Himachal Pradesh High Court
Date Of Decision: 03.09.2024 vs State Of H.P. & Anr on 3 September, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:8296 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.533 of 2021 Date of Decision: 03.09.2024 .
_______________________________________________________ Karam Chand Bhatia .......Petitioner Versus State of H.P. & Anr.
.....Respondents _______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the petitioner: Mr. Neelam Kaplas, Legal Aid Counsel.
For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar & Mr. B.C. Verma, Additional Advocate Generals, with Mr. Ravi Chauhan, Deputy Advocate General, for respondent No. 1-State.
_______________________________________________________ Sandeep Sharma, Judge(oral):
By way of instant petition filed under Section 482 of Code of Criminal Procedure, prayer has been made on behalf of petitioner for quashing of FIR No. 0001 of 2021 dated 21.01.2021, under Sections 124-A, 153-A, 505 read with Section 120-B of Indian Penal code and under Section 3 of Police (Incitement to Disaffection) Act, 1992, registered at Police Station CID, Shimla, District Shimla, Himachal Pradesh, as well as consequent proceedings, if any, pending adjudication in the competent Court of law.1
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2. For having bird's eye view, facts relevant for adjudication of the case at hand are that FIR, sought to be quashed, came to be .
instituted against the petitioner, who allegedly posted objectionable posts on Facebook page 'Tehlka Himachal App ki Awaz'. Since the words and expressions used by the petitioner, while uploading the posts on social media were found to have tendency of creating public disorder. FIR, sought to be quashed, came to be instituted against him, alleging therein that repeatedly petitioner made efforts to spread rumours among general public as well as Police Department, which if permitted, would result in causing hatred among two sections of the society and members of disciplined forces may further get instigated and provoked to raise protest against the department. It came to be specifically alleged against the petitioner in the FIR, sought to be quashed, that he knowingly tried to commit an act of spreading disharmony, hatred, enmity and disturbing the public peace.
3. After completion of investigation, police presented challan in the competent Court of law, but before same could be taken to its logical end, petitioner has approached this Court in the instant proceedings for quashing of FIR as well as consequent proceedings on the ground that no case much less under Sections 124-A, 153-A, 505 read with Section 120-B of Indian Penal Code and under Section 3 of Police (Incitement to Disaffection) Act is made out against the petitioner.
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4. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Ms. Neelam Kaplas, learned .
Legal Aid Counsel for the petitioner, is that bare perusal of posts uploaded by the petitioner on social media nowhere suggests that attempt, if any, ever came to be made at his behest to instigate and provoke the employees of Police Department, rather, he being member of political outfit repeatedly raised issues with regard to welfare of the Police officials on social media. While making this Court peruse posts allegedly uploaded by the petitioner on Facebook, annexed by the respondents with their reply, Ms. Neelam Kaplas, learned Legal Aid Counsel for the petitioner, attempted to argue that none of the posts can be considered to be an attempt on the part of the petitioner to provoke police officials to protest against the department, rather petitioner using the platform of social media repeatedly reminded the Government of Himachal Pradesh as well as Police Department with regard to difficulties being faced by the Police officials, especially, who are working on contract basis. Ms. Neelam Kaplas, learned Legal Aid Counsel for the petitioner, further argued that moreover there is nothing on record to suggest that objectionable posts, if any, were ever uploaded by the petitioner on social media with intent to incite any class or community of person to commit any offence against any other class of community, as such, case ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 4 2024:HHC:8296 registered against the petitioner under Sections 124-A, 153-A, 505 read with Section 120-B of Indian Penal Code and under Section 3 of .
Police (Incitement to Disaffection) Act is otherwise bound to fail in any eventuality and no fruitful purpose would be served by putting the petitioner to ordeal of protracted trial, which otherwise is bound to culminate in his acquittal.
5. Pursuant to notices issued in the instant proceedings, respondent-State has filed detailed reply under the signatures of Superintendent of Police, CID, Crime, HP, Shimla, wherein facts, as have been noticed hereinabove, are not disputed, rather stand admitted. During pendency of the case at hand, respondent-State on direction issued by this Court has also filed status report under the signatures of SHO Police Station CID, Shimla at Bharari, HP perusal whereof reveals that after completion of investigation, charges against the petitioner under Sections 124-A, 153-A read with Section 120-B of Indian Penal code were dropped and charge sheet against him was filed under Sections 505 of Indian Penal code and Section 3 of Police (Incitement to Disaffection) Act, which is pending adjudication.
6. Though, Court of learned Chief Judicial Magistrate, Shimla, had posted the matter on 21.06.2024 for framing of charge, but fact remains that till date no charge has been framed. Mr. Rajan Kahol, learned Additional Advocate General, while justifying the act of ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 5 2024:HHC:8296 of lodging of FIR against the petitioner specifically invited attention of this Court to the posts uploaded by the petitioner on social media to .
demonstrate that repeatedly petitioner, who has otherwise no connection with the Police Department, attempted to incite and provoke the police officials to raise war against the Police Department. Mr. Kahol, stated that petitioner specially created Facebook page 'Tehlka Himachal Aap Ki Awaz' to create fear and insecurity amongst the police officials, who otherwise themselves had come forward to render their service of Police Department on contract basis. Mr. Kahol, stated that if all the posts uploaded on social media are read in conjunction, no illegality can be said to have been committed by the Police Department, while lodging FIR, sought to be quashed. While making this Court peruse Section 505 of Indian Penal Code, Mr. Kahol, stated that whoever makes, publishes or circulates any statement, rumour or report with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public, whereby any person may be induced to commit an offence against the State or against the public tranquility is liable to be punished with imprisonment, which may extend to three years, or with fine, or with both. Mr. Kahol, states that if the words and expressions used by the petitioner, while uploading the posts on social media are read in its entirety, it clearly suggests that he repeatedly attempted to spread ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 6 2024:HHC:8296 rumours amongst the Police officials, thereby inducing them to raise protest against the Government. Mr. Kahol, states that since there is .
nothing on record to suggest that petitioner had any kind of connection, if any, with the Police Department or with any trade union, there was otherwise no occasion, if any, for the petitioner, who otherwise claims himself to be political outfit, to upload such posts on social media, which had a tendency to create disharmony amongst two sections of the society.
7. While referring to Section 3 of Police (Incitement to Disaffection) Act, Mr. Kahol, further submitted that whoever intentionally causes or attempts to cause, disaffection amongst the members of a police force, or induces or attempts to induce, or does any act, which he knows is like to induce, any member of a police force to withhold his services or to commit a breach of discipline, shall be punished with imprisonment, which may extend to six months.
While referring to Section 505 of Indian Penal Code and Section 3 of Police (Incitement to Disaffection) Act 1922, Mr. Kahol, contended that neither petitioner had any connection with the Police Department nor he was affected in any manner on account of non-payment of legible dues, if any, to the Police officials, act of uploading the posts on social media, thereby inciting police officials to raise protest against the Government itself suggests that petitioner had ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 7 2024:HHC:8296 intentionally and knowingly, with a view to provoke and incite police officials to raise protest against Government, had uploaded posts on .
social media and as such, he is required to be dealt with in accordance with law. Mr. Kahol, further stated that bare perusal of FIR, if read juxtaposing provisions contained under Section 505 of Indian Penal Code and Section 3 of Police (Incitement to Disaffection) Act discloses prima-facie case against the petitioner under Section 505 of Indian Penal Code and Section 3 of Police (Incitement to Disaffection) Act 1922 and as such, prayer made on behalf of petitioner for quashing of FIR deserves outright rejection.
8. While referring to Section 482 Cr.P.C, Mr. Kahol, states that no doubt, while exercising power under Section 482 Cr.P.C Court can pass any order with the object to prevent the abuse of process of law, but in the instant case, action of lodging FIR against the petitioner qua the allegations, as detailed hereinabove, by no stretch of imagination, can be said to be abuse of process of law, rather decision, if any, taken by this Court under Section 482 Cr.P.C to quash the FIR would preempt prosecution to prove its case beyond reasonable doubt by leading cogent and convincing evidence.
9. I have heard learned counsel of the parties and gone through the record carefully. Record perused and returned.
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10. Before ascertaining the genuineness and correctness of the submissions and counter submissions having been made by the .
learned counsel for the parties vis-à-vis prayer made in the instant petition, this Court deems it necessary to discuss/elaborate the scope and competence of this Court to quash the criminal proceedings while exercising power under Section 482 of Cr.PC.
