Jammu & Kashmir High Court - Srinagar Bench
Fayaz Ahmad Kaloo & Anr vs State And Ors on 25 October, 2018
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
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HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Case no: Date of decision: 25.10.2018
OWP no.92/2005
with IA no.07/2005
Fayaz Ahmad Kaloo & anr. v State of J&K
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
Appearance:
For Petitioners: Mr. B. A. Bashir, Sr. Advocate, with
Ms. Farah Bashir, Advocate.
For Respondent: Mr. B. A. Dar. Sr. AAG.
___________________________________________________________
i) Whether to be approved for reporting in law journal: YES/No.
ii) Whether to be approved for reporting in press/media: YES/No.
1. This petition, filed by the Editor, Printer and Publisher of a local English Daily, namely, the Greater Kashmir, and one of its Correspondents, seeks quashing of FIR no.29/2005 registered on 28.02.2005 at Police Station Kothibagh, Srinagar, against the petitioners allegedly for the commission of offences under Sections 13 of Unlawful Activities (Prevention) Act, 1967; 505 of Ranbir Penal Code and 10 of Criminal Law Amendment Act, 1983.
2. I heard learned counsel for the parties and considered the matter.
3. Before I come to the grounds taken in the petition, I deem it appropriate to refer to the allegations contained in the First Information Report, a photocopy whereof has been placed on record as annexure to the writ petition.
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4. Perusal of the FIR reveals that the allegation against the petitioners is that on 27.02.2005 they, in their aforesaid Newspaper, published a news item/report, under the caption: "400 feared dead in Warwan alone?" with the sub-caption "conversation between militants only 'authentic' input for Govt.". According to the FIR, the two accused, petitioners herein, deliberately, with criminal intent, spread rumours by publishing the said lead in the newspaper which, according to the respondents, was baseless and incorrect. It is alleged that thereby in Warwan, in particular, and the Kashmir Valley, in general, which included the area of the Police Station, an atmosphere of fear and alarm was created. It is alleged that they intentionally instigated the people of the State to disturb the peace and tranquilly. It is further alleged in the FIR that the accused by carrying the baseless and incorrect news item in the newspaper helped the militants, who were challenging the accession of Kashmir to India, to spread hatred against the Government. So this way the accused supported and helped the unknown terrorists in creating a liking for them amongst the masses. On these counts, it is alleged in the FIR that the accused committed the aforesaid offences under Section 13 of Unlawful Activities (Prevention) Act, 1967; Section 505 of Ranbir Penal Code; and Section 10 of Criminal Law Amendment Act, 1983.
5. The petitioners in their writ petition have averred that the news item was neither intended to spread, nor did it, in fact, spread any rumours. It is asserted that it was also neither baseless nor intended to cause any disturbance or to encourage any terrorist organization or create sympathy for any militant organization or create any hatred against the Government.
3|Page It is averred that the statements made in the FIR are not linked, in any manner, with the news item, and that the inference and implications of the news item stated in the FIR are farfetched and baseless. It is averred that there is no nexus, muchless reasonable, between the evaluation of the news item made by the complainant and the contents of the news item. It is the case of the petitioners that the petitioners enjoy the fundamental right of freedom enunciated by Article 19 of the Constitution of India. It is asserted that the law is that Press has a dual character as a medium of expression and of business, with only the limitations contained in Clause (2) and (6) of Article 19 of the Constitution. The petitioners have elucidate in the petition the factual scenario in the context of which the news item was published and contend that the inferential statements or implications deduced in the FIR are unfounded and, consequently, the offences alleged against them are not made out.
6. It may be mentioned that when the writ petition came up for consideration on 25.03.2005, the Court, while issuing notice, ordered that the petitioners shall not be arrested in connection with the FIR in question and that the entire record of the case be sent for.
7. The respondents filed their objections/reply on 14.07.2005 where, in para 2, under the heading 'brief resume of the case', they averred as under:
"That the investigation of the case was taken up by SDPO, Kothibagh. During the course of investigation, the documentary, as well as oral evidence was collected and from the material gathered during the investigation it precipitated that the accused-petitioner is involved in the commission of offence falling under Section 505 RPC and 10 Criminal Law Amendment Act and 13 Unlawful Activities (P) Act. By
4|Page publishing the news item a challenge has been thrown to the accession of the State of J&K with the Union of India and from the published article it has also been inferred that the news item has an effect of encouraging the carders of militants for increasing graph of the militant activities."
(Underlining supplied) Apart from the above, it was stated in the preliminary objections that the writ petition merited dismissal, for, the investigation of the case stood completed, and that the case was being taken up through proper channel for accord of sanction to prosecute against the petitioner-accrued.
8. As to the grounds of challenge taken in the writ petition, the respondents in their objections/reply stated that the right of the petitioners under Article 19 of the Constitution of India is not denied, but this will not entitle the newspaper to make such publication as has the intention to cause mischief or fear or alarm to public or to any section of public, whereby any person may be induced to commit an offence against the State or against public tranquillity, and further that the petitioners had no right to publish an untrue news item.
9. It also needs a mention here that after filing of the aforesaid reply/objections by the respondents, the case appears to have been heard by a Coordinate Bench of this Court and the Court, by order dated 08,09.2006, admitted the writ petition to hearing. By the same order, apart from making the earlier interim direction dated 25.03.2005 absolute, the Court further ordered as under:
"...The entire record of the case including the FIR and any proceedings initiated thereon be summoned. The respondents are directed not to proceed ahead with the investigation of the case under FIR no.29/05 in P/S Kothi Bagh, Srinagar."
5|Page The Court in the penultimate para of the aforesaid order, directed issuance of notice to the respondents for filing counter within six weeks.
10. It may be noted that the aforesaid order was passed and announced in presence of the learned Additional Advocate General appearing for the State-respondents.
11. From 08.09.2006 till date, i.e., despite lapse of more than twelve years now, the respondents did not choose to file the counter affidavit in terms of order dated 08.09.2006. Apparently, noticing the lack of interest on the part of the respondents to file their counter in order to contest the writ petition, in the interregnum, the Court on 28.10.2015 directed the State counsel to file the latest status report about the investigation of the FIR in question. Such status report was filed only on 23.03.2017 wherein it was, inter alia, stated that the investigation of the case has been closed as challaned against the accused and government sanction has been obtained from the Home Department. The Court by order dated 15.12.2017 directed the respondents to file counter-affidavit within four weeks with an advance copy to the petitioners who, in turn, were given two weeks' time to commence thereafter for filing rejoinder, if any. It was specifically stipulated in the order that in default, the right to file the same shall stand closed. The counter was again not filed. However, further opportunity as last and final one, was given to the respondents on 07.02.2018 to file the same. When on expiry of the time so granted, the counter was not filed, their right to file the counter stood closed and the case was heard in part on 01.03.2018. When the case again came up for arguments on 02.03.2018, Mr. B. A. Dar, learned Sr. AAG, was directed to keep the Case Diaries available for perusal of the Court. On 04.10.2018,
6|Page Mr. B. A. Dar, learned Sr. AAG, appearing for the respondents, made a statement before the Court that sanction for prosecution of the petitioners had been obtained from the competent authority. In light of this categorical stand taken in the above status report so filed on behalf of the respondents, which has been supported by an affidavit sworn in by Rashid Ahmad, Station House Officer, Police Station, Kothibagh, and the statement made at the Bar by none other than the learned Additional Advocate General representing the State, on 04.10.2018, this Court by order dated 04.10.2018 directed the learned AAG to produce a copy of such Sanction Order accorded by the Government before the Court for its perusal on the next date. However, the sanction order, too, was not produced. The Case Diaries, as directed to be produced in terms of order dated 02.03.2018 were also not produced. Instead, a communication addressed by the learned Addl. Advocate General to the Registrar Judicial, High Court of J&K, Srinagar, alongwith a the communication bearing no.CRB/2005/SDPOK/6587-88 dated 15.10.2005 addressed by him to the learned Advocate General, were brought on record of the petition in terms of application dated 02.04.2005 of the Chief Prosecuting Officer, whereby it was brought to the notice of the Court that the case file / case diaries had been submitted to the Government for accord of sanction and, therefore, could not be produced before the Court. This, however, would not lend an excuse to the Government not to produce the case file and/or the case diaries before the Court for its perusal. The fact is that the same were not produced despite directions made in that behalf.
12. Given the above facts and circumstances, the respondents have failed to produce any material before the Court for its perusal. The respondents have, rather, deliberately chosen to hold back the relevant
7|Page material, if at all there was any, from this Court, for reasons best known to them. In law, this Court is within its powers to draw a legal inference against the respondents in this regard to the effect that had they produced such material before the Court, the allegations levelled in the FIR on the basis of the subjective evaluation of the news report made by the concerned SHO would be wholly rebuffed.
