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2013 DIGILAW 426 (JK)

Mohd. Afzal Lone v. State Of J&K

2013-07-26

Hasnain Massodi

body2013
1. Petitioners are members of Tehreek-i-Huriyat Jammu & Kashmir, an organisation brought into existence in August 2004 with aims and objects spelt out in its constitution appended as Annexure-A to the petition. Petitioner No.1 is incharge member of publication of the organisation. The organisation in December 2011 published yearly calendar for the year 2012 and also a diary titled "Lail-o-Nahar" for the year 2012. The calendars and diaries so published were seized by police from the booksellers /Newspaper vendors, in different parts of the Valley. The police arrested a number of workers of the organisation on the allegation of being associated with publication and distribution of the aforesaid material. Criminal cases stand registered in different police stations of the province. One such case stands registered by Police Station Anantnag, bearing FIR No.400/2011 under section 13(1)(b) Unlawful Activities (Prevention) Act against petitioners 2 and 3. Petitioners 2 and 3 were also arrested in connection with aforesaid FIR. 2. Petitioners aggrieved with registration of case FIR No.400/2011 and seizure of calendars and diaries published by the organisation, have filed instant petition u/s 103 Constitution of Jammu & Kashmir read with section 561-A and 561-B Cr.P.C. Petitioners' case is that their organisation has not been declared unlawful till date and like any other organisation, has a right to propagate its aims and objects and to publish and circulate its view point and that the publication of calendars and diaries fell within right guaranteed to the petitioners' organisation under Constitution and law. They insist that the calendars and diaries in question, is an effort on the part of the petitioners' organisation to propagate basic teachings of Islam and exhort Muslims to adhere to such teachings. It is denied that the printed material appearing in calendars and diaries, is intended to or aimed at inciting or encouraging commission of any offence or doing any act which may be an offence in terms of any law for the time being in force. 3. Petitioners admit that in terms of section 10 of J&K State Press and Publication Act, Svt. 3. Petitioners admit that in terms of section 10 of J&K State Press and Publication Act, Svt. 1989 (1932 AD), the Government has power to seal a printing press where it appears that the printing press is involved in printing or publishing any material, which incites to or encourages or tends to incite or to encourage, to commission of any offence of any murder or any cognizable offence involved violates or falls within section 10 (1)(b) to (i) and also order seizure of the material so published or printed. It is, however, pleaded that the printed material in question does not fall within the ambit of section 10 of the Act, and therefore the respondents lacked power, authority or jurisdiction to seize said material. It is next pleaded that even seizure in terms of section 10 of State Press and Publication Act, is subject to fulfilment of conditions laid down in the Act and the petitioners have not adhered to or violated any of the conditions laid down in different provisions of the Act. 4. Petitioners insist that the publication and distribution of printed material in question, does not fall within the definition of "unlawful activity" as defined under section 2(o) Unlawful Activities (Prevention) Act, and therefore offence punishable under section 13(1)(b) is not made out even where the allegations set out in FIR No. 400/2011 u/s 13(1)(b) Unlawful Activities (Prevention) Act, are taken at their face value. It is pleaded that FIR No. 400/2011 is liable to be quashed in exercise of powers u/s 561-A and 561-B Cr. P.C and seizure of calendars and diaries, to be set aside as violative of freedom of speech and expression guaranteed to the petitioners, under the Constitution. 5. The respondents oppose the petition on the grounds that the calendars and, diaries published by the petitioners' organisation have "potential of provoking youth of valley and inciting them to indulge in the activities which are prejudicial to the maintenance of law and order in the valley in particular and the State of Jammu & Kashmir in general". It is denied that the calendars and diaries have been published with sole aim of educating people about the basic teachings of Islam and to spread the message of Islam. It is denied that the calendars and diaries have been published with sole aim of educating people about the basic teachings of Islam and to spread the message of Islam. It is pointed out that the calendars and diaries carry particulars of the persons "alleged to have been killed by the security forces" and are intended to be used as a tool to provoke the youth and general masses of the Valley to indulge in anti national activities. The respondents admit to have seized 460 calendars and 23 diaries with the break-up given in para-6 of the reply. The material is said to have been seized in connection with cases registered in different Police Stations of the province under "relevant provisions of law". The petitioner No.1 is said to have a role in publication of calendars and diaries and petitioners 2 and 3 in their distribution. 