11. A three-Judge Bench of the Hon'ble Apex Court in case titled State of Karnataka v. L. Muniswamy and others, 1977 (2) SCC 699, held that High Court while exercising power under Section 482 Cr.PC is entitled to quash the proceedings, if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed.
12. Subsequently, in case titled State of Haryana and others v.
Bhajan Lal and others, 1992 Supp (1) SCC 335, the Hon'ble Apex Court while elaborately discussing the scope and competence of High Court to quash criminal proceedings under Section 482 Cr.PC laid down certain principles governing the jurisdiction of High Court to exercise its power. After passing of aforesaid judgment, issue with regard to exercise of power under Section 482 Cr.PC, again came to be considered by the Hon'ble Apex Court in case bearing Criminal Appeal No.577 of 2017 (arising out of SLP (CrL.) No. 287 of 2017) ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 9 2024:HHC:8296 titled Vineet Kumar and Ors. v. State of U.P. and Anr., wherein it has been held that saving of the High Court's inherent powers, both in civil .
and criminal matters, is designed to achieve a salutary public purpose i.e. court proceedings ought not to be permitted to degenerate into a weapon of harassment or persecution.
13. The Hon'ble Apex Court in Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, relying upon its earlier judgment titled as Rajiv Thapar and Ors v. Madan Lal Kapoor, (2013) 3 SCC 330, reiterated that High Court has inherent powers under Section 482 Cr.PC., 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. In the aforesaid judgment, the Hon'ble Apex Court concluded that while exercising its inherent jurisdiction under Section 482 of the Cr.PC, Court exercising such power must be fully satisfied that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts and the material adduced on record itself overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. Besides above, the Hon'ble Apex Court further held that material relied upon by the accused should be such, as would persuade a reasonable person to ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 10 2024:HHC:8296 dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would .
persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. In the aforesaid judgment titled as Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, the Hon'ble Apex Court has held as under:-
"22. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C.") has been dealt with by this Court in Rajiv Thapar & Ors. vs. Madan Lal Kapoor wherein this Court inter alia held as under: (2013) 3 SCC 330, paras 29-30)
1.
29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 11 2024:HHC:8296 caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the .
accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
30.1 Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?::: Downloaded on - 13/09/2024 20:32:29 :::CIS 12
2024:HHC:8296 30.2 Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as .
would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. 30.3 Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
30.4 Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5 If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal - proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."
14. It is quite apparent from the bare perusal of aforesaid judgments passed by the Hon'ble Apex Court from time to time 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 private and personal grudge, High Court while exercising power under Section 482 Cr.PC can proceed to quash the proceedings.
15. The Hon'ble Apex Court in case tilted Anand Kumar Mohatta and Anr. v. State (Government of NCT of Delhi) Department of ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 13 2024:HHC:8296 Home and Anr, AIR 2019 SC 210, has held that abuse of process caused by FIR stands aggravated if the FIR has taken the form of a .
charge sheet after investigation and as such, the abuse of law or miscarriage of justice can be rectified by the court while exercising power under Section 482 Cr.PC. The relevant paras of the judgment are as under:
16. Even otherwise it must be remembered that the provision invoked by the accused before the High Court is Section 482 Cr. P.C and that this Court is hearing an appeal from an order under Section 482 of Cr.P.C. Section 482 of Cr.P.C reads as follows: -
"482. Saving of inherent power of the High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
17. There is nothing in the words of this Section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High court can exercise jurisdiction under Section 482 of Cr.P.C even when the discharge application is pending with the trial court ( G. Sagar Suri and Anr. V. State of U.P. and Others, (2000) 2 SCC 636 (para 7), Umesh Kumar v. State of Andhra Pradesh and Anr. (2013) 10 SCC 591 (para 20). Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced, and the allegations have materialized into a charge sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 14 2024:HHC:8296 charge sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court."
16. The Hon'ble Apex Court in case titled Pramod Suryabhan .
Pawar v. The State of Maharashtra and Anr, (2019) 9 SCC 608, has elaborated the scope of exercise of power under Section 482 Cr.PC, the relevant para whereof reads as under:-
"7. Section 482 is an overriding section which saves the inherent powers of the court to advance the cause of justice. Under Section 482 the inherent jurisdiction of the court can be exercised (i) to give effect to an order under the CrPC; (ii) to prevent the abuse of the process of the court; and (iii) to otherwise secure the ends of justice. The powers of the court under Section 482 are wide and the court is vested with a significant amount of discretion to decide whether or not to exercise them. The court should be guarded in the use of its extraordinary jurisdiction to quash an FIR or criminal proceeding as it denies the prosecution the opportunity to establish its case through investigation and evidence. These principles have been consistently followed and re-iterated by this Court. In Inder Mohan Goswami v State of Uttaranchal5, this Court observed.
