THE Allahabad High Court Thursday quashed the order of the Magistrate taking cognisance of the charge sheet against Dr. Kafeel Khan for his alleged inflammatory speech delivered at the Aligarh Muslim University (AMU) against the Citizenship (Amendment) Act, 2019 in December 2019.
A single-judge bench of Justice Gautam Chowdhary passed the order after noting there was no requisite sanction order from the state government as per Section 196 of the CrPC and thus the Magistrate could not have taken cognisance of the charge-sheet for the offences under Sections 153A(Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony), 153B (Imputations, assertions prejudicial to national-integration.) and 505(2) [Statements creating or promoting enmity, hatred or ill-will between classes] of the Indian Penal Code (IPC).
The judge remanded the matter to the Chief Judicial Magistrate, Aligarh with a direction to pass a cognizance order against Khan only when prior sanction for prosecution is received from the state government.
Khan argued that the magistrate took cognisance of the charge sheet in the absence of a requisite sanction under Section 196 of the CrPC.
The plea also argued that a perusal of the entire speech did not disclose hate speech and no ingredients to attract Sections 153A, 153B and 505(2).
“In the present case it is axiomatic from the perusal of the entire speech that there is no actual utterance of words which reflects the intent and which may result in promoting disharmony or feeling of hatred and enmity between the religious community thus the basic ingredient of offence is the absence in the present case as such the continuation of the criminal proceedings under such offence u/s 153-A, 153-B, 505(2), 109 I.P.C. is abuse of process of law.”, the plea averred.
This was the same FIR on the basis of which Dr. Kafeel was detained under the National Security Act (NSA) for seven months and later released by the high court after it quashed the detention calling it bad in law.
The high court had then observed that a complete reading of the speech given by Dr. Kafeel at AMU on which the detention was based, prima facie, did not disclose any effort to promote hatred or violence. Nowhere did it also threaten the peace and tranquillity of the city of Aligarh, it observed.
In the appeal filed by the UP government, though the top court refused to interfere with the high court’s order.
Click here to read the High Court order
The article was originally published in The Leaflet.