6. I have gone through the pleadings as also material available on record and have heard learned counsel for the parties. 7. The inherent powers/jurisdiction under section 561-A, Code of Criminal Procedure, it has been emphasized times without number, because of its plentitude is to be exercised rarely, sparingly and with circumspection. The tests for exercise of power are laid down in the provision titled "saving inherent powers of the High Court," itself. The power is to be exercised to give effect to any order under the Code, or to prevent the abuse of process of any code or otherwise to secure the ends of justice. Supreme Court in State of Rajasthan v. Raj Kumar Agarwal 2012 AIR SCW 5362 commending on the ambit and scope of the inherent jurisdiction available under the code observed: ".....the plentitude of the power under section 482 of the Cody by itself makes it obligatory for the High Court to exercise the same with utmost care and caution. Supreme Court in State of Rajasthan v. Raj Kumar Agarwal 2012 AIR SCW 5362 commending on the ambit and scope of the inherent jurisdiction available under the code observed: ".....the plentitude of the power under section 482 of the Cody by itself makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law." Supreme in Court in Satish Mehra v. State of N.C.T. of Delhi 2012 AIR SCW 6442 referring to the parameters for exercise of inherent powers vested by section 561-A of the Code laid down in R.P. Kapoor v. State of Punjab AIR 1960 SCC reiterated the principle in following words: "The power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as may be, prima facie do not disclose a triable offence there can be reason as to why the accused should be made to suffer the agony of a legal proceeding that more often than not gets protracted. A prosecution which is bound to become lame or a sham ought to be interdicted in the interest of justice as continuance thereof will amount to an abuse of the process of the law. This is the core basis on which the power to interfere with a pending criminal proceeding has been recognized to be inherent in every High Court. The power, though available, being extra-ordinary in nature has to be exercised sparingly and only if the attending facts and circumstances satisfies the narrow test indicated above, namely, that even accepting all the allegations levelled by the prosecution, no offence is disclosed. However, if so warranted, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of the charge against the accused. However, if so warranted, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of the charge against the accused. In fact the power to quash a proceeding after framing of charge would appear to be somewhat wider as, at that stage, the materials revealed by the investigation carried out usually comes on record and such materials can be looked into, not for the purpose of determining the guilt or innocence of the accused but for the purpose of drawing satisfaction that such materials, even if accepted in its entirely, do not, in any manner, disclose the commission of the offence alleged against the accused. 8. Having delineated the parameters of inherent jurisdiction under section 561-A Cr. PC, let us shift our attention to the grounds set out in the petition to seek quashment of FIR No.400/2011, seizure of calendars and diaries and the ensuing investigation, in exercise of extraordinary powers under Article 226 Constitution of India / section 103 Constitution of Jammu & Kashmir and inherent jurisdiction U/Ss. 561-A and 561-B Code of Criminal Procedure. 9. The petitioners' case that calendars and diaries published and distributed by the petitioners' organisation have been seized in disregard of section 10 and other provisions of State Press and Publication Act and that the seizure is therefore to be set aside as violative of fundamental right guaranteed under Article 19 of the Constitution of India, is devoid of any merit. The respondents while seizing the calendars and diaries have not at all acted under section 10 of the aforesaid Act, and therefore issuance of a formal order by the Government in terms of section 10 of the Act and adherence to other provisions of the Act was not required. The ground is urged unmindful of the fact that the calendars and diaries have been seized in connection with case FIR 400/2011 P/S Anantnag under section 13 ULA and other such cases registered at different Police stations of the province. The material seized therefore is "case property" in case FIR 400/2011 and other such cases and is proposed to come up as prosecution evidence in the event the investigation is concluded as proved. This takes care of the first limb of the case set up by the petitioners to invoke extra writ jurisdiction of the Court. 10. The material seized therefore is "case property" in case FIR 400/2011 and other such cases and is proposed to come up as prosecution evidence in the event the investigation is concluded as proved. This takes care of the first limb of the case set up by the petitioners to invoke extra writ jurisdiction of the Court. 