"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent powers to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of the court, and
(iii) to otherwise secure the ends of justice.::: Downloaded on - 13/09/2024 20:32:29 :::CIS 15
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24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when exercise is justified by the tests specifically laid .
down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute."
8. Given the varied nature of cases that come before the High Courts, any strict test as to when the court's extraordinary powers can be exercised is likely to tie the court's hands in the face of future injustices. This Court in State of Haryana v Bhajan Lal6 conducted a detailed study of the situations where the court may exercise its extraordinary jurisdiction and laid down a list of illustrative examples of where quashing may be appropriate. It is not necessary to discuss all the examples, but a few bear relevance to the present case. The court in Bhajan Lal noted that quashing may be appropriate where, (2007) 12 SCC 1 1992 Supp (1) SCC 335 "102. (1) Where the allegations made in the first information report 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.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2). ..........
::: Downloaded on - 13/09/2024 20:32:29 :::CIS 162024:HHC:8296 (7) 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 due to private and personal grudge."
In deciding whether to exercise its jurisdiction under Section 482, the Court does not adjudicate upon the veracity of the facts alleged or enter into an appreciation of competing evidence presented. The limited question is whether on the face of the FIR, the allegations constitute a cognizable offence. As this Court noted in Dhruvaram Murlidhar Sonar v State of Maharashtra, 2018 SCC OnLine SC3100 ("Dhruvaram Sonar"):
"13. It is clear that for quashing proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of its inherent powers."
17. Aforesaid law, clearly stipulates that court can exercise power under S.482 of the Code of Criminal Procedure, to quash criminal proceedings, in cases, where the allegations made in the first information report 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.
18. Now being guided by the aforesaid proposition of law laid down by the Hon'ble Apex Court, this Court would make an endeavor to ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 17 2024:HHC:8296 examine and consider the prayer made in the instant petition vis-à-vis factual matrix of the case.
.
19. No doubt, in the instant case, it is not in dispute that petitioner herein neither belong to Police Department nor is a member of any trade union, rather he claims himself to be member of political outfit i.e. Samta Dal Sena Party. It is also not in dispute that posts, which were considered to be posted with an intention to create disharmony in the society, were uploaded by the petitioner on Facebook page 'Tehlka Himachal Aap ki Awaz'. It has been claimed on behalf of petitioner that he being a member of one political outfit had been raising issues relating to general public on social media from time to time and in that process, he also raised issue with regard to discrimination being meted to person given appointment in Police Department on contract basis.
20. Bare perusal of posts uploaded on social media by the petitioner (Annexure R-1 Colly), annexed by the respondents with the reply (available at page Nos. 10 to 44) suggests that repeatedly attempt came to be made on behalf of petitioner to apprise State Government with regard to difficulties being faced by the Police officials, who despite being paid meager salary, were also being made to work for 24 hours in a day. Though Mr. Rajan Kahol, learned Additional Advocate General, while referring to aforesaid posts repeatedly ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 18 2024:HHC:8296 argued that same had tendency/potential of creating disharmony among the two sections of the society, but this Court is not persuaded .
to agree with Mr. Rajan Kahol, learned Additional Advocate General, for the reason that at no point of time petitioner ever attempted to instigate or provoke Police officials to raise protest against Government, rather he himself warned Government as well as its officials that in case, needful is not done for the welfare of the Police officials, he would be compelled to launch agitation against the Government. No doubt, words and expressions used by the petitioner in the posts uploaded by him on social media suggests that he repeatedly reminded Government and Department that in case, needful for the welfare of the Police officials is not done within shortest possible time, they may start protest, but certainly there appears to be no intent, if any, on the part of the petitioner to provoke or incite police officials to start protest against government for non-implementation of their demands. Initially, case under Section 124-A, 153-B, 120-B and 505 of Indian Penal Code and Section 3 of Police (Incitement to Disaffection) Act was lodged against the petitioner, but after completion of investigation, charges under Sections 124-A, 153-A and 120-B were dropped and charges under Section 505 of Indian Penal Code and Section 3 of Police (Incitement to Disaffection) Act were retained.
