No complaint from the ‘insulted’: Himachal Pradesh High Court clears Congress leader TS Bharmouri over ‘remarks against PM’

In its order dated March 20, the court noted, “Interestingly, the person, who was allegedly intentionally insulted by the petitioner, thereby being provoked to breach the public peace or commit any other offence, never came forward to lodge a complaint, rather complainant, being member of Bharatiya Janta Party, lodged the complaint, contents whereof, if read, are not specific, rather vague and evasive.”

Continuation of proceedings pursuant to FIR would cause unnecessary harassment to the petitioner, the court said.

‘No case under election law or IPC’

• The court finds there is no case made out against Congress leader Bharmouri, the petitioner, either under Section 125 of the Representation of the People Act or Section 504 of the Indian Penal Code (IPC).
•  There are no specific details of the alleged abusive language and remarks made by the petitioner in the final report.
• The investigating agency exactly copied whatever was mentioned in the FIR. 
• There is no allegation that while using absurd language and hurling abuses at the Prime Minister of India, the petitioner ever attempted to promote enmity or hatred between different classes of citizens of India on the grounds of religion, race, caste, community or language.
• A mere statement that during an election rally, the petitioner made certain utterances against the Prime Minister may not be sufficient to constitute an offence under Section 125 of the Representation of the People Act. 
• No material on record to prove that the absurd marks and hurling of abuses by the petitioner led to enmity and hatred among the citizens of India.
• The court finds that no case under IPC Section 504 is made out against the petitioner.
• Interestingly, the person who was allegedly insulted never came forward to lodge a complaint; the complainant, a BJP member, lodged a vague and evasive complaint.
• The petitioner, while making an election speech, made certain comments against the Prime Minister, but there is no material to demonstrate that, pursuant to the aforesaid uncalled-for speech, there was any disruption of public peace. 
• The court finds this to be a fit case where powers under Section 482 of the Criminal Procedure Code (CrPC) can be exercised to quash the FIR as well as consequent proceedings.
• Continuation of proceedings would not only cause unnecessary harassment to the petitioner but would also put him to the ordeal of a protracted trial, which is otherwise likely to culminate in his acquittal.  

Section 125 of the Representation of People Act

• Any person person, who in connection with an election under aforesaid Act, promotes or attempts to promote feelings of enmity or hatred, between different classes of the citizens of India on the grounds of religion, race, caste, community or language, shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both.

What does IPC Section 504 say?

• Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

The complaint

• The complainant,  who is a BJP office-bearer, lodged a complaint with the chief electoral officer, Shimla, on October 3, 2021, alleging that the petitioner, during an election speech, used abusive language against the Prime Minister.
• The petitioner is a senior Congress leader who allegedly made the absurd and uncalled-for remarks.
• The complainant alleged that the petitioner violated the Model Code of Conduct and provisions of the Representation of the People Act, 1951 and the IPC.
• The complaint received by the chief electoral officer was forwarded to Bharmour Police Station in Himachal Pradesh’s Chamba district, and an FIR was lodged.

Congress leader’s arguments

• P P Chauhan, the counsel representing Congress leader Bharmouri, argued that there was no case made out against the petitioner under Section 125 of the Representation of the People Act or IPC Section 504.
• Chauhan stated that a bare perusal of the FIR and final report filed under CrPC Section 173  shows no specific description of any abusive language used by the petitioner.
• He argued that the complainant only stated that the petitioner had made absurd and uncalled-for remarks against the Prime Minister, which was not sufficient to constitute any offence under the Representation of the People Act or the IPC.

State’s arguments

• Deputy Advocate General Anish Banshtu, for the respondent-state, and Advocate Vinod Chauhan, for the complainant, prayed for dismissal of Bharmouri’s petition.
• They argued that no illegality can be said to have been committed by the respondent-state by lodging the FIR. 
• The petitioner not only hurled abuses but also made absurd and objectionable remarks against the Prime Minister of India. 
• While using absurd language against the Prime Minister, the petitioner attempted to promote feelings of enmity or hatred between different classes of the citizens of India, they said.
• The petitioner rightly came to be booked under Section 125 of the Representation of the People Act.
• He disrupted elections and vitiated the political atmosphere, and intentionally insulted the Prime Minister.
• The petitioner provoked BJP workers, being fully aware that such actions were likely to cause public disorder and, as such, he was rightly booked under IPC Section 504. 
• Since the charges had not yet been framed, the petitioner could have sought an argument at that stage, but by filing this petition, he is preventing the lower court from taking cognisance of the matter, which is not permissible by law.

Court’s scope and competence to quash proceedings

State of Karnataka v. L Muniswamy and others (1977): It held that the high court, while exercising power under CrPC Section 482 (saving of inherent powers of high court), is entitled to quash the proceedings if it concludes that allowing it to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed.

State of Haryana and others v. Bhajan Lal and others (1992): While elaborately discussing the high court’s scope and competence to quash criminal proceedings under CrPC Section 482, the Supreme Court laid down certain principles governing the jurisdiction of the high court to exercise its power.

Prashant Bharti v. State (2013): The apex court reiterated that the high court has inherent powers under CrPC Section 482 to quash the proceedings against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charge, but such power must always be used with caution, care and circumspection.

The Himachal Pradesh High Court observed that where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him/her due to a private and personal grudge, the high court, while exercising power under CrPC Section 482 can proceed to quash the proceedings.

It clearly stipulates that the court can exercise power under the section to quash criminal proceedings, in cases where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused.