 05.10.2020
1

WP (CRL.) NO. ________ OF 2020
IN THE MATTER OF:
BRINDA KARAT & ANR. …PETITIONERS
VERSUS
STATE OF NCT OF DELHI & ANR. …RESPONDENTS
URGENT APPLICATION
To
The Registrar
High Court of Delhi
New Delhi
Dear Sir,
Kindly treat the accompanying Petition under Articles 226/227 of the
Constitution of India read with Section 482/483 of the Code of
Criminal Procedure, 1973 as urgent for the purpose of the Delhi High
Court Rules as urgent reliefs are being sought for. The mentioning
vide reference No. 1601873419852_35935 for urgent listing has been
accepted for being listed on 07/10/2020.
Thank you,
Yours sincerely,
TARA NARULA AND APARAJITA SINHA
[Advocate for the Petitioners]
406, Lawyers Chambers Block-I,
Delhi High Court, New Delhi - 110503
New Delhi Mobile: +91 9810037337
Dated: 05.10.2020 tara@narulaandassociates.com
2

WP (CRL.) NO. ___________ OF 2020
[PETITION UNDER ARTICLES 226/227 OF THE
CONSTITUTION READ WITH SECTION 482/483 OF THE CRPC
SEEKING QUASHING OF ORDER DATED 26.08.2020 PASSED
BY SH. VISHAL PAHUJA, LD ACMM-1, ROUSE AVENUE
DISTRICT COURTS, NEW DELHI DISMISSING THE
PETITIONERS’ APPLICATION UNDER SECTION 156(3) OF
THE CODE OF CRIMINAL PROCEDURE AND THE ISSUANCE
OF PRACTICE DIRECTIONS]
MEMO OF PARTIES
IN THE MATTER OF:
1. BRINDA KARAT
D/o Lt. Sh. Suraj Lall Dass
27-29 Bhai Vir Singh Marg,
New Delhi – 110001 …PETITIONER NO.1
2. KM TIWARI
S/o RP Tiwari
14, Vithalbhai Patel House
Rafi Marg,
New Delhi - 110001 …PETITIONER NO.2
VERSUS
1. STATE OF NCT OF DELHI
Through its Standing Counsel (Criminal)
Chamber No. 436, High Court of Delhi,
New Delhi -110003 ...RESPONDENT NO.1
2. COMMISSIONER OF POLICE
Delhi Police
Through Standing Counsel (Criminal)
Delhi High Court
New Delhi - 110503 …RESPONDENT NO.2
TARA NARULA AND APARAJITA SINHA
[Advocates for the Petitioners]
H-32 Jangpura Ext. (LGF),
New Delhi - 110014
New Delhi Mobile: +91 9810037337
Dated: 05.10.2020 tara@narulaandassociates.com
3

SYNOPSIS AND LIST OF DATES
The Petitioners have preferred the present Writ Petition under
Articles 226/227 of the Constitution of India read with Sections
482/483 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as “CrPC”), being aggrieved by Order dated 26.08.2020
passed in Ct. Case No. 04/2020 titled Brinda Karat & Anr. v. State,
by the Court of the Ld. Additional Chief Metropolitan Magistrate (I),
Rouse Avenue Courts, Delhi (“Impugned Order”). Vide the said
Order, the Ld. ACMM has dismissed the Petitioners’ Application
under Section 156(3) CrPC seeking investigation / registration of FIR
for offences under Sections 153A/153B/295A/298/504/505/506 IPC,
finding that prior sanction under Section 196 CrPC is required even
at this initial stage, which was not obtained by the Petitioners /
Complainants. In fact, no such objection was raised by the
Respondent. If the rationale behind the Impugned Order is permitted
to stand, then no Application under Section 156(3) would be
maintainable before any Court within the territorial jurisdiction of
this Hon’ble Court, in respect of offences for which sanction is
required to be taken prior to cognizance.
The Impugned Order is challenged on, inter alia, the following
Grounds:
A. A plain reading of Section 196 CrPC demonstrates that the
sanction to be taken thereunder is a sanction for taking
cognizance. It is settled law that the stage of cognizance does
not arise at a time when directions under Section 156(3) CrPC
are given, and as such, no sanction is required under either
Section 195 or 196 CrPC for the registration of an FIR and/or
for investigation.
B. The Ld. ACMM has relied on Anil Kumar v. MK Aiyappa,
(2013) 10 SCC 705, and L. Narayana Swamy v. State of
Karnataka Crl. Appeal No. 721/2016, to hold that, in the
absence of prior sanction, the Petitioners’ Application under
4

Section 156(3) CrPC is not maintainable. The Ld. ACMM has
erred in that the judgement and the findings therein concerns
sanction under Section 19 of the Prevention of Corruption Act,
and not the CrPC. The findings of the Supreme Court are
therefore distinguishable from the present case, on facts. Even
otherwise, the said findings are contrary to prior judgments of
the Hon’ble Supreme Court, which relate to the interpretation of
the word “cognizance”, as applicable at the stage of Section
156(3) CrPC.
C. Furthermore, if the aforementioned finding in Anil Kumar is
held applicable to cases other than under the PC Act, the said
ratio would be per incuriam in view of settled law. It would also
result in gross and manifest injustice, where a person aggrieved
by police inaction would first have to seek sanction from the
State, and only then approach the Court under Section 156(3)
CrPC. This is particularly true in the instant case, which sought
registration of an FIR for offences relating to hate speech uttered
by two Members of Parliament. The commission and content of
the speeches is not disputed, yet no decision on merits has been
passed, delaying the registration of an FIR by several months.
This is contrary to the maintenance of public order and policy
and further severely hinders access to justice. It also places an
unjustified fetter on the powers of the Magistrate under Section
156(3) CrPC, which is contrary to the intent of the legislature as
elucidated in a catena of judgments.
D. The judgement of the Supreme Court in Manju Surana v. Sunil
Arora and Ors., reported in (2018) 5 SCC 557 further clarifies
the position in respect of the requirement for Sanction and
impliedly limits the application of the finding in Anil Kumar
(supra) to cases under the Prevention of Corruption Act only.
The bench in Manju Surana, after extensive discussion, referred
the “conundrum arising in respect of the interplay of the PC Act
offences read with CrPC”, that is, whether sanction under S.19
5

PC Act is a prerequisite to maintain an Application under
S.156(3) CrPC, to a larger bench.
E. It is further submitted that the Court of Sh. Vishal Pahuja, Ld.
ACMM-01, Rouse Avenue Court is a Designated Special Court
to deal with cases against elected MPs/MLAs. It is the
competent Court to deal with applications under Section 156(3)
CrPC in respect of Complaints against elected MPs. There is no
fetter to this power on the administrative side or, as
demonstrated above, on the judicial side. To read such a fetter
into the operation of Section 156(3) CrPC would render this
Special Court otiose in respect of a number of cases seeking
registration of an FIR against MPs / MLAs.
F. Pertinently, there are no practice directions issued by this
Hon’ble Court to the Ld. Magistrate’s Courts / District Court
registries stating that sanction under S.196 CrPC is a condition
precedent to entertaining an Application under Section 156(3)
CrPC for offences pertaining to hate speech. The very absence
of such directions or established procedure for the registry
indicates that such sanction is not contemplated to be obtained
at the stage of an Application under S.156(3) CrPC. It is
submitted that the Petitioners have been grossly prejudiced by
the dismissal of their Application on a technical ground after the
lapse of ten months and after addressing the Court on merits.
Further, there has been precious wastage of judicial time, which
could have been avoided had either the registry raised such an
objection on the Petitioner’s application, or if the question of
maintainability had been decided at the outset. It is submitted
that, if this Court or the Supreme Court were to ever mandate
the necessity of sanction at this stage, a detailed mechanism on
the administrative side would be required to be put in place to
facilitate access to justice in this regard.
G. Lastly, it is submitted without prejudice to the aforesaid, that
directions also ought to be issued under Article 226 of the
6

Constitution to the Respondent State to widely publicize the
manner in which prior sanction can be obtained by a
complainant / applicant for prosecution of the offences
mentioned in Ss.195 and 196 CrPC, should they wish to press
their complaint under S.200 CrPC, before the concerned Court.
The Petitioners / Complainants in the present case, already aggrieved
by the failure of the Police to register an FIR for the commission of
cognizable offences amounting to hate speech, have now been
relegated by the Ld. ACMM to seek sanction from the State / Centre,
a sanction which is a statutory requirement for taking cognizance, not
investigation. The Complainant is effectively being asked to step into
the shoes of the investigating agency and make a case for prosecution
before the Sanctioning Agency. Furthermore, any Application for
Sanction by the complainant at this stage would be without the benefit
of materials and evidence obtained during investigation. As the
Sanctioning Authority is required to apply its mind to the materials
and evidence before it, the Complainant may be in a catch-22, where
there can be no investigation without sanction, and no sanction
without adequate evidence. Moreover, there evidently cannot be the
requirement of obtaining two sanctions – one prior to registration of
FIR, and the second after completion of investigation and preparation
of draft charge-sheet.
Without prejudice to the present Petition, the Petitioners reserve their
right to also move an Application seeking sanction for prosecution /
cognizance under S.196 CrPC before the competent authority, even
though the same is not required in law. The Petitioners had filed the
Complaint over 9 months ago and the registration of FIR is already
extremely delayed despite cognizable offences being made out. It is
therefore respectfully prayed that this Hon’ble Court may set aside
the Impugned Order as prayed.
27.01.2020 Mr. Anurag Thakur, Minister of State, Finance and
MP (Accused No.1) made the incendiary hate
7

speech at a rally shouting the slogan “desh ke
gaddaron ko, goli maaron saalon ko”.
27.01.2020-
28.01.2020
Mr. Parvesh Verma, MP (Accused No.2) made the
inflammatory hate speeches while campaigning for
BJP and subsequently in an interview to ANI,
threatening use of force to remove protestors at
Shaheen Bagh and promoting hatred and enmity
against Muslim persons by portraying them as
invaders who will enter houses and rape and kill
people.
29.01.2020 ECI order passed against both the accused persons
for the aforesaid speeches taking cognizance of
seriousness and gravity of the hate speeches and
observed that such speeches are a violation of the
Model Code of Conduct, removing them as leaders
(star campaigners) for BJP.
29.01.2020 Hindu Sena issued a press release calling upon
people to use force to remove the protestors at
Shaheen Bagh.
29.01.2020 The Petitioners filed a complaint with the CP
against the accused persons seeking immediate
registration of FIR.
30.01.2020 ECI issued orders against both the accused persons
for the aforesaid hate speeches barring them from
campaigning for the Delhi elections for a period of
72 hours and 96 hours for violating the provisions
of the Model Code of Conduct and the
Representation of People Act, 1951.
30.01.2020 A man shot at protestors outside Jamia Millia
Islamia University (JMI) injuring a student.
8

31.01.2020 The Petitioners addressed a follow-up
representation reiterating their request for
immediate registration of FIR in light of the
shooting at JMI.
31.01.2020 A video was posted on the official Instagram handle
of BJP, with threatening messages for protestors in
Delhi, particularly those at Shaheen Bagh.
01.02.2020 A man fired shots at Shaheen Bagh near a large
crowd of protestors.
02.02.2020 UP CM, Yogi Adityanath made an inflammatory
statement that he will feed protestors “goli” (bullets)
instead of biryani.
02.02.2020 The Petitioners addressed a letter to SHO,
Parliament Street forwarding the complaint dated
29.01.2020 and representation dated 31.01.2020.
02.02.2020 Two unidentified gunmen fired shots near JMI
where a large number of protestors were gathered.
04.02.2020 A mob of people, repeating Accused No.1’s slogan
“desh ke gaddaron ko, goli maaron saalon ko” were
aggressively approaching the protestors at JMI.
11.02.2020 The Application filed by the Petitioners under
Section 156(3) CrPC being Ct. Case No. 04/2020
was heard and preliminary status reports were filed
by the ISC/Crime branch. Taking note of the
volatility of the situation, the Ld. ACMM, Rouse
Avenue only granted 15 days to file a detailed status
report.
11.02.2020,
13.02.2020,
23.02.2020
Several speeches were made by senior BJP leaders
including Ramesh Bidhuri, Amit Shah and Manoj
Tiwari regarding the hate speeches of the accused
persons.
9

23.02.2020-
26.02.2020
Kapil Mishra issued an ultimatum to the Delhi
police threatening to clear the protestors at Jaffrabad
metro station, minutes after which a full-scale riot
broke out in several parts of North-East Delhi
leading to loss of lives and property, where Muslims
were systematically targeted. Over 50 people have
died and over 300 have been injured, most of whom
are Muslims. While the violence against Muslim
persons was ongoing, on 25.02.2020, BJP MLA,
Abhay Verma led the chant of “goli maaro saalo
ko” and “Jo Hindu hit ki baat karega, wohi desh pe
raj karega”.
26.02.2020 The 156(3) Application was heard before the Ld.
ACMM, Rouse Avenue the ISC/Crime branch filed
a detailed status report and the matter was reserved
for orders.
26.02.2020-
27.02.2020
Writ Petition (Crl.) No. 565 of 2020, Harsh Mander
v. State was argued in the High Court where the
Petitioners sought the registration of FIR against
Kapil Mishra, as well as the accused persons.
29.02.2020,
02.03.2020
Multiple incidents, one at Delhi’s Rajiv Chowk and
one at a rally taken out by the Home Minister Mr.
Amit Shah, in Kolkata, where the mob was
repeatedly shouting the slogan “desh ke gaddaro ko,
goli maaro saalo ko”
02.03.2020 The Ld. ACMM, Rouse Avenue passed an order in
the 156(3) Application that since the Delhi High
Court is seized of the matter, the court shall not pass
any orders till the outcome of WP(Crl.) 565 of 2020
and adjourned the matter to 23.04.2020.
05.03.2020 Petitioner No.1 was constrained to file a writ
petition being WP (Crl.) No. 670 of 2020 seeking
10

setting aside of the order dated 02.03.2020 passed
by the Ld. ACMM, Rouse Avenue, and directions
to the court to pass orders in the 156(3) Application.
27.07.2020 Counsel for the petitioner in WP(Crl.) No. 565 of
2020 was given permission to withdraw the said
petition with liberty to approach the concerned Trial
Court.
05.08.2020 WP (Crl.) No. 670 of 2020 was disposed of by the
Hon’ble Delhi High Court with directions to the Ld.
ACMM, Rouse Avenue to pass orders in the 156(3)
Application since Petitioner No.1 herein informed
the Delhi High Court that arguments had been
concluded before the Ld. ACMM, Rouse Avenue
and that the order was reserved.
26.08.2020 Impugned Order was passed by the Ld. ACMM,
Rouse Avenue in Ct. Case No. 04 of 2020 under
Section 156(3) CrPC dismissing the application of
the Petitioners without going into the merits of the
case on the ground that prior sanction is required for
prosecuting the accused persons.
Hence this Petition.
11

CRIMINAL EXTRAORDINARY JURISDICTION
IN THE MATTER OF:
BRINDA KARAT AND ANR. …PETITIONERS
Versus
AND ANR. …RESPONDENTS
PETITION UNDER ARTICLES 226/227 OF THE
CONSTITUTION OF INDIA READ WITH SECTIONS 482/483
OF THE CODE OF CRIMINAL PROCEDURE, 1973 SEEKING
SETTING ASIDE OF ORDER DATED 26.08.2020 PASSED BY
SH. VISHAL PAHUJA, LD. ACMM-01, ROUSE AVENUE
DISTRICT COURTS, NEW DELHI DISMISSING THE
PETITIONERS’ APPLICATION UNDER SECTION 156(3)
CRPC FOR WANT OF SANCTION UNDER SECTION 196 OF
THE CODE OF CRIMINAL PROCEDURE, 1973
TO,
THE CHIEF JUSTICE OF THE HON’BLE
DELHI HIGH COURT AND HIS COMPANION JUSTICES
The Petition of the above-named Petitioners:
MOST RESPECTFULLY SHOWETH:
1. That the Petitioners are approaching this Hon’ble Court under
Articles 226/227 of the Constitution of India read with Sections
482/483 of the Code of Criminal Procedure, 1973 (hereinafter,
“CrPC”) in view of the decision of the Ld. Additional Chief
Metropolitan Magistrate-01, Rouse Avenue Courts, Delhi,
(hereinafter “Ld. ACMM”) to not direct registration of an FIR
on the Petitioners’ Joint Application under Section 156(3) CrPC,
12

despite cognizable offences being made out. The Ld. ACMM,
by way of his order dated 26.08.2020 passed in Ct. Case. No.
04/2020, has failed to consider the Petitioners' Application on
merits and has instead held that, since no prior sanction under
Section 196 CrPC has been obtained by the Complainants
(Petitioners herein), the complaint / application deserves to be
dismissed as not tenable in the eyes of law. A true copy of the
Impugned Order of the Ld. ACMM-01, Rouse Avenue Courts,
New Delhi dated 26.08.2020 is annexed herewith and marked as
Annexure P-1.
2. The Petitioner No.1 is a public personality and a political figure
who is a member of the Polit Bureau of the Communist Party of
India (Marxist) (hereinafter “CPI(M))”. The Petitioner No.1
was a Member of Parliament in the Rajya Sabha from 2005 to
2011. She has dedicated her life to social causes, and is a public
figure of eminence.
3. The Petitioner No.2 is also a political figure of repute and is a
member of the Central Committee of the CPI(M). He also holds
the post of the Secretary of the Delhi State Committee of
CPI(M).
4. That the Respondent No.1 is the State, and the Respondent No.2
is the Commissioner of Police, Delhi Police / prosecuting
agency.
5. The Petitioners had made Police Complaint dated 29.01.2020
and representation dated 31.01.2020 (in terms of Ss.154(1) and
(3) CrPC) against Mr. Anurag Thakur, Minister of State for
Finance, Government of India (hereinafter “Accused No.1”)
and Mr. Parvesh Verma, Member of Parliament (MP)
(hereinafter “Accused No.2”) alleging that they had made
communal and incendiary statements amounting to hate speech.
Thereafter, on 02.02.2020, the Petitioners once again addressed
a letter to the SHO, PS Parliament Street, forwarding the above-
13

mentioned complaints and reiterating the request that FIRs be
immediately filed against the accused persons. The
representations of the Petitioners highlighted the urgency in
taking immediate action in this regard in view of the incident of
violence on 30.01.2020, where an armed man shot at students of
Jamia Milia Islamia University (JMI), an incident which can be
directly attributed to the statements / calls for violence given by
the accused persons. True Copy of Police Complaint dated
29.01.2020 is annexed herewith as Annexure P-2 and true
copies of Representations dated 31.01.2020 and 02.02.2020
made by the Petitioners are annexed herewith as Annexure P-3
(Colly).
6. In brief, the complaint against Accused No. 1 pertains to the
widely televised and publicized speech given by Accused No.1
on 27.01.2020 at a rally at Rithala, Delhi where he led a chant
of “desh ke gaddaron ko, goli maaron saalon ko” (shoot the
traitors). With this speech, Accused No.1 exhorted the large
crowd present at the rally to shoot the traitors, referring to
persons who participated in peaceful protests against the
Citizenship (Amendment) Act, 2019 (hereinafter “CAA”) and
the National Registry of Citizens (hereinafter “NRC”). The
complaint against Accused No.2 is in reference to his widely
publicized statements on 27.01.2020 and 28.01.2020, wherein
the Accused No. 2 made incendiary statements inter-alia openly
threatening use of force on the protestors at Shaheen Bagh, many
of whom belong to the Muslim community, and in an entirely
offensive manner portraying them as invaders who would
invade houses and rape women and kill them. The accused
persons made the aforesaid statements with the full knowledge
and intention that such statements would have the propensity of
promoting enmity and hatred towards persons of certain
communities and would also directly instigate violence. These
speeches, have, in fact, directly contributed to multiple incidents
14

of violence and also a full-scale riot which has resulted in the
death of about 53 persons and large-scale destruction of
property. Detailed facts and circumstances surrounding the
commission of the offence are given in paragraph 14 of the
present Petition (below).
7. The Police Complaint was made by the Petitioners as
responsible and also aggrieved persons. It is settled law that
anyone can set criminal law into motion and there is no concept
of locus standi in criminal law at the stage of providing
information in relation to cognizable offences. Further, the
Police Complaint being one alleging widely publicized hate
speech by Members of Parliament, the Petitioners are privy to
the utterances and to the complete facts of the case.
8. When the investigating agency failed to act on the Police
Complaint, the Petitioners filed an Application under Section
156(3) CrPC seeking registration of FIR before the competent
Court, which was registered as Ct. Case No.04/2020. The
Application sought, inter alia, registration of FIR against the
accused persons for offences under Sections
153A/153B/295A/298/504/505/506 of the Indian Penal Code,
1860 (hereinafter “IPC”). A copy of the 156(3) Application
(along with Annexures) preferred by the Petitioners before the
Ld. ACMM on 4.2.2020 is annexed herewith and marked as
Annexure P-4.
9. The Application under Section 156(3) was listed for hearing on
05.02.2020, and thereafter on 11.02.2020. On the said date, it
was intimated to the Court that the complaint had been
forwarded to the Special Commissioner, Crime Branch to
investigate into the Complaint of the Petitioners and a short
status report was also filed by the Police. True copies of Orders
dated 05.02.2020 and 11.02.2020 are annexed herewith and
marked Annexure P-5 (Colly). True copy of the Delhi Police
15