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21. Before ascertaining the claim of learned Legal Aid Counsel for the petitioner that no case is made out against the petitioner under .
Section 505 of Indian Penal Code and Section 3 of Police (Incitement to Disaffection) Act, it would be apt to take note of aforesaid provisions of law:
"Section 505 of Indian Penal Code (1)Whoever makes, publishes or circulates any statement, rumour or report,--(a)with intent to cause, or which is likely to cause, any officer, soldier, sailor or airman in the Army, Navy or Air Force of India to mutiny or otherwise disregard or fail in his duty as such; or
(b)with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility; or
(c)with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both.
Section 3 of Police (Incitement to Disaffection) Act Penalty for causing disaffection, etc :-
Whoever intentionally causes or attempts to cause or does any act which he knows is likely to cause, disaffection towards the Government established by law in 2 [India] amongst the members of a police-force, or induces or attempts to induce, or does any act which he knows is likely to induce, any member of a police-force to withhold his services or to commit a breach of discipline shall be punished with imprisonment which may extend to six months, or with tine which may extend to two hundred rupees, or with both."::: Downloaded on - 13/09/2024 20:32:29 :::CIS 20
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22. Section 505 (1) (a) deals with situation, where person charged with aforesaid provision of law, makes, publishes or circulates any .
statement, rumour or report with intent to cause, or which is likely to cause, any officer, solider, sailor or airman in the Army, Navy or Air Force of India to mutiny or otherwise disregard or fail in his duty.
Section 505 (1) (b) deals with a situation, where person charged with aforesaid provision of law, makes, publishes or circulates any statement, rumour or report with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility. Section 505 (1) (c) deals with situation, where person charged with aforesaid provision of law, makes, publishes or circulates any statement, rumour or report with intent to incite, or which is like to incite, any class or community of persons to commit any offence against any other class or community.
After having perused aforesaid provision of law, this Court is persuaded to agree with Ms. Neelam Kaplas, learned Legal Aid Counsel for the petitioner, that no case, if any, is otherwise made out against the petitioner under Sections 505 (1) (a) and 505 (1) (c) because admittedly this is not a case where attempt ever came to be made by the petitioner to incite or provoke members of the disciplined forces like Army, Navy or Air Force to mutiny or show disregard to ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 21 2024:HHC:8296 their duty. Similarly, there is nothing to suggest that petitioner by posting objectionable posts on social media attempted to incite any .
class or community of the persons to commit any offence against any other class or community, rather precise allegation against him is that by posting objectionable posts, he attempted to incite/provoke police officials to raise protest against Government for fulfillment of their demands.
23. Exception to aforesaid provision of law is very important, which clearly provides that it would not amount to an offence within the meaning of this Section when the person making, publishing or circulating any statement, rumour or report has reasonable ground for believing that such statement, rumour or report is true and makes, publishes or circulates it in good faith and without any such intent to create public disharmony. Mens rea is necessary postulate for the offence under Section 505 of Indian Penal Code. Reliance in this regard is placed upon Bilal Ahmed Kaloo Vs. State of Andhra Pradesh, (1997) 7 SCC 431, wherein Hon'ble Apex Court has held that no doubt, publication or circulation is sine qua non under Section 505(2) of Indian Penal Code, but to bring offence, if any, under the ambit of aforesaid provision of law prosecution is always under obligation to prove mens rea. There is no denial of the claim of the petitioner that he being member of political outfit had been earlier ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 22 2024:HHC:8296 raising issue of public importance on social media. True, it is that there is nothing to suggest that petitioner is a member of trade union .
or a journalist, but certainly, being a citizen of the country, he is always at liberty to raise the issue of public importance, but such issues should not be raised with intention to create public disorder.
24. Section 3 of deals with a situation where a person intentionally causes or attempts to cause any act which he knows is likely to cause disaffection amongst the members of the Police force towards the Government or a situation where a person induces or attempts to induce any member of police force to withhold his services or to commit a breach of discipline. This offence is punishable with either imprisonment, which may extend to six months, or with fine, which may extend to two hundred rupees, or with both.
