The Delhi high court on Tuesday refused to stay the trial court proceedings against Delhi law minister Kapil Mishra for allegedly posting objectionable tweets during the 2020 assembly elections.
Justice Ravinder Dudeja issued notice to Delhi police on the Bharatiya Janata Party leader's plea challenging a sessions court order that dismissed his petition against the summons of a magisterial court in the case.
"There is no need to stay the trial court proceedings. There is no stoppage of proceedings. This court does not feel it (is) necessary to stay the proceedings. The trial court is at liberty to proceed further with the matter," the judge said.
The high court granted four weeks to the police to file its response to the petition and posted the hearing on May 19.
The hearing is slated to come up in the trial court on March 20.
Mishra posted alleged objectionable statements on social media on January 23, 2020, from his X handle, then Twitter, in connection with the Delhi assembly elections.
A complaint was filed against him by the returning officer, based on which an FIR was registered.
The sessions court on March 7 expressed "complete agreement" with the magisterial court that the complaint filed by the returning officer was sufficient to take cognisance of the offence under Section 125 (promoting enmity between classes in connection with election) of the Representation of the People Act.
On Tuesday, senior advocate Mahesh Jethmalani, appearing for Mishra, said Section 125 of the Act was a non-cognisable offence and the FIR could not be registered without following the procedure under Section 155(2) of the Code of Criminal Procedure.
He said there was no reference to any two communities or groups in the tweets -- a prerequisite of Section 125 of the RP Act.
The alleged tweets were neither intended to promote enmity between different classes nor any such situation was created during that period, Jethmalani argued.
Mishra's tweets, he said, were posted during the elections to criticise the "anti-social and anti-national" elements who intended to spoil the atmosphere under the guise of anti-Citizenship Amendment Act movement.
He said in the tweets, Mishra was trying to say that if anyone attempted to divide the nation, there were nationalists who would prevent it.
The prosecutor appearing for Delhi Police opposed the petition and said the tweets were intended to promote hatred between two religious communities.
He said there were concurrent findings of two courts on the issue and Mishra's arguments could be taken up at the stage of framing of charges.
Jethmalani insisted on the stay of the proceedings in the trial court on the ground that if framing of charges would tarnish his client's reputation besides prejudicing his rights.
The high court, however, said Mishra was not going to be prejudiced and in case a favourable finding came in the case, all proceedings would go away.
"Let the proceedings continue. You won't be prejudiced due to the continuation of the trial. No need to stay the trial. Sorry. Renotify on May 19. In the meantime, the trial court may continue with the proceedings," it said.
The senior counsel then requested for a direction to the trial court that if it proceeds with framing of charges, it should not be influenced by the observations of the sessions court made on the merits of the case.
Justice Dudeja said, "It is made clear that while considering the question of framing of charges, the trial court will make independent assessment on the basis of the submissions made by the respective sides."
The sessions court dismissed Mishra's revision petition on March 7 and said his statements appeared to be "a brazen attempt to promote enmity on the grounds of religion by way of indirectly referring to a country which unfortunately in common parlance is often used to denote the members of a particular religion".
Its order went on to add, "The word Pakistan is very skilfully weaved by the revisionist in his alleged statements to spew hatred, careless to communal polarisation that may ensue in the election campaign, only to garner votes."
It had rejected as "simply preposterous and outrightly untenable" Mishra's argument that his alleged statement did not refer to any caste, community, religion, race and language but mentioned a country, which was not prohibited under Section 125 of the RP Act.
The sessions court found an "implicit reference" to a particular country aside from an "unmistaken innuendo to persons of a particular religious community" that could be "effortlessly understood even by a layman, let alone by a reasonable man".
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