13. The horrible scenario, rather the natural calamity that had befallen the people of the Valley of Kashmir, including some hilly parts of the Jammu Division by reason of an unprecedented heavy snow fall in February 2005, has to be borne in mind while evaluating the news report in question. The same newspaper below the very same caption carried other news items concerning the tale of death and survival in other parts of the Valley, like in the village Wattengo (Nar) Qazigund, and the serious efforts undertaken by the State to reach out to the needy. For instance, in the same news-report, it was stated that a number of ministers of the district alongwith MLA of the area landed there and also conducted aerial survey of District Doda. Again, in the adjacent column, under a different heading, the newspaper had reported that Government had summoned teams of ITBP personnel, specially trained in working in hostile environment and avalanche hit areas, equipped with special equipment, for rescue operations. Not only that, it was also reported, again under a different heading, that the Chief Minister had visited Waltengo etc. This only establishes that the Newspaper was reporting facts to the people, not to create any alarm but to keep them informed about the serious efforts of varied nature undertaken by the Government to meet the calamity and reach out to the distressed people living in far flying and remote areas of
8|Page the State, especially those areas which had been cut off from other parts of the State. Attributing any mischief to such a reporting is surely farfetched and a figment of subjective perception. This is also substantiated by the fact that the alleged offending headline is in the nature of a statement closed by a question mark; it is not an interrogatory sentence. According to my personal view, based on usage of English language, when a simple statement is closed by a question mark, it bears sarcasm against the content of the statement; for instance, someone, hearing something unbelievable, utters in exclamation: "what?". Such exclamation cannot be offending, nor can it constitute an offence, or be read through a prism of preconceived notion.
14. Now, the important question that arises for consideration is as to in what circumstances an FIR can be quashed. The Supreme Court, in State of Haryana v. Bhajan Lal, 1992 Supp (I) SCC 335, has illustrated the categories of cases wherein the extraordinary power under Article 226 or the inherent powers under Section 482 Cr. P. C., corresponding to Section 561-A of the State Criminal Procedure Code, can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The illustrations so given in the judgment are as under:
"(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
9|Page 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) of the Code;
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused;
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.
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 my opinion, this case falls under the very first category of the above cases, viz. that if the allegations made in the first information report are 10 | P a g e taken at their face value and accepted in their entirety, they do not prima facie constitute the offences alleged against the accused-petitioners.
15. The first offence alleged against the petitioners is Section 13 of the Unlawful Activities Act. It reads as under:
"13. Punishment for unlawful activities.--
(1) Whoever--
(a) takes part in or commits, or
(b) advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine.
(2) Whoever, in any way, assists any unlawful activity of any association declared unlawful under section 3, after the notification by which it has been so declared has become effective under sub-section (3) of that section, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both.
(3) Nothing in this section shall apply to any treaty, agreement or convention entered into between the Government of India and the Government of any other country or to any negotiations therefor carried on by any person authorised in this behalf by the Government of India."
This Section actually prescribes punishment for an unlawful activity which term itself is defined in Clause (o) of Sub-Section (1) of Section 2 of the Act, which is quoted hereunder:
"(o) 'unlawful activity', in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise).--
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(i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or
(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or (iii|) which causes or is intended to cause disaffection against India;"
Apart from the fact that no material, whatsoever, has been produced before the Court for its perusal as could prima facie make out the allegations as to the commission of the aforesaid offence against the petitioners, the activity as defined in the aforesaid provision of law is not attributed to any of the two accused in the FIR.
16. Coming to the offence under Section 505 RPC alleged against the petitioners, reading the newspaper reports of the day as a whole, and the allegations contained in the FIR, there is no such statement made therein from which a prudent person could make out or even deduce that it was intended to create any alarm etc. to bring it within the ingredients of the offence under section 505 RPC. Given the fact that most of the State's territory was under the cover of a thick blanket of snow caused by unprecedented snow fall as a result numerous far and off habitations were inaccessible and, in fact, avalanches had been reported in certain habitations, the report could not be untruthful keeping in view the topography of the locality named in the news report. It be noted that the exception appended to the Section reads that it does not amount to an offence, within the meaning of this Section, when the person making,
12 | P a g e publishing or circulating any such statement, rumour or report, has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it in good faith and without any such intention as aforesaid. So, the allegation made against the petitioners is also excepted by the Section itself.
17. Similar is the case vis-a-vis the allegation of commission of the offence under Secretion 10 of the Criminal Law Amendment Act, 1983, which prescribes punishment for unlawful activity defined in Section 2(b) thereof. Having read the FIR, the news report, the relevant provisions of law, I am convinced that even if the allegations levelled against the petitioners are taken on their face value, the offence(s) alleged against the petitioners are not at all, prima facie, attracted.
18. In view of the above, this petition deserves to be allowed and it is so allowed. Resultantly, the impugned FIR is quashed. The connected IA and the interim directions passed in the petition shall abide by the final result of the petition as aforesaid. The petitioners shall stand discharged from the bail bonds, if any, furnished by them at any stage of the proceedings.
20. No order as to costs.
(Ali Mohammad Magrey) Judge Srinagar, 25.10.2018 Syed Ayaz, Secretary.