25. By now it is well settled that criticism of public measures or comment on Government action, however, strongly worded would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words written or spoken etc., which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public.
However, careful perusal of alleged objectionable posts uploaded on social media by the petitioner cannot be said to have tendency of ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 23 2024:HHC:8296 creating public disorder or any kind of threat to the security of the nation or the state. Otherwise also to bring case against the petitioner .
in the ambit of Section 505(b) of Indian Penal Code, prosecution is under obligation to prove that petitioner had an intent to cause fear or alarm to the public or he had knowledge that by creating such fear or alarm to the public, there may be danger to the public tranquility.
There is nothing on record to suggest that by uploading objectionable posts, as taken note hereinabove, attempt, if any, ever came to be made by the petitioner to induce police officials to commit an offence against the State. There is no material available on record suggestive of the fact that by uploading objectionable posts, petitioner ever called upon police officials to start agitation against the Government or stop doing their duties, rather he straightaway addressed issue with regard to welfare of Police officials to Hon'ble Chief Minister of Himachal Pradesh and Director General of Police, thereby reminding them that in case, needful is not done at the earliest, there may be unrest among the police officials.
26. At this stage, it would be apt to take note of judgment passed by Hon'ble Apex Court in case titled Kedar Nath Singh Vs. State of Bihar, AIR 1962 Supreme Court 955 (V 49 C 130), wherein Hon'ble Apex Court, held that provisions of Sections 124-A and 505(b) of Indian Penal Code are not unconstitutional as being violative of the ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 24 2024:HHC:8296 fundamental right of freedom of speech and expression under Article 19 (1) (a) of the Constitution. The restrictions imposed by the .
impugned provisions cannot be said to be in the interest of public order and within the ambit of permissible legislative interference with that of fundamental right. In aforesaid judgment, Hon'ble Apex Court held that it is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. In aforesaid judgment, Hon'ble Apex Court specifically held that when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law person can be charged with aforesaid provision of law. Relevant paras of the aforesaid judgment are as under:
"25. It has not been contended before us that if a speech or a writing excites people to violence or have the tendency to create public disorder, it would not come within the definition of 'sedition'.
What has been contended is that a person who makes a very strong speech or uses very vigorous words in a writing directed to a very strong criticism of measures of Government or acts of public officials, might also come within the ambit of the penal section. But, in our opinion, such words written or spoken would be outside the scope of the section. In this connection, it is pertinent to observe that the security of the State, which depends upon the maintenance of law and order is the very basic consideration upon which legislation, with a view to punishing offences against the State, is undertaken. Such a legislation has, on the one hand, fully to protect ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 25 2024:HHC:8296 and guarantee the freedom of speech and expression, which is the sine quo non of a democratic form of Government that our Constitution has established. This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty .
cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case. But the freedom has to be guarded again becoming a licence for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. The Court, has, therefore, the duty cast upon it of drawing a clear line of demarcation between the ambit of a citizen's fundamental right guaranteed under Art. 19(1)
(a) of the Constitution and the power of the legislature to impose reasonable restrictions on that guaranteed right in the interest of, inter alia, security of the State and public order. We have, therefore, to determine how far the ss. 124A and 505 of the Indian Penal Code could be said to be within the justifiable limits of legislation. If it is held, in consonance with the views expressed by the Federal Court in the case of Niharendu Dutt majumdar v. The King Emperor(1) that the gist of the offence of 'sedition' is incitement to violence or the tendency or the intention to create public disorder by words spoken or written, which have the tendency or the effect of bringing the Government established by law into hatred or contempt or creating disaffection in the sense of disloyalty to the State in other words bringing the law into line with the law of sedition in England, as was the intention of the legislators when they introduced s. 124A into the Indian Penal Code in 1870 as aforesaid, the law will be within the permissible limits laid down in cl. (2) of Art. 19 of the Constitution, if on the other hand we give a literal meaning to the words of the section, divorced from all the antecedent background in which the law of sedition has grown, ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 26 2024:HHC:8296 as laid down in the several decisions of the Judicial Committee of the Privy Council, it will be true to say that the section is not only within but also very much beyond the limits laid down in cl. (2) aforesaid.
.