Status Report dated 11.02.2020 is annexed herewith and marked
Annexure P-6.
10. Thereafter, on 26.02.2020, The police filed a detailed status
report, opining that no cognizable offence was made out on the
contents of the alleged speeches. It is pertinent to note that the
objection of the Police was limited to this fact, and there was no
objection that the Petitioners was required to obtain a prior
sanction for registration of FIR. True copy of the Status Report
dated 26.02.2020 is annexed herewith and marked Annexure P-
7. The Ld. ACMM heard arguments at length on 26.02.2020 on
the Application of the Petitioners and reserved the same for
orders on 02.03.2020. True copy of Order dated 26.02.2020 is
annexed herewith and marked Annexure P-8.
11. It came to the knowledge of the Petitioners subsequent to such
hearing, on the same day, i.e., 26.02.2020, that some persons
being aggrieved by the said speeches (subject matter of the
Complaint of the Petitioner), along with certain other
objectionable and incendiary utterances and acts by other
prominent persons, approached this Hon’ble Court by way of
Writ Petition (Criminal) No. 565 of 2020. This Petition, which
came to be heard upon an urgent mentioning before the
concerned Court was seeking, inter alia, registration of FIR
against three Bhartiya Janata Party (BJP) leaders, Kapil Mishra
and the proposed accused persons in the Complaint of the
Petitioners herein. When the matter was taken up by this
Hon’ble Court on 26.02.2020, this Hon’ble Court directed the
Special Commissioner of Police (present in court at such
hearing) to take immediate action on the inflammatory speeches
made by the accused persons, amongst others; and accordingly
place such decision before the Court. The matter was listed the
very next day on 27.02.2020, given the urgent and grievous
concerns brought out by the said Petition. Thereafter, on
27.02.2020, this Hon’ble Court issued notice to the
16

Respondents, and granted time to the Union of India to file a
detailed counter affidavit and adjourned the matter to
13.04.2020. True copies of Orders dated 26.02.2020 and
27.02.2020 passed by this Hon’ble Court in WP(C)
No.565/2020 titled Harsh Mander v. State are annexed herewith
and marked as Annexure P-9 (Colly).
12. On 02.03.2020, when the matter was listed for orders, the Ld.
ACMM, in view of the pendency of the writ petition seeking
similar reliefs against the accused persons before this Hon’ble
Court, deemed it appropriate not to direct registration of an FIR
till the outcome of the said writ petition, and adjourned the
matter to 23.04.2020. Thereafter, the matter was adjourned from
time to time on account of the lockdown. True Copy of Order
dated 02.03.2020 is annexed herewith and marked Annexure
P-10.
13. Aggrieved by the Order dated 02.03.2020 passed by the Ld.
ACMM, Complainants preferred WP (Crl) No.670/2020 before
this Hon’ble Court, seeking directions / liberty to the Ld.
ACMM to pass Orders on the Petitioners’ Application under
S.156(3) CrPC. This Hon’ble Court, vide Order dated
05.08.2020, was pleased to direct the Ld. ACMM to dispose the
Petitioners’ Application under Section 156(3) CrPC. True copy
of Order dated 05.08.2020 passed by this Hon’ble Court in WP
(Crl) No. 670/2020 is annexed herewith and marked Annexure
P-11.
14. Brief facts giving rise to the Police Complaint of the Petitioners
are as follows:
a. On 27.01.2020, Accused No.1 gave a speech during a rally
in Rithala, Delhi where he repeatedly led a chant of “desh
ke gaddaron ko, goli maaron saalon ko”. The video of this
speech and the statements of Accused No.1 were widely
publicized on several news outlets and shows Accused
17

No.1 inciting and instigating the large crowd present at the
rally which included his supporters and BJP members to
attack and shoot people who are protesting against the CAA
and NRC, by referring to the protestors as ‘gaddars’ or
traitors. The exhortation to violence is evident in the fact
that Accused No.1 repeatedly chanted the slogan, “desh ke
gaddaaron ko”, getting progressively louder and more
animated and was given an enthusiastic response “goli
maaro saalon ko” each time from the assembled crowd.
Accused No.1 is also seen calling upon BJP supporters to
shout the slogan so that it is more audible to the other office
bearers present at the rally, including Union
Minister, Mr. Giriraj Singh among others. Notably, it
cannot be anyone’s case that such speeches were given in
the course of performance of official acts. The news reports
on Times of India and NDTV on the speech given by
Accused No.1 are already annexed to the 156(3)
Application. A copy of the video showing Accused No.1’s
speech published by India Today is annexed herewith and
marked as Annexure P-12.
b. Accused No.1 is a young and influential member of the
BJP, and has a considerable following on all his social
media. As an elected representative holding a powerful
position, Accused No.1 exerts considerable influence over
the masses and hence his statement is a direct instigation to
mobilise the masses to commit violence.
c. On 27.01.2020 while giving a campaign speech at
Vikaspuri, Accused No.2, an influential BJP MP from the
West Delhi Lok Sabha Constituency, having won a second
term in office with the highest recorded victory margin for
that constituency, openly threatened the protestors at
Shaheen Bagh. Accused No.2 claimed that if the BJP is
elected in Delhi, Shaheen Bagh would be cleared within
18

one hour, a statement that is clearly a threat to use force
against peaceful protestors at Shaheen Bagh, majority of
whom belong to the Muslim community. He also
threatened to demolish mosques making the statement that
if BJP is elected in Delhi, all existing mosques built on
government land will be demolished. These speeches were
made as part of a campaign speech by an elected
representative, and are evidently communal and intended
to incite enmity, hatred and violence against the Muslim
community and towards all those exercising their
legitimate right to protest against government policies.
d. Thereafter, on 28.02.2020, Accused No.2 gave an
interview to ANI which can be found on the official Twitter
handle of ANI as well as in several news reports. A copy
of the video of the interview of Accused No.2 available on
the officer ANI Twitter handle is annexed herewith and
marked as Annexure P-13. During this interview, referring
to the protestors at Shaheen Bagh, Accused No.2 has made
the following statement:
“laakhon log ikkhatte hote hai [Shaheen Bagh]…Yeh
log aapke gharon mein ghusenge, aap ki behen
betiyon ko uthaienge, unko rape karenge, unko
marenge. Isiliye aaj samay hai. Kal Modi ji nahin
aayenge bachane, kal Amit Shah ji nahin aayenge
bachane…”
e. The Shaheen Bagh protests were attended by a large
number of women, majority of whom belong to the Muslim
community. The Shaheen Bagh protest was widely
accepted as a peaceful protest, where the protestors uphold
the values of the Constitution of India primarily the ideals
of secularism and democracy which are core tenets of the
Indian nation. None of the protestors are alleged to have
called for any violence or issued any threats, and in fact,
have preached non-violence and adherence to the law while
exercising their constitutional right to protest. The
19

aforesaid statement of Accused No.2, is hence provocative
and deliberately intended to incite hatred and enmity
against members of a particular community by portraying
them as dangerous invaders. The intention of Accused No.2
to promote ill-will and communal tension in the minds of
Hindus against Muslims is evident in the deliberately false
and incendiary and statements of Accused No.2. By
making these statements, Accused No.2 has directly
endangered the lives of the Shaheen Bagh protestors.
Copies of the news reports on the hate speeches of Accused
No.2 are already annexed with the Application under
Section 156(3) CrPC.
f. Subsequently, the Election Commission of India (ECI)
passed an order on 29.01.2020 taking cognizance of the
seriousness and gravity of the hate speeches of Accused
Nos. 1 and 2, and made a preliminary finding that the
speeches were a violation of various provisions of the
Model Code of Conduct for Political Parties and Candidate.
The ECI in its order dated 29.01.2020 passed an order that
the accused persons would no longer be treated as ‘leaders’
(star campaigners) for the purposes of Explanation (l)(a) to
sub-section (1) of Section 77 of the Representation of the
People Act, 1951. True copy of the ECI Order dated
29.01.2020 is annexed with the Application under Section
156(3) CrPC.
g. As a direct consequence of these speeches by the accused
persons, an outfit calling itself Hindu Sena issued a press
release on 29.01.2020 threatening the protestors at Shaheen
Bagh making allegations that “the people assembled at
Shaheen Bagh are speaking the language of Pakistan” and
issued a call to violence asking organisations and general
public to use force to remove the protestors from Shaheen
Bagh on 02.02.2020. True copy of the IndiaToday news
20

