VARUN GANDHI Vs. STATE OF U P

JUDGEMENT

(1.) IMPUGNED herein is the F.I.R dated 17.3.2009 lodged at case crime No. 255 of 2009 under Section 153 A, 188 IPC and Section 125 of the Representation of Peoples Act 1951 P.S. Barkhera District Pilibhit for quashment of which the petitioner has prayed for a writ of certiorari in the petition in hand. The reliefs sought in the petition may however be excerpted below :-

(2.) A brief resume of the allegations embodied in the F.I.R are that on 8.3.2009 at 2 p.m. the petitioner who is contesting election for member of parliament on B.J.P. ticket used derogatory language in his speech delivered by him at Kasba Barkhera Bazar for Muslims which was intended to give rise to feeling of enmity and to excite hatred amongst the communities. The precise words uttered by the petitioner in his speech before the congregation were "Sara Hindu Ek Taraf, Sara Katua Ek Taraf, Hindu Jaga, Bhagya Jaga, Abhi Nahin To Kabhi Nahin Aur Ab Nahin Jage to Desh Pakistan Ban Jayega, Tatha Hindu Par Hath Utha Ya Karya Karta Ko Darane Dhamkane Va Hak Chhinane Ke Liye Mujhe Shikayat Milti Hai To Varun Gandhi Hath Kat Dega, Hinduon Ka Dukh Sunen Wala Koi Nahin Hai. Varun Gandhi Hi Izzat Bacha Sakta Hai. Kamal Katuo Ke Gale Ko Kat Dega, Muslim Ek Bimari Hai, Chunav Ke Bad Khatma Ho Jayegi. To reword, according to the allegations, the speech is littered with derogatory and salacious details about one particular community in which the petitioner called them Katua (reference to practice of circumcision of foreskin) besides calling them a disease which according to further allegations, would be eliminated after election. According to further allegations, the speech was delivered notwithstanding the fact that the code of conduct had been in force after declaration of election and the speech was rabble rousing and highly inflammatory and was aimed and directed towards a particular community having tendency of creating public disorder and disturbance of law and order or affect public tranquillity and creating a sense of insecurity amongst them and thus an attempt has been made to create disharmony, feeling of hatred and ill-will between Hindu and Muslims. It is further alleged that Section 144 Cr.P.C for in force in and around the area and the congregation was addressed and speech was delivered without proper permission from the competent authority. In the light of the above allegations, the case was registered under Sections as aforesaid.

(3.) SRI Gopal Chaturvedi, learned Senior Advocate appeared and addressed the Court arguing that the petitioner never used any derogatory language and further that the C.D. has been tampered with to portray the petitioner in black veil attended with the submission that the incident has been hyped up by the Press beyond all proportion. It is further argued that even assuming that the words attributed to the petitioner were uttered by him in one of his addresses to the public the same by any reckoning are not intended to create any disaffection inasmuch as no unsavoury incident has happened thereafter. Ultimately, it has been argued that arrest of the petitioner be stayed as interrogation, if at all necessary, can be done without taking the accused into custody as held by the Apex Court in Jonathan Nitin Brady's case (2008) 3 SCC (Cri) 627. The learned counsel also referred to amendment in Section 41 which according to the learned counsel received the assent of the President on 7th January 2009 and argued that at the most the police could issue notice to the petitioner to appear before him or at such other place as may be specified in the notice.