26. In view of the conflicting decisions of the Federal Court and of the Privy Council, referred to above, we have to determine whether and how far the provisions of ss. 124A and 505 of the Indian Penal Code have to be struck down as unconstitutional. If we accept the interpretation of the Federal Court as to the gist of criminality in an alleged crime of sedition, namely, incitement to disorder or tendency or likelihood of public disorder or reasonable apprehension thereof, the section may lie within the ambit of permissible legislative restrictions on the fundamental right of freedom of speech and expression. There can be no doubt that apart from the provisions of (2) of Art. 19, ss. 124A and 505 are clearly violative of Art. 19(1)(a) of the Constitution. But then we have to see how far the saving clause, namely, cl.(2) of Art. 19 protects the sections aforesaid. Now, as already pointed out, in terms of the amended cl. (2), quoted above, the expression "in the interest of...public order" are words of great amplitude and are much more comprehensive than the expression "for the maintenance of", as observed by this Court in the case of Virendra v. The State of Punjab (1). Any law which is enacted in the interest of public order may be saved from the vice of constitutional invalidity. If, on the other hand, we were to hold that even without any tendency to disorder or intention to create disturbance of law and order, by the use of words written or spoken which merely create disaffection or feelings of enmity against the Government, the offence of sedition is complete, then such an interpretation of the sections would make them unconstitutional in view of Art. 19(1)
(a) read with cl. (2). It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 27 2024:HHC:8296 with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations .
appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order. It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress (vide (1)). The Bengal Immunity Company Limited v. The State of Bihar (1) and (2) R.M.D. Chamarbaugwalla v. The Union of India (2). Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.
27. We may also consider the legal position, as it should emerge, assuming that the main s. 124A is capable of being construed in the literal sense in which the Judicial Committee of the Privy Council has construed it in the cases referred to above. On that assumption, it is not open to this Court to construe the section is such a way as to avoid the alleged unconstitutionality by limiting the application of the section in the way in which the Federal Court intended to apply it ? In our opinion, there are decisions of this Court which amply justify our taking that view of the legal position. This Court, in the case of R.M.D. Chamarbaugwalla v. The Union of India (1) has examined in detail the several decisions of this Court, ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 28 2024:HHC:8296 as also of the Courts in America and Australia. After examining those decisions, this Court came to the conclusion that if the impugned provisions of a law come within the constitutional powers of the legislature by adopting one view of the words of the .
impugned section or Act, the Court will take that view of the matter and limit its application accordingly, in preference to the view which would make it unconstitutional on another view of the interpretation of the words in question. In that case, the Court had to choose between a definition of the expression 'Prize Competitions" as limited to those competitions which were of a gambling character and those which were not. The Court chose the former interpretation which made the rest of the provisions of the Act, Prize Competitions Act (XLII of 1955), with particular reference to ss. 4 and 5 of the Act and Rules 11 and 12 framed thereunder, valid. The Court held that the penalty attached only to those competitions which involved the element of gambling and those competitions in which success depended to a substantial degree on skill were held to be out of the purview of the Act. The ratio decidendi in that case, in our opinion, applied to the case in hand in so far as we propose to limit its operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.
28. We do not think it necessary to discuss or to refer in detail to the authorities cited and discussed in the reported case R.M.D. Chamarbaugwalla v. The Union of India (1) at pages 940 to 952. We may add that the provisions of the impugned sections, impose restrictions on the fundamental freedom of speech and expression, but those restrictions cannot but be said to be in the interest of public order and within the ambit of permissible legislative interference with that fundamental right.
29. It is only necessary to add a few observations with respect to the constitutionality of s. 505 of the Indian Penal Code. With reference to each of the three clauses of the section, it will be found ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 29 2024:HHC:8296 that the gravamen of the offence is making, publishing or circulating any statement, rumour or report (a) with intent to cause or which is likely to cause any member of the Army, Navy or Air Force to mutiny or otherwise disregard or fail in his duty as such; or (b) to .
cause fear or alarm to the public or a section of the public which may induce the commission of an offence against the State or against public tranquillity; or (c) to incite or which is likely to incite one class or community of persons to commit an offence against any other class or community. It is manifest that each one of the constituent elements of the offence under s. 505 has reference to, and a direct effect on, the security of the State or public order.
Hence, these provisions would not exceed the bounds of reasonable restrictions on the right of freedom of speech and expression. It is clear, therefore, that cl. (2) of Art. 19 clearly save the section from the vice of unconstitutionality.
