State FIR no.19/91
Vide this order, this court shall decide as to whether Prima facie case u/s 153-A IPC or any other offence is made out against the accused or not.
Briefly stated the facts of the case are that on 29/11/90 at Chowk Vishwas Nagar, Delhi, the accused Sadhvi Ritambara delivered a speech which was considered objectionable and actionable u/s 153-A IPC on the ground of inciting the Hindus in the context of construction of Shri Ram Temple at Ayodhya and attempting to spread feelings of animosity against the Muslims. After the delivery of the said speech a letter Dtd. 11/1/91 was written by the then Deputy Secretary (Home) to the DCP Special Branch. The contents of letter are of great importance and hence reproduced in this order.
Dear Shri Singh
Kindly refer to your office letter no. 37340/Come (C-3/H) Dtd. 30/11/90 regarding the speech made by Sadhvi Ritambara at Chowk Vishwas Nagar, East Delhi on 29/11/90. I would like to inform you that screening committee at its meeting held on 3/1/91 has adjudged the speech actionable under 153-A of Indian Penal Code on the ground of inciting the Hindus in the context of construction of Shri Ram Temple at Ayodhya and attempting to spread feelings of animosity against the Muslims. The following extracts of her speech were considered to be actionable, objectionable.
"The Hindus have been so much humiliated and insulted since 1947 that sometimes it seems doubtful whether they are living in their own country adding that in Kashmir & Punjab Hindu blood is being shed so much so that even in Ayodhya unarmed Kar Sevaks including the Sadhus were brutally killed."
She gave a call to Hindus to unite and fight bravely against injustice and atrocities being perpetrated on them like the brave Kar Sevaks who martyred themselves at Ayodhya in connection with construction of Shri Ram Temple.
You are therefore kindly to initiate criminal proceedings against Sadhvi Ritambara under S. 153-A of Indian Penal Code immediately.
This was the letter written by the Deputy Secretary (Home) to the D.C.P. Special Branch for registration of case. On the basis of the letter FIR no. 19/91 was registered. This letter will be read as Mark A. Thereafter order was passed by Deputy Secretary (Home), Mr. M.U. Siddiqui, granting sanction to initiate criminal proceedings in the court of competent jurisdiction. After investigation, chargesheet was filed in the Court.
I have heard the Ld APP along with the chief prosecutor Shahdara Court. I have also heard the accused and her defence counsel Sh. Alok Kumar Advocate and Sh. K.L. Sabharwal Advocate. I have perused the record with care.
The Ld APP submitted that taking into account all the factors and the speech made by accused, prima facie case u/s 153-A IPC is made out against the accused and prays framing of charge.
The Ld Defence Counsel Sh. Alok Kumar who argued the case on the point of charge at length submitted that case not be proceeded further due to the fact that even at this stage the prosecution is not having sufficient evidence against the accused which may warrant framing of charge u/s 153-A IPC or any other offence against the accused. The Ld defence counsel submitted that he could not understand as to how the prosecution is going to prove the "spoken words" in the absence of witnesses and other evidence on record because the dispute in this case related to spoken words u/s 153-A (a) of IPC. The Ld defence counsel submitted that the prosecution is not having any video or audio tapes of speech and it is only on the basis of hearsay evidence that the present case is being registered.
The Ld defence counsel has drawn the attention of this court towards letter Dtd. 15/6/92 titled 'legal' opinion on the speeches/slogans delivered in Jan Sabha written by DCP East District which elaborates about the fashion of recording of speeches. The main contents of letter are:
"According to the instructions mentioned in the CID manual, the secret information i.e. how to record and who has recorded speeches and collected information cannot be disclosed. The officer of (SB) branch cannot be a P.W. in any case."
The Ld defence counsel submitted that when a witness who has recorded the speeches cannot be a prosecution witness as per CID manual then how it is possible for the prosecution to prove the spoken words. The prosecution was asked regarding this query wherein the Chief Prosecutor after perusal of police file submitted that the prosecution had asked the police department regarding this fact where the prosecution received reply vide query no. 3 in police file that some unknown person had recorded the speeches.
Secondly the Ld defence counsel submitted that there is only one eyewitness and that too a Pujari of nearby temple whose statement was recorded after lapse of four months of delivery of speech.
The Pujari in his statement u/s 161 CrPC simply stated that the accused had given speech. The contents of speech were not put to him. Hence the Ld defence counsel submitted that Pujari may only prove the factum of delivery of speech but not the contents of speech in order to bring it within the preview of 153-A IPC.
Thereafter the Ld Defence Counsel contended about the portion cited as "Mark A" in this order. He submitted that only the portion "Mark A" was considered to be objectionable by the sanctioning authority and not the entire speech. He explained that even the portion "Mark A" of this order does not have such impact as to bring it within the preview of S. 153-A IPC. He submitted that the accused has not spoken anything against any community or to hurt the feelings of any particular community. He submitted that neither this speech was made for inciting the Hindus in the context of construction of Sri Ram Temple at Ayodhya nor attempting to spread the feelings of animosity against the Muslims. The Ld Defence Counsel submitted that he could not understand as to how the prosecution has brought Muslims in this affair as nowhere in the alleged objectionable portion, the accused has said anything against the Muslims.