report dated 29.01.2020 which replicated the Hindu Sena
press release is already annexed to the Application under
Section 156(3) CrPC.
h. On 29.01.2020, the Petitioners addressed a complaint to the
Commissioner of Police against Accused Nos.1 and 2,
seeking immediate registration of FIR for the hate speeches
made by the accused persons. The Petitioners also
addressed a follow-up representation to the Commissioner
of Police in view of an incident of violence at JMI on
31.01.2020 reiterating their request for an immediate
registration of FIRs against Accused Nos. 1 and 2 for the
cognizable offences committed by them under Sections
153A/53B/295A/298/504/505/506of the IPC, amongst
others. True copy of the letters dated 29.01.2020 and
31.01.2020 are already annexed to the 156(3) Application.
i. On 30.01.2020, the ECI issued separate orders against
Accused Nos. 1 and 2, barring them from campaigning for
the Delhi elections for a period of 72 hours and 96 hours,
respectively. The ECI, in its order noted that the statements
had the “potential to aggravate existing differences and
create mutual hatred between different religious
communities” in violation of the provisions of the Model
Code of Conduct and the Representation of the People Act,
1951, particularly Section 123(3A) and Section 125 which
provides that a person who in connection with an election
promotes or attempts to promote on grounds of religion
shall be punishable with imprisonment for a term which
may extend to three years, or with fine, or both. Copies of
the ECI orders dated 30.01.2020 are already annexed to the
156(3) Application as Annexure P-9 and P-8, respectively.
It is pertinent to note that neither of the accused persons has
challenged the decision of the ECI or denied that they had
committed the offences as specified herein. The orders of
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the ECI are prima facie recognition of the commission of
hate speeches by the accused persons.
j. On 30.01.2020, a man who identified himself as
“Rambhakt Gopal”, shot directly at students protesting
outside JMI and injured one student, allegedly in full view
of the Delhi Police who stood by as mute spectators. The
shooter posted updates on Facebook moments prior to the
attack including statements like “Shaheen Bagh…khel
khatam”. This attack is directly attributable to the
instigation of both the accused persons, especially Accused
No.1 who openly exhorted his supporters to shoot the
protestors. True copy of the news reports on Scroll.in and
the Week dated 30.01.2020 on the attacker who shot at
protestors outside JMI are already annexed to the 156(3)
Application.
k. On 31.01.2020, BJP posted a video on its official Instagram
handle wherein pictures of protestors and protest sites
including Shaheen Bagh were featured, with slogans like
“samay aa gaya chalo nikalein dilli se dharne waalon ko
(Time has come to remove protestors from Delhi)” and “toh
jawab do unko dilli, tang karte Shaheen Bagh se (the Delhi
people should give a strong answer to protestors at Shaheen
Bagh). The video is evidently inflammatory and constitutes
a threat towards the Shaheen Bagh protestors. A true copy
of the video is already annexed to the 156(3) Application.
l. In yet another incident of shooting, on 01.02.2020 just days
after the speeches by these persons, a man fired shots at
Shaheen Bagh close to a large crowd of unarmed protestors
and was heard saying “Humare desh mein sirf Hinduon ki
chalegi aur kisi ki nahi (in our country only Hindus will
prevail)”. True copy of the news report on NDTV on the
shooter who opened fire at Shaheen Bagh dated 01.02.2020
is already annexed to the 156(3) Application.
22

m. On 02.02.2020, the Chief Minister of Uttar Pradesh, Ajay
Bisht / Yogi Adityanath, while campaigning for BJP in
Delhi, made incendiary innuendos/ statements that the
Delhi Chief Minister, Arvind Kejriwal “supplies biryani”
to protesters at Shaheen Bagh and that they instead ought
to be fed bullets instead of biryani. It is evident that this
statement is deliberately targeted at the Muslim
community, since the innuendo of biryani was aimed at the
Muslim community, and this statement is hence a brazen
and open threat to commit violence against them.
n. On 02.02.2020, the Petitioners addressed a letter to the
SHO, Parliament Street Police Station enclosing the letters
dated 29.01.2020 and 31.01.2020, disclosing that yet
another incident of violence, namely the shooting at
Shaheen Bagh, took place since the filing of their complaint
and requested that FIRs immediately be filed against the
accused persons.
o. On the night of Sunday, 02.02.2020, two unidentified
gunmen fired shots near Jamia Milia Islamia where a large
number of protestors were gathered.
p. On 04.02.2020, a mob of people chanting “desh ke
gaddaron ko, goli maaron saalon ko” aggressively and
threateningly approached protestors at Jamia Milia Islamia.
q. Accused No.2 made “vitriolic aspersions” against the Delhi
CM, Arvind Kejriwal, accusing him of being a “terrorist”
for standing in support of the Shaheen Bagh protestors. The
ECI issued an order dated 05.02.2020 against Accused
No.2 strongly condemning him for the aforesaid statements
and barring him from campaigning for BJP for 24 hours,
for violating the provisions of the Moral Code of Conduct
r. The Application under S.156(3) CrPC was heard on
05.02.2020, and the Ld. ACMM called for the ATR from
23

the DCP, District New Delhi/DCP concerned returnable on
11.02.2020.
s. The Deputy Commissioner of Police, New Delhi filed a
status report on 11.02.2020 pursuant to the order of the Ld.
ACMM of 05.02.2020, stating that the Complaint is being
dealt with by the Special Investigation Unit of the Crime
branch in the Rohini District and that the complaints of the
Petitioners along with the order dated 05.02.2020 have
been forwarded there for further compliance. On the same
day, the SI, Crime Branch filed a status report that two
separate FIRs had been registered in relation to the
incidents of shooting at JMI and Shaheen Bagh and the
perpetrators had been arrested, and sought for 8 weeks’
time to conclude the enquiry and submit a report on the
present complaint. Taking note of the fact that the such
statements are being made on a regular basis and
contributing to the already volatile situation, Ld.
Magistrate declined to grant 8 weeks for filing status report,
and granted the ISC, Crime branch 15 days to file the same.
t. On 11.02.2020, BJP MP, Ramesh Bidhuri said there is
nothing wrong with saying that traitors should be shot.
Identifying protestors as ‘traitors’, Mr. Bidhuri said “what
is wrong with saying that traitors should be shot. After all,
are such people not hanged after being tried”. On
13.02.2020, Mr. Amit Shah made a statement at the Times
Now Summit 2020 denouncing the hate speech of Accused
No.1 and stated that statements like “goli maaro” and
“Indo-Pak match” should not have been made by BJP
leaders while campaigning for Delhi elections. Similarly,
Delhi BJP President, Manoj Tiwari admitted in an
interview that the BJP made hate speeches including
statements like “goli maaro” and that those who make such
speeches should be permanently removed.
24

u. On 23.02.2020, Kapil Mishra threatened to take the streets
and gave a three-day ultimatum to the Delhi Police to clear
the streets. He issued a call through Twitter urging people
to prevent another Shaheen Bagh protest from taking place
near the Jaffrabad metro station, where a number of
protestors, many of whom are women, had peacefully
gathered to protest against CAA and NRC. Minutes after
this speech, the worst communal violence broke out in
North-East Delhi, including in Chandbagh, Bhajanpura,
Gokulpuri, Karawal Nagar, Jaffrabad and Maujpur, where
Muslims were systematically targeted. Videos circulated of
the violence show large number of rioters mercilessly
killing, beating up Muslim persons, while chanting “Jai
Shri Ram” and “Hinduon ka Hindustan”. Houses and shops
belonging to Muslim persons were specifically targeted,
and the mob looted, vandalized and set fire to these
establishments. Several mosques and masjid were also
demolished. The violence has continued for over 3 days,
and over 40 people have died and over 300 people have
been injured.
v. On 25.02.2020, while the violence against Muslim persons
was ongoing, BJP MLA, Abhay Verma led a march in
Lakshmi Nagar with the slogan “goli maaro saalo ko” and
“Jo Hindu hit ki baat karega, wohi desh pe raj karega”.
Evidently such incidents of violence are a direct result of
the incendiary and communal statements as well as the
threats of violence and criminal intimidation made by the
accused persons, which has put the lives of innocent
civilians in great danger.
w. On 29.02.2020, a mob of people was aggressively chanting
“desh ke gaddaron ko, goli maaro saalon ko” during rush
hour at New Delhi’s busiest metro station, Rajiv Chowk
metro station, following which six people were detained.
25

On 02.03.2020, BJP supporters marching in procession to
Union Home Minister, Amit Shah’s rally in Kolkata were
heard shouting the “goli maaro” slogan. It is evident that
following the speeches made by the accused persons and
the lack of repercussions for such blatantly communal and
incendiary hate speeches by the accused persons, more and
more people, including political leaders as well as general
public have been emboldened to issue brazen threats to
commit violence against people, specifically Muslim
persons and protestors.
15. It is submitted that the acts of the accused persons, originating
from the two speeches/ utterances complained of, have found
vitriolic repetition from members of the ruling dispensation, and
have found implicit and explicit sanction from the Centre as well
as from the Delhi Police. It is due to a failure of Governmental
and Investigative authorities to act against such directly
communal and incendiary speeches, that the same have been
repeated across the board and may even have precipitated the
violence in North-east Delhi. If properly investigated, the police
would even find it appropriate to include charges of abetment to
murder, grievous hurt and rioting against the Accused persons.
Instead, ignoring the directly communal speeches and
incitement to violence, the Police have held various students and
activists culpable for the violence in North-East Delhi and have
wrongly described speeches and calls for peaceful protest as
being incendiary.
16. In such circumstances, where the State and the Police have
pointedly excused the speeches of the Accused and other
persons, the Petitioners submit that the only recourse available
to them is judicial. The Petitioners’ judicial recourse has been
barred by the Ld. ACMM without considering that the very State
that is supportive of the Accused persons (who are sitting
Members of Parliament) would function as the Sanctioning
26

Authority. Public policy and the interest of justice demand that
this Hon’ble Court form a view on the content of the speeches
given by the Accused on the basis of settled law and opine
whether cognizable offence is made out thereupon. Petitioners
are therefore approaching this Hon’ble Court seeking exercise
of inherent powers to set aside the Impugned Order and further
to direct registration of an FIR on the Complaint of the
Petitioners forthwith.
17. In any case, and without prejudice to the rights and contentions
of the Petitioners in the present Petition, Petitioners are also
applying to the appropriate authority for Sanction under S.196
CrPC, such that they may then exercise the option of preferring
a Complaint under Section 200 read with Section 156(3) CrPC
before the Ld.ACMM-01. It is submitted, however, that the
present Petition involves substantial questions of law and public
policy, and this Court may proceed to decide the same
expeditiously.
18. The Petitioners are moving the present Petition on inter-alia the
following grounds, which are without prejudice to one another.
GROUNDS
A. FOR THAT the Impugned Order passed by the Ld. ACMM is
perverse and against the tenets of law. It places reliance on two
judgments of the Hon’ble Supreme Court, being Anil Kumar and
L. Narayana Swamy, which are not applicable in the present case
and further contrary to judgments of co-ordinate benches, and
larger benches of the Hon’ble Supreme Court as to the fact that
no cognizance is taken at the stage of passing directions under
Section 156(3) CrPC, and accordingly, that no sanction is
required at such stage.
B. FOR THAT the Ld. ACMM, as also this Hon’ble Court, are both
empowered under law to rely upon judgments of larger bench
strength/ coordinate bench strengths of the Hon’ble Supreme
27

