Jammu & Kashmir High Court - Srinagar Bench
Vijay Gupta vs Ut Of J&K & Anr on 4 August, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 29.07.2022
Pronounced on:04.08.2022
CRM(M) No.327/2019
VIJAY GUPTA ... Petitioner(s)
Through: - Mr. Javid Hameed, Advocate.
Vs.
UT OF J&K & ANR. ...Respondent(s)
Through: - Mr. Sajad Ashraf, GA
CORAM: HON‟BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner has challenged FIR No.47/2013 for offence under 505 of RPC registered with Police Station, Shaheed Gunj, Srinagar.
2) As per the impugned FIR, Daily newspaper „Young Bites‟ had, in its edition dated 13th July, 2013 on page (7), published a news item under the caption "grenade blast kills four tourists in Kashmir hotel, four women injured". As per the impugned FIR, the said news item was published in the newspaper with an intention to create scare amongst the tourists planning to visit Kashmir Valley.
3) The petitioner, who happens to be the owner-cum-Managing Director of the newspaper Young Bites, has challenged the impugned FIR on the grounds that the allegations made therein do not make out 2 CRM(M) No.327/2019 any offence against him; that a corrigendum in respect of the subject news item had been issued in the same newspaper on first page in its daily edition dated 14th June, 2013, i.e. on the very next day, but without taking that into account, the impugned FIR has been lodged which is not sustainable in law and that the ingredients of the offence under Section 505 of RPC are not made out from the allegations made in the impugned FIR.
4) Response to the petition has been filed by the respondent-State. In its response, besides narrating the allegations made in the impugned FIR, it has been submitted that after completing the investigation, the matter was placed before the District Magistrate and sanction for prosecution against the petitioner had been obtained. It has been further submitted that after investigation of the case, offence under Section 505RPC stands established against the petitioner.
5) I have heard the learned counsel for the parties and perused the material on record including the Case Diary.
6) The first contention that has been raised by learned counsel for the petitioner is that the contents of the impugned FIR, even if taken at their face value, do not satisfy the ingredients of offence under Section 505 of RPC and, as such, the impugned FIR is liable to be quashed.
7) In order to determine the merits of the aforesaid contention raised by the learned counsel, it would be apt to notice the legal position as regards contours of Section 505 of the RPC. This Court, 3 CRM(M) No.327/2019 while interpreting the aforesaid provision in the case of Mohammad Salim Pandit vs. State of J&K & anr. 2020 (5) JKJ[HC] 209, has, after noticing the aforesaid provision, observed as under:
"8.Clause (b) quoted above, on which prosecution basis itself, is in two parts. The first part of the clause deals with a situation where an accused person makes, publishes or circulates any statement, rumour or report with intent to cause, fear or alarm to the public or any section of the public whereas the second part of that clause is confined to making, publishing or circulating any statement, rumour or report which is likely to cause fear or alarm to the public or any section of the public. In both the situations, the fear or alarm must induce a person to commit an offence against the State or against public tranquility
9. As per Oxford's Dictionary, word "induce" means succeed in persuading or leading (someone) to do something. Similarly, Black's Law Dictionary defines "inducement" as the act or process of enticing or persuading another person to take a certain course of action. Thus, making, publishing or circulating a statement or rumour with intent to create a fear or alarm to the public must persuade any person to commit an offence against the State. Mere making or publishing of a statement or rumour creating fear or alarm in the absence of inducement of a member of public to commit an offence against the State would not satisfy the ingredients of offence under Section 502(1)(b) of RPC."
8) From the aforesaid enunciation of law on the subject, it is clear that, in order to satisfy the ingredients of Section 505(1)(b) of the RPC, it has to be shown from the contents of the FIR and the material collected by the investigating agency during the investigation of the case that the prosecution has not only to show that the making, publishing or circulating the report is likely to cause fear or alarm to the public or any section of the public, but it has also to be shown that the 4 CRM(M) No.327/2019 fear or alarm must induce a person to commit an offence against the State or against public tranquility. Mere making or publishing of a statement or rumour creating fear or alarm in the absence of inducement of a member of public to commit an offence against the State would not satisfy the ingredients of offence under Section 505(1)(b) of RPC.
9) Coming to the instant case, as per the allegations made in the impugned FIR, the newspaper of the petitioner has published a false news item whereby it has been reported that „grenade blast has killed four tourists in a Kashmir hotel‟. The material on record does suggest that the said news items is false but there is nothing on record of the case to even remotely suggest that as a consequence of this news items, which definitely was likely to cause fear or alarm to the public, any person has been induced to commit an offence against the State or against the public tranquility. Although the respondents have completed the investigation of the case, yet I could not find anything worth the name in the Case Diary to show that any person was induced to commit any offence against the State as a consequence of the aforesaid false news item. Thus, the second ingredient of the offence under Section 505(1)(b) of the RPC has not been established by the respondents even after investigating the case for about nine years.
10) There is yet another aspect of the matter which is required to be noted. The newspaper owned by the petitioner has published a corrigendum expressing regrets and apology for having published the 5 CRM(M) No.327/2019 subject news item in the newspaper. The said corrigendum has been published on the front page of the newspaper on the very next day i.e. on 14th July, 2013. This clearly shows that the petitioner while publishing the said news item did not have any intention to cause fear or alarm in the public
11) The Supreme Court has, in the case of Bilal Ahmad Kaloo Vs. State of Andhra Pradesh, 1997(3) Crimes 130 (SC), while relying upon its judgment in Balwant Singh &anr. Vs. State of Punjab, (1995) 3 SCC 214, held that mens rea is an essential postulate for the offence under Section 505 IPC as could be discerned from the words "with intent to create or promote or which is likely to create or promote" as used in clause (c) of sub-section (1). The Court further went on to hold that a person who has not done anything as against any religious, racial or linguistic or regional group or community cannot be held guilty of either the offence under Section 153A or under Section 505(2) of IPC.
12) Thus, without there being any material on record to suggest that the petitioner by publishing the subject news item in his newspaper intended to cause alarm or fear in the public, it cannot be stated that the office under Section 505 RPC is made out against him. In fact, the publication of corrigendum by the petitioner in his newspaper on the very next day goes on to show that he never intended to cause any alarm or fear in the public by publication of the subject news item.
13) Apart from the above, the investigation of the case is pending since the year 2013 and the investigating agency has been unable to 6 CRM(M) No.327/2019 complete the investigation even after a lapse of nine years. Continuance of the criminal proceedings against the petitioner in these circumstances, particularly keeping in view the fact that the investigating agency has been unable to gather any material against the petitioner to satisfy the ingredients of Section 505 of RPC all these years, would amount to abuse of process of law.
14) For the foregoing reasons, the present case is fit one where this Court should exercise its inherent powers under Section 561-A of the Jammu and Kashmir Code of Criminal Procedure, which is in pari materia with Section 482 of the Central Code of Criminal Procedure, to quash the FIR. Accordingly, the petition is allowed and the impugned FIR and the proceedings emanating therefrom are quashed.
15) The Case Diary be returned to the learned counsel for the respondents.
(Sanjay Dhar) Judge Srinagar 04.08.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No