The words that in the Punjab & Kashmir, Hindu blood is being shed pertain to the hostilities between Indian Troops and Public with the ISI of Pakistan. Regarding the words 'Even in Ayodhya, unarmed Kar Sevaks including Sadhus were brutally killed' she described it as atrocities committed by the then Chief Minister Mulayam Singh Yadav. Regarding the wordings "she gave a call to Hindus to unite and fight bravely against injustice and atrocities being perpetrated on them like the brave Kar Sevaks who martyred themselves at Ayodhya in connection with the construction of Sri Ram Temple" the Ld Defence Counsel submitted that it was covered under right to freely profess and propagation of religion and if call is given for construction of temple, then there is nothing wrong in it. The Ld defence counsel further submitted that in these words even the accused has not said anything against any other community for destruction of any religious place. The Ld Defence Counsel further contended that no witness has stated that he felt bad after hearing the speech or he was disturbed neither any riots or any disturbance took place. In the last Ld Defence Counsel submitted that sanction letter dtd 3/9/91 issued by Deputy Secretary (Home) is not signed by any one and moreover it is merely a photocopy.
The senior prosecutor Mr. Ahluwalia and the Ld APP again conducted their arguments in response to arguments advanced by Ld Defence Counsel and that at the time the speech was being delivered by the accused, there a dispute was going on regarding the construction of Ram Temple at Ayodhya which could have incited the feelings of different communities. The chief prosecutor was asked by the Court as to whether the prosecutor is having any video or audio cassettes for the speeches. The prosecutor said no to this question.
To my mind it appears that Ld Defence Counsel is clear on the point regarding "spoken words". He had already submitted that the prosecution is not having sufficient material on record to prove spoken words. The prosecution is not having any audio or video cassettes of speeches.
The most important thing is that there is not even a single witness on record who can be able to say that he had heard the speeches and speeches were inflamating so as to cover it under S. 153-A IPC. There is only one eyewitness Pujari. His statement u/s 161 CRPC becomes open to suspicion because it is recorded after four months of the delivery of the alleged speech. Moreover the witness Pujari has stated nothing about inflamatory language used by the accused but simply stated that he had heard the speech. Hence it is clear that even if Pujari is called as prosecution witness, he can prove the factum of delivery of speech but not its contents so as to bring it within the preview of S. 153-A IPC.
The prosecution is also weak on the point regarding the recording of speeches. In a letter which is on record, the DCP has stated to prosecution that the speeches were recorded by a person of CID (S. Branch) and he cannot be prosecution witness but the Ld APP had stated that in the police file, when the queries were made regarding the factum of recording of speeches they had received information vide query no. 3 that some unknown person had recorded the speeches. Hence it is clear that when the prosecution does not know as to who has recorded the speeches how it is possible for the prosecution to prove the alleged speeches. As regards the extracts of the speech which were considered to be objectionable by the Deputy Secretary (Home), I find force in the arguments advanced by Ld Defence Counsel as discussed earlier. The accused has stated nothing against any particular community so as to insult the feelings of any other community but it appears after perusal of alleged objectionable part that accused has stated the same in propagation of her own religion.
The Deputy Secretary (Home) had stated in his letter dtd. 11/1/96 that objectionable portion of speech as mentioned in the said letter was likely to spread the feeling of animosity against the Muslims.
The Court would like to mention a Quotation of Gandhiji who said, "India cannot cease to be one nation because people belonging to different religions live in it . In no part of the world are one nationality and one religion synonymous terms, nor has it ever been so in India."
I have also perused the objectionable extracts of speech of accused. Keeping in view the above words of Gandhiji and keeping in view the fact that India should remain united despite existence of so many religions, the Home Secretary should have taken wider interpretation of the terms of speeches made by the accused. The Home Secretary had taken a very narrow interpretation. In India one is free to profess and propagate his religion because it is his fundamental right enshrined in the Constitution of India. This Court finds nothing objectionable in the alleged objectionable portion of speech as mentioned in letter "Mark A". There is nothing in the said objectionable extracts of alleged speech which may attract the provisions of S. 153-A IPC or any other offence.
This court has found force in the arguments advanced by Ld Defence Counsel Sri Alok Kumar & Sh K.L. Sabharwal.
Lastly there is no evidence on record which may suggest that feelings of any particular community, person were hurt after hearing of the alleged speech.
Hence after going through the records and above noted discussion and after hearing the prosecution as well as the defence, this Court is of opinion that registration of present case against the accused appears to be influenced by political forces. The case has been registered in a haphazard manner and chargesheet has been filed without proper scrutiny and without proper investigation.
Hence I have no option but to discharge the accused Sadhvi Ritambara of the offence u/s 153-A IPC as prima facie no case u/s 153-A IPC or any other offence against the accused is made out.
The accused Sadhvi Ratambara is discharged u/s 153-A IPC.
Announced in open court on 13/2/96.