Court, and there is no compulsion to follow findings of the
Hon’ble Supreme Court, without appreciating the correctness of
such findings when seen in light of such larger bench/ coordinate
bench decisions. It is settled law that a Hon’ble High Court,
when confronted with contrary decisions of the Supreme Court
emanating from Benches of coequal strength, is not necessarily
bound to follow the decision later in point of time, but must
follow the one which in its view is better in point of law.
C. FOR THAT the Impugned Order erroneously dismisses the
Petitioners' application under Section 156(3) CrPC on the
ground that a prior sanction is required whereas as per Section
196 CrPC, the requirement of obtaining a prior sanction is only
at the stage of cognizance and not at the stage of registration of
FIR.
D. FOR THAT a plain reading of Section 196 CrPC demonstrates
that the sanction to be taken thereunder is a sanction for taking
cognisance. It is settled law that no sanction is required under
either Section 195 or 196 CrPC for the registration of an FIR
and/or for investigation.
E. FOR THAT if the requirement of prior sanction while filing an
Application under Section 156(3) CrPC would be given judicial
imprimatur by this Hon’ble Court, then it would lead to an
undesirable circumstance where such sanction would be on the
basis of materials that are de hors:
a. Evidence/ documents gathered during investigation by an
investigating agency competent so to do;
b. Statements recorded under Section 161 CrPC by an
investigating agency competent so to do;
c. Statements recorded under Section 164 CrPC at the
instance of an investigating agency competent so to do;
28

d. A draft charge-sheet prepared by an investigating agency
competent so to do;
Moreover, it is evident that there cannot be two sanctions under
law, one prior to the FIR, and the second after completion of
investigation.
F. FOR THAT the Ld. ACMM has failed to account for the
language of Section 196 CrPC and the contrasting provision
under Section 132 CrPC. The latter provision clearly specifies
that there can be no prosecution against a person for offences
under Sections 129, 130 or 131 except with prior sanction of the
Central Government. However, the bar under Section 196 is not
applicable to initiation of prosecution but only to taking
cognizance. The Supreme Court in Ram Kumar v. State of
Haryana reported in 1987 SCR (1) 991 has clearly held that the
sanction under Section 132 CrPC acts as a bar for registration of
a complaint by the Complainant whereas, the sanction under
Section 197 CrPC acts as a bar for taking cognizance and trying
the accused. Any other interpretation of Section 196 and 197
CrPC would render the words of the provision meaningless.
G. FOR THAT the Ld. ACMM failed to take into account the
decision of the Hon’ble Supreme Court in the case of State of
Karnataka and Anr. v. Pastor P. Raju reported in (2006) 6 SCC
728, where it was categorically held that there is no bar against
registration of an FIR under Section 196 CrPC. The said case
categorically held sanction is required to be obtained only prior
to taking cognizance of an offence and not prior to registration
of an FIR.
H. FOR THAT the Ld. ACMM has failed to account for the catena
of decisions of the Hon’ble Supreme Court where it has been
conclusively decided that proceedings under Section 156(3)
CrPC would not amount to taking cognizance of an offence.
29

I. FOR THAT a 3 Judge Bench of the Hon’ble Supreme Court in
the case of Gopal Das Sindhi v. State of Assam reported in AIR
1961 SC 986 has held that the bar under Section 190 CrPC
would come into play only if a Magistrate is taking cognizance
of an offence, and not when a complaint is sent under Section
156(3) for investigation by the police.
J. FOR THAT it is settled law that an order of a Magistrate
directing registration of a case under Section 156(3) CrPC is in
the nature of a peremptory reminder or intimation to the police
to conduct an investigation, and is a follow up to non-
registration of an FIR despite intimation under Section 154(1) or
Section 154(3). and does not amount to taking cognizance of an
offence. (Samaj Parivartan v. State of Karnataka reported in
2012 7 SCC 407 and Anju Chaudhry v. State of Uttar Pradesh
and Anr. reported in 2013 6 SCC 384).
K. FOR THAT such requirement of prior sanction at the stage of
Section 156(3) would impose a fetter on the powers of a Ld.
MM/ Special Judge, and would lead to a peculiar circumstance
where an investigating agency may register an FIR without
sanction under Section 154(1) or 154(3) CrPC, but a Ld. Judicial
Officer would not have powers to so direct registration of an
FIR.
L. FOR THAT the Ld. ACMM, while passing the Impugned
Judgment, failed to note that both Anil Kumar and L. Narayana
Swamy, were judgments emanating out of the Prevention of
Corruption Act, 1988, and the peculiarities associated with such
Acts were even noted by the Ld. ASG (as he then was) in Manju
Surana.
M. FOR THAT the Ld. ACMM has erroneously relied on the case
of Anil Kumar v. MK Aiyappa, reported in (2013) 10 SCC 705
30

to hold that, in the absence of prior sanction, the Petitioners’
Application under Section 156(3) CrPC is not maintainable. The
decision in Anil Kumar is not applicable to the facts of the
present case since the finding therein deals with the requirement
of a sanction under Section 19 of the PC Act. The Ld. ACMM
has erred in that the judgement and the finding therein concerns
sanction under Section 19 of the Prevention of Corruption Act,
1988 and not under the CrPC. The finding of the Court is
therefore distinguishable on facts, since offences under the
Prevention of Corruption Act are technical in nature and deal
with allegations against a public servant and would hence
require a higher evaluation standard. The decision in Anil Kumar
followed by the decision in L. Narayana Swamy v. State of
Karnataka reported in 2016 9 SCC 598, are therefore specific to
the allegations under Section 19 of the Prevention of Corruption
Act and are not applicable to the facts of the present case.
N. Furthermore, without prejudice to the preceding grounds, if the
aforementioned finding in Anil Kumar is held applicable to
cases other than under the PC Act, the said ratio would be per in
curium in view of settled law. As demonstrated above in a catena
of decisions, it is settled that proceedings under Section 156(3)
CrPC directing registration of FIR would not amount to taking
cognizance of an offence and the requirement of obtaining a
sanction under Section 196 CrPC is only applicable at the time
of taking cognizance and not at the time of registration of an
FIR.
O. FOR THAT applying the rule laid down in the Anil Kumar
(supra) case to proceedings under the CrPC and not just under
the Prevention of Corruption Act, would result in gross and
manifest injustice, where a person aggrieved by police inaction
would first have to seek sanction from the State, and only then
approach the Court under Section 156(3) CrPC. This is
31

particularly true in the instant case, which sought registration of
an FIR for offences relating to hate speech uttered by two
Members of Parliament. In this case, the content of the
inflammatory speeches and the fact of whether they were made
has not been disputed by the accused persons. However, despite
the filing of a complaint on 29.01.2020, and prompt filing of an
application under Section 156(3) CrPC, no action has been taken
by the police and no decision on merits has been passed till date,
despite there being detailed arguments on merits, delaying the
registration of an FIR by several months. This is contrary to the
maintenance of public order and policy and further severely
hinders access to justice. It also places an unjustified fetter on
the powers of the Magistrate under Section 156(3) CrPC, which
is contrary to the intent of the legislature as elucidated in a catena
of judgments.
P. FOR THAT the Supreme Court in Manju Surana v. Sunil Arora
and Ors, reported in (2018) 5 SCC 557 further clarifies the
position in respect of the requirement for Sanction and impliedly
limits the application of the finding in Anil Kumar (supra) to
cases under the Prevention of Corruption Act only. The bench
in Manju Surana, after extensive discussion, referred the
“conundrum arising in respect of the interplay of the PC Act
offences read with CrPC”, that is, whether sanction under S.19
PC Act is a prerequisite to maintain an Application under
S.156(3) CrPC, to a larger bench. It is submitted in view of the
differentiation in the requirement of obtaining a sanction under
the Prevention of Corruption Act and under the CrPC, the Ld.
ACMM erred in holding that the finding in Anil Kumar (supra)
would be applicable to the present case, where the Petitioners
had merely sought the registration of an FIR against the accused
persons.
32

Q. FOR THAT the Court of Sh. Vishal Pahuja, Ld. ACMM-01,
Rouse Avenue Court is a Designated Special Court to deal with
cases against elected MPs/MLAs. It is the competent Court to
deal with applications under Section 156(3) CrPC in respect of
Complaints against elected MPs. There is no fetter to this power
on the administrative side or, as demonstrated above, on the
judicial side. To read such a fetter into the operation of Section
156(3) CrPC would render this Special Court otiose in respect
of a number of cases seeking registration of an FIR against MPs
/ MLAs.
R. FOR THAT if the rationale behind the Impugned Order is
permitted to stand, then no Application under Section 156(3)
CrPC would be maintainable before any Court within the
territorial jurisdiction of this Hon’ble Court, in respect of
offences for which sanction is required to be taken prior to
cognizance.
S. FOR THAT it is settled law that this Hon’ble Court has the
power of superintendence and control over subordinate courts
within its territorial jurisdiction, under Section 483 CrPC/
Article 227 of the Constitution of India. It is submitted that
technical objections to maintaining an Application under
Section 156(3) CrPC ought to be decided at the threshold to
avoid wastage of precious judicial time and so that the
Complainant is not unduly delayed in accessing justice.
Furthermore, without prejudice to the Petitioners’ contention on
the position of law, this Court may elucidate the essential
requirements for maintaining an application under Section
156(3) CrPC for the sake of certainty.
T. FOR THAT the absence of any practice directions or any
judgement of the Hon’ble Supreme Court that carves out an
exception or adds to the law as laid down in Priyanka Srivastava
33

v. State of UP or the Constitution Bench decision in Lalita
Kumari v. State of UP, there is evidently no requirement for
sanction as stated in the Impugned Order.
U. FOR THAT without prejudice to the Petitioners’ primary
contention that Complainants are not required to obtain sanction
to obtain directions under S.156(3) CrPC from the concerned
Court, it is submitted that the directions ought to be issued under
Article 226 of the Constitution to the Respondent No.1/ State to
publicize the manner in which such prior sanction can be
obtained by a complainant/ applicant, to ensure expeditious
disposal of any such proposed applications. The said directions
are warranted since, although sanction is not required for
registration of FIR / to entertain an Application under S.156(3)
CrPC, sanction may be required in case a complainant wishes to
press a private complaint under Section 200 CrPC before the
concerned Court as an alternative remedy.
V. FOR THAT the Ld. ACMM ought to have directed registration
of FIR in terms of statutory mandate, as also under Lalita
Kumari v. State of UP reported in (2014) 2 SCC 1, where it was
held that the registration of FIR is mandatory under Section 154
CrPC if the information discloses the commission of a
cognizable offence and no preliminary investigation is
permissible. The Ld. ACMM is only required to satisfy that the
Petitioners have met the requirements set out in Sakiri Vasu v.
State of Uttar Pradesh and Ors. reported in (2008) 2 SCC 409,
which have admittedly been met in the present case.
W. The Petitioners / Complainants in the present case, already
aggrieved at the failure of the Police to register an FIR for the
commission of cognizable offences amounting to hate speech,
have now been relegated to attempting to seek sanction from the
State / Centre, a sanction which is a statutory requirement
34