27. In similar facts and cases, journalist namely Vinod Dua had made some comments on YouTube with regard to infrastructure provided by Government of India during Covid-19, wherein FIR under Sections 124-A, 268, 501 and 505 of Indian Penal Code was registered in the State of Himachal Pradesh, Hon'ble Apex Court while entertaining petition under Section 32 of Constitution of India in case titled Vinod Dua Vs. Union of India & Ors., HLJ 2021(SC) (1) 657 once again deliberated upon the scope of Section 505 of Indian Penal Code and held as under:
"43. The Principles culled out in paragraph 33 hereinabove from the decision of Court in Kedar Nath Singh { (1962) Supp. 2 SCR 769 } show that a citizen has a right to criticize or comment upon the measures undertaken by the ::: Downloaded on - 13/09/2024 20:32:29 :::CIS 30 2024:HHC:8296 Government and its functionaries, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder; and that it is .
only when the words or expressions have pernicious tendency or intention of creating public disorder or disturbance of law and order that Sections 124A and 505 of the IPC [Indian Penal Code] must step in.
In our view, the statements by the petitioner as mentioned hereinabove, if read in the light of the principles emanating from the decision in Kedar Nath Singh { (1962) Supp. 2 SCR 769 } and against the backdrop of the circumstances when they were made, can at best be termed as expression of disapprobation of actions of the Government and its functionaries so that prevailing situation could be addressed quickly and efficiently. They were certainly not made with the intent to incite people or showed tendency to create disorder or disturbance of public peace by resort to violence. The petitioner was within the permissible limits laid down in the decision of this Writ Petition (Criminal) No.154 of 2020 Vinod Dua vs. Union of India & Ors. Court in Kedar Nath Singh { (1962) Supp. 2 SCR 769 }. It may be that certain factual details in the 3rd statement regarding the date when the ban came into effect were not completely correct. However, considering the drift of the entire talk show and all the statements put together it cannot be said that the petitioner crossed the limits set out in the decision of this Court in Kedar Nath Singh { (1962) Supp. 2 SCR 769 }.
44. We are, therefore, of the firm view that the prosecution of the petitioner for the offences punishable under Sections 124A and 505 (1) (b) of the IPC3 would be unjust. Those offences, going by the allegations in the FIR and other attending circumstances, are not made out at all and any prosecution in respect thereof would be violative of the rights of the petitioner guaranteed under Article 19(1)(a) of the Constitution.::: Downloaded on - 13/09/2024 20:32:29 :::CIS 31
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28. Most importantly in aforesaid judgment Hon'ble Apex Court held that every journalist should be entitled to protection in terms of .
Kedar Nath Singh (supra) as every prosecution under Sections 124- A and 505 of Indian Penal Code must be in strict conformity with scope and ambit of said section and in complete in tune with the law laid down in Kedar Nath Singh (supra).
29. Having seen the content of the posts, which are considered to be objectionable having tendency to create public disorder, this Court is persuaded to agree with learned Legal Aid Counsel for the petitioner that no case much less under Section 505 of Indian Penal Code and Section 3 of Police (Incitement to Disaffection) Act is made out against the petitioner and as such, no fruitful purpose would be served by permitting prosecution on the basis of FIR, which otherwise does not disclose commission of offence punishable Section 505 of Indian Penal Code and Section 3 of Police (Incitement to Disaffection) Act. Since prosecution is bound to fail in all probabilities for the reasons discussed hereinabove, no fruitful purpose would be served by putting the petitioner to the ordeal of protracted trial, which is otherwise bound to culminate in the acquittal of the accused.
30. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, this court finds merit in the present petition and accordingly, the same is allowed.
::: Downloaded on - 13/09/2024 20:32:29 :::CIS 322024:HHC:8296 FIR No. 0001 of 2021 dated 21.01.2021, under Sections 124-A, 153- A, 505 read with Section 120-B of Indian Penal code and under .
Section 3 of Police (Incitement to Disaffection) Act, 1992, registered at Police Station Shimla, District Shimla, Himachal Pradesh, as well as consequent proceedings, are quashed and set aside.
31. The petition stands disposed of in the aforesaid terms, alongwith all pending applications.
September 03, 2024
(sunil)
r to (Sandeep Sharma),
Judge
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