The Calcutta High Court recently quashed a criminal proceedings by a Magistrate against Congress leader Shashi Tharoor for his statement that “if BJP is voted to power, it will tear the Indian Constitution and make India a Hindu-Pakistan.”
A single-judge Justice Shampa Dutt (Paul) observed that the Magistrate had failed to comply with Section 202 of the Criminal Procedure Code (CrPC), which mandates a preliminary inquiry to determine if sufficient grounds exist for proceeding with the case before issuing the process.
The bench noted that the process was issued under Section 200 of the CrPC, which only allows the Magistrate to examine the complainant and the witnesses present in court.
The bench pointed out that “order under revision is under Section 200 and not 202, even though the petitioner admittedly does not have a local address, within the jurisdiction of the Court issuing process. In the present case, admittedly only the complaint has been examined. No witnesses were examined in this case”.
It thus directed the Magistrate to reconsider the matter while adhering to the provisions of Section 202(2) of the CrPC.
The single bench further clarified that the Magistrate should also take into account Section 197 of the CrPC, which prohibits the prosecution of public servants without prior sanction, and issue necessary orders in accordance with the law.
The complaint was filed by an individual who claimed that Tharoor made a controversial statement on July 11, 2018 stating “If citizens of India vote for a particular political party (BJP) in the ensuing General Election 2019, in such event that particular political party will tear up the Constitution of India and write a new one, which will enshrine the principles of Hindu Rashtra that will remove equality from the minorities. It will create a Hindu Pakistan and that is not what Mahatma Gandhi, Jawaharlal Nehru, Maulana Azad, Sardar Patel and the great heroes of freedom struggle thought.”
Following the incident, a complaint was lodged under Section 200 of the Criminal Procedure Code (CrPC) with the Additional Chief Metropolitan Magistrate in Calcutta. The Magistrate acknowledged the complaint and initiated criminal proceedings against Shashi Tharoor for alleged offenses under Sections 153A (hate speech) and 295A (hurting religious sentiments) of the Indian Penal Code, in addition to relevant provisions of the Prevention of Insults to National Honour Act, 1971.
Tharoor approached the High Court arguing that the Magistrate had issued the process without complying with the mandatory requirement of Section 202 of the CrPC, as Tharoor resided outside the jurisdiction of the court. It was argued that the provision under Section 202 of the CrPC was amended in 2005, making it obligatory to defer the issuance of the process when the accused resides outside the territorial jurisdiction of the court. It was also contended that in such situations, it is the Magistrate’s obligatory duty to personally investigate the case or instruct a police officer or any other appropriate person to conduct an inquiry. This is done to determine whether or not there are sufficient grounds to proceed against the accused before issuing summons in such cases.
Justice Dutt acknowledged that the written complaint in this case was based on allegations of certain comments made by Tharoor against a rival political party and his opinions regarding their alleged actions and conduct. The judge emphasized that these statements were Tharoor’s views as a political opponent.
Furthermore, the court observed that the Magistrate’s order was issued under Section 200 of the CrPC instead of Section 202, despite Tharoor’s admission that he does not have a local address within the jurisdiction of the issuing court.
As a result, the Magistrate’s order was set aside, and a directive was given to reconsider the matter afresh.