for taking cognisance, not investigation. The Complainant is
effectively being asked to step into the shoes of the investigating
agency and make a case for prosecution before the Sanctioning
Agency. Furthermore, any Application for Sanction by the
complainant would be without the benefit of materials and
evidence obtained during investigation. As the Sanctioning
Authority is obligated to apply its mind to the materials and
evidence before it, the Complainant is in a catch-22, where there
can be no investigation without sanction, and no sanction
without adequate evidence.
X. FOR THAT the Ld. ACMM failed to take into account the
decision of the Hon'ble Supreme Court in Pravasi Bhalai
Sangathan v. Union of India reported in (2014) 11 SCC 477
where it was categorically that hate speech is determined by the
likely effect of the speech on an audience and that the intention
to incite hatred is irrelevant. The Supreme Court further noted
that hate speech is an effort to marginalize individuals and
expose them to hatred on the basis of their membership in a
group, which lays the groundwork for later broader attacks from
ostracism to outright violence and genocide.
Y. FOR THAT there can be no doubt that accused persons made
the aforesaid hate speeches in a huge public gathering while
campaigning for the Delhi elections on behalf of BJP and that
the ECI immediately took cognizance of the hate speeches and
banned them for the same. The incendiary nature of the hate
speeches is apparent from the prompt action and penalisation of
the accused persons by the ECI.
Z. FOR THAT the Report of Delhi Minorities Commission Fact
Finding Committee on the North-East Delhi Riots of February
2020 published in July 2020 (“DMC Report”), while
specifically noting the role of the accused persons herein, found
35

that the violence that broke out in North-East Delhi in February
2020 was clearly preceded and incited by BJP leaders. The DMC
Report also noted that the sloganeering by Accused No.1
amounted to ‘asking an entire election rally to fire bullets at the
country’s “traitors” within the oblique but not unmasked
reference to a particular minority community’.
AA. FOR THAT it is not in dispute that multiple incidents of
violence took place and threats were issues specifically targeting
persons of the Muslim community and protestors, including
multiple incidents of shooting near Shaheen Bagh and near
Jamia Millia Islamia University. Further, there were widespread
and frequent repetitions of the incendiary and threatening
slogans, including by BJP politicians, so much so that other BJP
members such as Amit Shah, Minister of Home Affairs, Gautam
Gambhir and Manoj Tiwari acknowledged the inflammatory
nature of such speeches and said that statements such as 'goli
maaro' should not have been uttered.
BB. FOR THAT the Ld. ACMM failed to take into account the
decision of this Hon'ble Court in Sandeep Kumar v. GNCTD,
reported in 2016 SCC OnLine Del 2536, where this Court held
that ‘goli maro’ is an exhortation to shoot and upheld the
conviction of an accused on whose exhortation a co-accused had
shot a victim. The multiple incidents of violence including and
up to the riots in February are directly attributable to the
exhortation of Accused No.1, who an elected representative who
exercises a significant amount of influence over his voters.
CC. FOR THAT the Ld. ACMM failed to consider the decision of
the Hon'ble Supreme Court in Babu Rao Patel v. State (Delhi
Administration), reported in (1980) 2 SCC 402, where it was
held that the portrayal of the minority Muslim community as a
community with a tradition of rape, loot, violence and murder is
36

hate speech and promotes feelings of enmity, hatred and ill-will
against the Muslim community. The statements of Accused
No.2 fall squarely within this description and clearly constitute
hate speech under the provisions of the IPC. Moreover, even this
Hon’ble Court is empowered to direct registration of FIR if the
allegations are such that cognizable offences are ex facie made
out, and if it is observed that the investigating agency is
displaying unjustified unwillingness to proceed in terms of law.
DD. FOR THAT the widespread chant of the accused persons'
incendiary slogans culminated in the brutal violence that broke
out on 23.02.2020 in North-East Delhi minutes after yet another
provocative and incendiary speech by BJP leader Kapil Mishra
who openly threatened to forcefully remove protestors from
Jaffrabad metro station. During this violence which continued
for several days, Muslim persons were specifically targeted,
mercilessly beaten, killed and their homes, places of worship
and livelihood were looted and razed by a large mob chanting
incendiary slogans, including that of the Accused persons.
EE. FOR THAT it is evident that the likely effect of the incendiary
statements of the accused persons was to stoke communal
tensions and exhort people to take up arms against persons of a
certain community.
FF. FOR THAT the status report filed by the Investigating Agency
before the Ld. ACMM would itself indicate the nature and extent
to which the Investigating Agency is shielding the accused
persons. The subsequent stand of the investigating agency
before this Hon’ble Court as recorded in judicial orders also begs
the question as to the present stand of the investigating agency
as to the speeches in question. As such, this Hon’ble Court ought
to direct the Investigating Agency, during the pendency of the
present Application, to place on record its stand in respect of the
37

wholly incendiary speeches complained of in the subject
Application, as also those delineated hereinabove.
GG. FOR THAT the Investigating Agency has failed to take into
account its bounden duty of prevention of crime. By failing to
act to stop the repetitive utterances of the incendiary speeches of
the accused persons, the investigating agency has failed to
prevent occurrences of the same kind of crime within the State
of Delhi, NCT.
HH. FOR THAT it is settled law that a writ of certiorari would lie if
a Ld. Judicial Authority passes an Order wholly without
jurisdiction/ fails to act in terms of jurisdiction expressly vested
in such Authority.
II. FOR THAT the failure of the investigating agency in curtailing
the commission of such hate speeches, has invariably led to
normalization of such provocative chants and slogans and
emboldened many people to openly threaten and take up arms
against persons of a certain community. This has invariably led
to several incidents of violence and marginalization,
culminating in the brutal violence that broke out on 23 February
2020 targeting persons of the Muslim community and protestors
which caused large-scale destruction of life and property.
19. The Petitioners state that the present Petition is maintainable
under Article 226/227 and S.482/483 as Petitioner is seeking
firstly the quashing of the Impugned Order and the issuance of
directions as well as mandamus under Article 226 to the State,
in exercise of this Hon’ble Court’s extraordinary as well as
supervisory jurisdiction. No other Petition has been preferred by
the Petitioners, and as such, no other Petition is pending before
any other Court of law, assailing the Impugned Order herein.
The present Petition is bona fide and in the interest of justice.
38

20. PRAYER
In the facts and circumstances described hereinabove, it is most
respectfully prayed that this Hon’ble Court be pleased to:
i. Pass a Writ of Certiorari setting aside/ quashing Order
dated 26.08.2020 passed in Brinda Karat & Anr. v. State,
Ct. Cas. No. 04/2020, by the Ld. Additional Chief
Metropolitan Magistrate (I), Rouse Avenue Courts, Delhi;
and
ii. Without prejudice to Prayer (i), exercise jurisdiction under
Article 227 read with S.483 CrPC directing expeditious
disposal of Applications under Section 156(3) CrPC and
direct that technical objections and maintainability be
decided at the threshold to avoid prejudice to the
Complainant and wastage of judicial time; and
iii. Issue directions in the nature of a writ of mandamus under
Article 226 of the Constitution to the Respondent State to
widely publicize the manner in which such prior sanction
can be obtained by a complainant / applicant preferring a
Complaint under Section 200 CrPC, for the offences
mentioned in Ss. 195 and 196 CrPC, to facilitate access to
justice; and
iv. Pass such other Order(s) as this Hon’ble Court may deem
fit in the facts and circumstances of the case.
PETITIONERS
THROUGH:
TARA NARULA, ADIT PUJARI, APARAJITA SINHA,
TUSHARIKA MATTOO, CHAITANYA SUNDRIYAL
ADVOCATES FOR THE PETITIONERS
H-32 Jangpura Extension (LGF), New Delhi – 110014
(m) +91 9810037337 |tara@narulaandassociates.com
NEW DELHI, 03.10.2020
39

BRINDA KARAT AND ANR.
AND ANR.
Versus
IN THE MATTER OF:
...PETITIONERS
...RESPONDENTS
AFFIDAVIT
l. Brinda Karat, aged about 72 years, wife of Prakash Karathaving
my office at 27-29, Bhai Vir Singh Marg, New Delhi, do hereby
solemnly affirm and declare as under:
1. That I am Petitioner No. Iin the above noted case and am well
conversant with the facts and circu mstances of the present
case. As such I am competent to swear the present affidavit.
2. That the accompanying Petition u nder Article 227 of the
Constitu tion of India read with Section 482 of the Code of
Criminal Procedure, 1973 has been drafted under my
instructions and the same has been read over to me in
vernacular and understood by me and l say that the
averments made therein are true on the basis of the records
and the contents of the same are true and correct to the best
of my knovvledge and belief.
3. That the contents of the Iist of dates are drafted by my
cou nsel which are true to the best of my k.110,,vledge and are
r
derived fom the records maintained by me.
4. That the contents of para 1 to 19 of the accompanying ,,vrit
petition are true to my personal knowledge and para A to y
are the grounds and legal submissions which are based on the
legal advice by my counsel, which I believe to be true and
para 20 is the prayer clause. Nothing material has been
concealed thercrrorn and no part of it is false.
40

5. That the accompanying annexures are true/typed copies of
their originals.
6. That the Deponent has not preferred any similar or other
petition in the above-mentioned matter.
bhgchonl
Identify
t h e
Deponent
w h o
h a s
Signed
i n
m y
Presence
DEPONENT
VERIFICATION:
03 OCT 202
Verified at New Delhi on this the day of October 2020 that the
contents of the above affidavit are true and correct to my
knowledge no part of it is false and nothing material has been
concealed therefrom.
AR
hnSelban
DEPONENT
RAMRAMAALSINGH
DAAH
Regd. 6973
Valid upto p-22
GERTIFIED THAT THE REPONENTShri/Smt./Km.z.y.MAA..KsAA..S/o, W/o, D/o.1.6}ksAnkayrAtAa
R/o....
d6ntifie h./Smt..
nas Si iy atiI N D
030CT 202U
*****************
0n.
that the
cOmeni '1 dvitwhjeh Acwnave been rea:
ained tohim are
rueand Correct
eKnowiedge.
NotarPoblic, Delhi (INDIA)
41

IN THE MATTER OF:
BRINDA KARAT AND ANR.
AND ANR.
Versus
AFFIDAVIT
...PETITIONERS
...RESPONDENTS
I, KM Tewari s/o RP Tewari, aged about 66 years, residing at 14
Vithalbhai Patel House, Rafi Marg, New Delhi, do hereby
solemnly affirm and declare as under:
1. That I am Petitioner No. 2 in the above noted case and am
well conversant with the facts and circumstances of the
present case. As such I am competent to swear the present
affidavit.
2. That the accompanying Petition under Article 227 of the
Constitution of India read with Section 482 of the Code of
Criminal Procedure, 1973 has been drafted under my
instructions and the same has been read over to me in
vernacular andnderstood by me and I say that the averments made therein
e true on the basis of the records and the contents of the
ame are true and correct to the best of my knowledge and
3. That the contents of the list of dates are drafted by my
counsel which are true to the best of my knowledge and are
derived from the records maintained by me.
4. That the contents of para I to 19 of the accompanying writ
petition are true to my personal knowledge and para A to y
are the grounds and legal submissions which are based on the
legal advice by my counsel, which I believe to be true and
42

5. That the accompanying annexures are true/typed copies of
their originals.
6. That the Deponent has not preferred any similar or other
petition in the above-mentioned matter
DEPONENT
VERIFICATION:
03 OCi 2020Verified at New Delhi on this the dayof October 2020 that the
contents of the above affidavit are true and correct to my
knowledge no part of it is false and nothing material has been
concealed therefrom.
I
ldentify
the
D e p o n e n t
who
has
Signa
in my
P r e s e n c e
0TAR
DEPONENT
RAMPALSINGH
DERegd. e16973
Validiuo2-02-2025/
CovS
CERTIFIED THATTHE DEPONENT
Shri/Smt./Km..B:JX)LeNa.....
S/o, W/o, D/o. .sángdY
dantified By Sh./Smt.Hbhay.Marul
has Solemnly affirrn9 maDelhi
O FIND
03 0CT 20that the Contents E TIdavit WAICNhave been read & ex{ned toim are
true and Correct to
hinowledge.
NotaryPublic, Delhi (INDA)
43

Ct. Case No. 04/2020
PS P.T. Street
u/s 156(3) Cr.P.C.
Brinda Karat and another v. State
26.08.2020
Present : Ld. Counsels Ms. Tara Narula, Sh. Adit S. Pujari, Ms. Aparajita Sinha, Sh.
Chaitnaya and Ms. Tusharika Mattoo for the complainants.
1. Due to spreading of Corona Virus (COVID-19), special measures taken by the
Government to prevent it by ordering a nationwide lockdown, the hearing of the
urgent matter has been conducted through Video Conference using CISCO
WEBEX app after taking consent of the parties, in terms of directions issued by
the Ld. District and Sessions Judge, Rouse Avenue District Courts and vide
circular no. Endst. No. 1977-2009/DHC/2020 dated 30.07.2020 issued by
Hon'ble High Court of Delhi.
2. Arguments on the pending application u/s 156(3) Cr.P.C. have already been
heard on earlier occasion. As the Hon’ble High Court of Delhi was also seized of
the same matter and this was brought to the notice of this court, hence, this court
desisted from passing any order and waited for the outcome of the said petition.
Now order dated 05.08.2020 passed by Hon’ble High Court of Delhi has been
received whereby this court has been directed to decide the present application
expeditiously as possible and practicable in accordance with law while allowing
the withdrawal of the petition by the complainants.
3. The present application and the complaint has been filed against Mr. Anurag
Thakur, Minister of State for Finance, Government of India and Mr. Pravesh
Verma, Member of Parliament by the complainants Ms. Brinda Karat and Mr.
K.M. Tiwari who are also the political figures. By way of the present application
the complainants seek order of registration of FIR against the respondents for the
alleged offences u/s 153A/153B/295A/298/504/505/506 IPC.
Page 1 of 6
ANNEXURE P-1
44

4. For prosecution of respondents u/s 153A/153B/295A/505 IPC the prior sanction
of competent authority i.e. Central Government is required as per section 196
Cr.P.C. During the adddressing of arguments by Ld. Counsels for the
complainants, a question was put to Ld. Counsels as to whether any sanction
has been procured by them to which the answer was replied in negative. Ld.
Counsels for the complainants argued that sanction is only required before taking
cognizance by the court and not before passing of order of registration of FIR u/s
156(3) Cr.P.C. Ld. Counsels for the complainants filed brief written submissions
on this aspect and in support of their submissions they relied upon the following
judgments:-
(i). Gopal Das Sindhi vs State of Assam, AIR 1961 SC 986.
(ii). Samaj Parivartan Samudaya And Ors. Vs State of Karnataka, (2012) 7 SCC
407;
(iii). Anil Kumar & ors. v. M.K. Aiyappa and Anr (2013) 10 Supreme Court Cases
705.
(iv). Manju Surana vs Sunil Arora, (2018) 5 SCC 557;
(v). State of Karnataka and Another vs Pastor P. Raju, (2006) 6 SCC 782;
(vi). Anju Chaudhary vs State of Uttar Pradesh and Another, (2013) 6 SCC 384;
5. Submissions have been heard at length. Before adverting to the merits of the
case it has to be seen whether prior sanction for prosecuting the respondents is
mandatorily required even at the stage of ordering of registration of FIR u/s
156(3) Cr.P.C. if the answer to this question remains in affirmative then it will be
futile to go on merits of the case.
6. It has been held by Hon’ble Apex Court in Anil Kumar & ors. v. M.K. Aiyappa
and Anr Criminal Appeal nos. 1590-1591 of 2013 that “requirement to obtain
sanction is mandatory requirement and not directory in nature. If there is
Page 2 of 6
45

no prior sanction, the Magistrate cannot order investigation against a
public servant while invoking powers under section 156(3) Cr.P.C.”. The
Hon'ble Apex Court observed in following paras:
9. We will now examine whether the order directing investigation under Section 156(3) Cr.P.C.
would amount to taking cognizance of the offence, since a contention was raised that the
expression “cognizance” appearing in Section 19(1) of the PC Act will have to be construed as
post cognizance stage, not pre- cognizance stage and, therefore, the requirement of sanction
does not arise prior to taking cognizance of the offences punishable under the provisions of the
PC Act.
11. The scope of Section 156(3) Cr.P.C. came up for consideration before this Court in several
cases. This court in Maksud Saiyed case examined the requirement of the application of mind
by the Magistrate before exercising jurisdiction under section 156(3) and held that where
jurisdiction is exercised on a complaint filed in terms of section 156(3) or section 200 Cr.P.C., the
Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot
refer the matter under section 156(3) against a public servant without a valid sanction order. The
application of mind by the Magistrate should be reflected in the order. The mere statement that
he has gone through the complaint, documents and heard the complainant, as such, as reflected
in the order, will not be sufficient. After going through the complaint, documents and hearing the
complainant, what weighed with the Magistrate to order investigation under section 156(3)
Cr.P.C. should be reflected in the order, though a detailed expression of his views is neither
required nor warranted. We have already extracted the order passed by the Learned Special
Judge which, in our view, has stated no reasons for ordering investigation.
12. We will now examine whether the order directing investigation under Section 156(3) Cr.P.C.
without amount to taking cognizance of the offence, since a contention was raised that the
expression “cognizance” appearing in section 19(1) of the PC Act will have to be construed as
post cognizance stage, not pre cognizance stage and, therefore, the requirement of sanction
does not arise prior to taking cognizance of the offences punishable under the provisions of PC
Act.
13. The expression “cognizance” which appears in Section 197 Cr.P.C. came up for consideration
before a three-Judge Bench of this Court in State of Uttar Pradesh v. Paras Nath Singh (2009) 6
SCC 372, and this Court expressed the following view:
“6. .............And the jurisdiction of a Magistrate to take cognizance of any
offence is provided by Section 190 of the Code, either on receipt of a
Page 3 of 6
46

complaint, or upon a police report or upon information received from any
person other than a police officer, or upon his knowledge that such offence
has been committed. So far as public servants are concerned, the
cognizance of any offence, by any court, is barred by Section 197 of the
Code unless sanction is obtained from the appropriate authority, if the
offence, alleged to have been committed, was in discharge of the official
duty. The section not only specifies the persons to whom the protection is
afforded but it also specifies the conditions and circumstances in which it
shall be available and the effect in law if the conditions are satisfied. The
mandatory character of the protection afforded to a public servant is brought
out by the expression, ‘no court shall take cognizance of such offence
except with the previous sanction’. Use of the words ‘no’ and ‘shall’ makes it
abundantly clear that the bar on the exercise of power of the court to take
cognizance of any offence is absolute and complete. The very cognizance
is barred. That is, the complaint cannot be taken notice of. According to
Black’s Law Dictionary the word ‘cognizance’ means ‘jurisdiction’ or ‘the
exercise of jurisdiction’ or ‘power to try and determine causes’. In common
parlance, it means taking notice of. A court, therefore, is precluded from
entertaining a complaint or taking notice of it or exercising jurisdiction if it is
in respect of a public servant who is accused of an offence alleged to have
been committed during discharge of his official duty.
14. In State of West Bengal and Another v. Mohd. Khalid and Others (1995) 1 SCC 684, this
Court has observed as follows:
“It is necessary to mention here that taking cognizance of an offence is not
the same thing as issuance of process. Cognizance is taken at the initial
stage when the Magistrate applies his judicial mind to the facts mentioned
in a complaint or to a police report or upon information received from any
other person that an offence has been committed. The issuance of process
is at a subsequent stage when after considering the material placed before
it the court decides to proceed against the offenders against whom a prima
facie case is made out.”
21. Learned senior counsel appearing for the appellants raised the contention that the
requirement of sanction is only procedural in nature and hence, directory or else Section 19(3)
would be rendered otiose. We find it difficult to accept that contention. Sub-section (3) of Section
19 has an object to achieve, which applies in circumstances where a Special Judge has already
rendered a finding, sentence or order. In such an event, it shall not be reversed or altered by a
court in appeal, confirmation or revision on the ground of absence of sanction. That does not
mean that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed
that there was no previous sanction, as already indicated in various judgments referred to
herein-above, the Magistrate cannot order investigation against a public servant while invoking
powers under Section 156(3) Cr.P.C. The above legal position, as already indicated, has been
clearly spelt out in Paras Nath Singh and Subramanium Swamy cases (supra).
Page 4 of 6
47

7. Similar view was reiterated and held by Hon’ble Apex Court in L. Narayana
Swamy v. State of Karnataka & ors. Criminal Appeal No. 721 of 2016.
8. The judgment relied upon by the Complainants in State of Karnataka and
Another vs Pastor P. Raju, (2006) 6 SCC 782, the facts of the case were different and
it was the police agency who registered the FIR on its own and the issue before the
Hon'ble Court was limited to the extent as to whether remanding of the accused to
judicial custody when produced before the Magistrate amounts to taking cognizance or
not. The said judgment being distinguishable on the facts does not apply in the present
case. The judgment Gopal Das Sindhi vs State of Assam, AIR 1961 SC 986 is also
distinguishable from the facts and circumstances of the present case as the question of
prior sanction was not involved in the aforementioned judgment, hence, this judgment is
also of no help to the complainants for supporting their contentions.
9. Ld. Counsel for the complainant heavily relied upon the judgment Manju Surana
vs Sunil Arora, (2018) 5 SCC 557 and submitted that the Hon'ble Court having
divergent opinion on the issue of previous sanction at the stage of 156(3) Cr.P.C. have
referred the matter to larger bench, hence, the judgment of Anil Kumar & ors. v. M.K.
Aiyappa is per-incuriam. .
The reference made by the Hon'ble Supreme Court in the aforesaid case to a
larger bench has not been taken up or decided yet. This court does not agree with the
contention raised by the Ld. Counsel for the complainants simply for the reason that as
on date the judgment passed by the Hon'ble Supreme Court in Anil Kumar & ors. v.
M.K. Aiyappa and in L. Narayana Swamy v. State of Karnataka and others stands as
precedent to be followed.
10. The contention of Ld. Counsels for the complainants was that the
aforementioned judgments pertains to offences under Prevention of Corruption Act and
does not apply in the present case. Though the aforementioned judgments pertains to
complaint under Prevention of Corruption Act but the ratio applies in all such cases
where previous sanction is required. The same analogy can be drawn and applied in the
Page 5 of 6
48

case in hand as well. The contention of the Ld. Counsels for the complainants in this
respect is misconceived and cannot be said to be tenable in the eyes of law.
11. The judgments i.e. Anju Chaudhary vs State of Uttar Pradesh and Another,
(2013) 6 SCC 384 and Samaj Parivartan Samudaya and Ors. Vs State of Karnataka,
(2012) 7 SCC 407; relied upon by the complainants pertains to the merits of the case
which this court does not deem it appropriate to consider as the present application and
the complaint is not sustainable without the prior sanction i.e. technical requirement of
law.
12. Admittedly, there is no previous sanction obtained by the complainants from the
competent authority to prosecute the respondents for the offences alleged in the
complaint. Hence, in view of the settled position of law in Anil Kumar & ors. v. M.K.
Aiyappa and L. Narayana Swamy v. State of Karnataka and others application u/s
156(3) Cr.P.C. and the complaint deserves to be dismissed being not tenable in the
eyes of law. Accordingly, same stands dismissed.
13. Copy of the order be provided to the Ld. Counsel for the complainant as prayed
for. Order be also uploaded on the website.
14. File be consigned to record room after due compliance.
[Vishal Pahuja]
ACMM-I/RADC/ND/26.08.2020
Page 6 of 6
49

BRINDA KARAT
Member, Polit Bureau, CPI(M)
Former Member, RajYa Sabha
29.01.2020
The Commissioner of Police
Police Headquarters
IP Estate
Delhi
SUBJECT: Complaint against Anurag Thakur, state Minister for Finance, GOI
and Parvesh Verma, MP for inciting communal enmity, extending threats and
making statements that are prejudicial to national integration.
Dear Shri Patnaik ji,
You are no doubt aware that the Election Commission has taken nate Of the
prima facie evidence against t';vo BJP leaders namely Anurag Thakur, the
Mirirt.r of State for Finance and Parvesh Verma the incumbent MP from the
west Dethi Lok Sabha constituency, for highly objectionable speeches and has
removed them from the list of star campaigners. However it is regrettable that
the Delhi police, which has taken suo moto notice of other statements made by
other persons to file sedition cases, has not taken any notice of the blatantly
communal and hate speeches made by these two leaders and has not filed any
cases against them. Their statements over the past few days are inflammatory
and itlegal, constituting offences under Sections 153A/153B/504 ofthe Indian
Penal Code (IPC), as well as other applicable provisions such as under Section
29sN2981506 tPC.
We, Brinda Karat and K.M.Tewari, are therefore making this complaint and
demand that an FIR be filed immediately against the two individuals named'
Mr. Parvesh Verma gave a speech on Monday, 27.01.2020 in which he openly
threatened the protestors at Shaheen Bagh and claimed that ifthe BJP is elected
in Delhi, Shaheen Bagh would be cleared within one hour. This is clearly a
threat, and Mr. Verma can only be referring to the use of force against what has
been a peaceful gathering at Shaheen Bagh.
Mr. Verma has given an interview to ANI on 28.01.2020, which we have
viewed online. In the said interview, Mr. Verma has stated in reference to the
protestors at Shaheen Bagh:
Office:
I tAtr
4lu
ANNEXURE P-2 50

BRINDA KARAT Member, Polit Bureau, CPI(M)
Former Member, Rajya Sabha
"Yeh log aapke gharon mein ghusenge, aapki behen betiyon ko uthaienge
aur unko rape knrenge, unla marenge. Isiliye aaj samay hai. Kal Modi ji
nahin aayenge bachane, kal Amit Shahji nahin aayenge bachane..."
(As per the video and article available at
)
This statement is, once again, clearly false provocative and communal as not
only is the protest at Shaheen Bagh entirely peaceful, but it is also attended by a
large number of women, elderly persons and children, a large section of whom
belong to the minority community. Mr. Verma seeks to characterise the
protestors at Shaheen Bagh as potential dangerous invaders into the homes of
peaceful Hindus. It is inciting religious hatred by catling them rapists and
criminals. It is also designed to cause fear among the majority population,
particularly women and create communal division.
Mr. Verma is also reported as having stated that "lf my government is formed in
Delhi, then give me only one month's time after February t t. Will not leave any
mosques buill in my Lok Sabha constituency on government land will remove
them all." This statement is also self-evidently inflammatory, communal, and
threatening towards the Muslim community. Particularly when said as part of a
campaign speech by an elected representative, these intentional statements are
directly aiqed a! creating enmity between religious groups and extending
threats and intimidation of violence to the Muslim community at large. Sucf,
statements cannot be ignored as, apart from being against the fibre ofthe Indian
constitution and society, they constitute serious cognizable offences under the
IPC.
As previously mentioned, the provocative comments made by Mr. Verma are
made with the intention to promote enmity between Hindus and Muslims in
India. This act of Mr. verma constitutes offence under section
153N1538/504/505 IPC.
As Mr. verma's statement were in the course of campaigning and clearly with a
view to gamer votes in the forthcoming elections, the oifenci of making a false
statement in connection with an election under section lTlG Ipc may also be
attracted in the present case.
51

BRINDA KARAT
Similarly, on 27.1.2010, Mr. Anurag Thakur while campaigning for a !{!
candidate, Manish choudhury in Rithala, was seen addressing a rally of BJP
supporters and leading a chant of'desh k gaddaro ko, goli maro salon.ko'' ln^
thi video which is uploaded on various news websites including the Times of
India. Mr. Anurag Thakur is seen inciting the supporters of the BJP and
members ofthe general public present at the said rally to attack those protesting
against the CAA and NRC by referring to protestors as gaddar or traitors' Mr'
Thakur is in fact seen in the video repeatedly calling upon the BJP supporters
present to shout the said slogan so that the same is audible to other office
t"urers, and members ofthe BJP present on the stage ofthe said rally including
the Union Minister, Mr. Giriraj Singh among others' The video may be viewed
online at the URL:
We request you to immediately register an FIR on this complaint, which
discloses the commission of serious cognizable offences that threaten our
national integration.
Thank you.
Member, Polit Bureau, CPI(M)
With regards,
K.M.Tewari
ISecretary, Delhi State Committee,
cP(M)l
[Member, Pstlf Bureau, CPI(M)]
52

January 31,2020
Shri Amulya Patnaik
Commissioner of Police
Delhi
Dear Shri Amulya Patnaik ji,
This is fuither to the complaint dated 29-l-2020 in which we had given details
of the hate speeches made by leaders of the BJP, namely Anurag Thakur and
Parvesh Verma which constitute criminal offences under the IPC. We had also
mentioned the specific provisions which should apply namely under Sec' 153A'i
15381 295N 2981 5O4l 505/ 506 ofthe Indian Penal Code, 1860 among others'
Regrettably and for reasons best known to you and the Delhi police, you chose
not to act on our complaint. The direct result of your inaction was seen
yesterday when an armed man shot directly at Jamia students, in full view of the
Delhi police personnel who acted as spectators. The criminal concemed, who
calls himself Rambhakt Gopal is a supporter of the ruling party and the ideology
of the sangh parivar. He implemented what Anurag Thakur had openly asked
his supporlers to do -- "goli maaro", shoot the traitors' This terrorist act is
directly attributabte to the instigation by the leaders mentioned above through
their statements for which they must be held responsible and charged under the
law.
Further, you must be aware of the open threat including through posters by an
outfit calling itself the Hindu Sena to forcibly clear the Shaheen Bagh protest
site on February 2. This is spreading fear and panic in the entire area. lt is
essential for the police to take strong action in advance against this Sena so as to
prevent them from carrying out their threat. This threat again is attributable to
the hate speech made by the two leaders named.
We urge you to take immediate action, file the FIRs, and take preventive steps
against the Hindu Sena.
Thanking you.
(KM Tewari)
Secretary,,rDelhi State-Committee,
CPI(M)
Room No. 1
RECEIVED
Date ::
''-'.114- 2a:
ANNEXURE P-3 (COLLY.)
53

Former Member, Raiya Sabha
February 2, 2020
The $HO
Parliament Street Police Station
I'lew Delhl
Dear Sir,
lam enclosing two letters lhad earlier written tb the Police
Commissioner regarding the filing of FlRs against Anurag Thakur and
Parvesh Vtrma, The letters are self-explanatory,
Since then, again as a direct result of Anurag Thakur's statertcnt of
Goli Maro" against traitors and also the inciternent of hatred in the
speeches of Parvesh Verma, another incident occurred in Shaheen
Bagh. A man reached the site and tried to shoot atthe protesters.
Itherefore request you to immediately file FlBs agrinst Anureg Thakur
and ParvEsh Verma.
Thanking you
Yours truly
[KMTiwari)
Serretary, Delh; State Committee
Pt. Srrect N. Delhi
lB
M Bureau
54

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ANNEXURE P-4
55

Brinda karat and anr. v. state and anr. (defects cleared)

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