10. The second limb of the petitioners' case on which the plea for exercise of inherent jurisdiction u/s 561-A and 561-B has its edifice relates to the allegation that the petitioners committed offence punishable u/s 13(1)(b) Unlawful Activities (Prevention) Act, 1967 while publishing the calendars and diaries in as much as the contents of said material fell within definition of "unlawful activity" as defined under section 2(O) Unlawful Activities (Prevention) Act,. Petitioners' case is that the material did not constitute unlawful activity within meaning of the Act, and therefore when the allegations in the FIR 400/2011 were taken at their face value and accepted in their entirety, do not constitute the offence punishable u/s 13(1)(b) Unlawful Activities (Prevention) Act, 1967. The averment as already pointed out is vehemently denied by the respondents. 11. The respondents contend that the petitioners' organisation under the cover of preaching message of Islam, provoke the general population and youth of the State and in particular of the Valley and incite them to indulge in the activities prejudicial to the maintenance of law and order in the Valley and resort to violence. The respondents in this regard refer to the a column on every page of the calendar and also on one of the pages of the diary under the title "Aap bhool to nahein jayeingay" (lest you forget), giving particulars of civilians stated to have been "martyred" by "Qabiz forces" (occupation forces). 12. The respondents in this regard refer to the a column on every page of the calendar and also on one of the pages of the diary under the title "Aap bhool to nahein jayeingay" (lest you forget), giving particulars of civilians stated to have been "martyred" by "Qabiz forces" (occupation forces). 12. Section 2(O) the Unlawful Activities (Prevention) Act 1967 defines unlawful activity as under: ""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), (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 session 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; 13. Section 13 (1)(b) of the Act, also needs to be noticed. It reads:- "13. Punishment for unlawful activities (1) Whoever- (a) ....... (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. 14. The First Information Report (FIR) 400/2011 dated 11.12.2011 u/s 13(1) (b) ULA alleges that the contents of seized material are intended to provoke general masses against the Government established under law and constitution and the effort so made is likely to endanger integrity and sovereignty of the country. The contents of the FIR therefore disclose / constitute the offences alleged therein. The question arises as to whether Court should, in exercise of inherent powers, go beyond FIR and find out whether the material referred to in FIR constitutes the offence alleged in the Report. 15. It is pertinent to point out that investigation in the matter is yet at its infancy in as much as the petition on hand was filed about two weeks after FIR No.400/2011 was registered at Police Station Anantnag. The allegation set out in the FIR is the threshold opinion of SHO Police Station Anantnag. 15. It is pertinent to point out that investigation in the matter is yet at its infancy in as much as the petition on hand was filed about two weeks after FIR No.400/2011 was registered at Police Station Anantnag. The allegation set out in the FIR is the threshold opinion of SHO Police Station Anantnag. Whether publication and distribution of the contents of the seized material, fall within definition of "unlawful activity" as defined under section 2(o) The Unlawful Activities Act 1967, and therefore constitute offence punishable under section 13(1)(b) of the Act is in the first place to be found up by the Investigating Officer. The Investigation Officer as the first judge of the case is expected to conduct investigation in a fair transparent and dispassionate manner and place results of such investigation before the competent court either in shape of a final report u/s 169 Cr. P.C or a charge sheet under section 170 Cr.P.C. It is for the court before which the outcome of investigation is placed to further deal with the matter in accordance with law. The matter would be different, had the investigation been concluded, charge sheet laid and the charges formally framed against the petitioners. In such case the power under section 561-A of the Code of Criminal Procedure be much wider. This court in exercise of inherent powers cannot highjack investigation and thereafter proceedings emanating from investigation from the Investigating Officer or Court, and take upon itself the role assigned under law to a particular agency or forum. 16. There is yet another reason to desist from embarking on an exercise to analyse the material in question to find out its meaning and import. It is important to note that the petitioners own the seized material in question. They however, insist that its publication does not amount to unlawful activity, a stand vehemently refuted by the respondents. In the circumstance it would not be proper for this court to deal with the merits of the case and try to find out whether publication and distribution of seized material having regard to its contents amount to "unlawful activity" and therefore would be punishable under section 13(1)(b) of the Act,. In the circumstance it would not be proper for this court to deal with the merits of the case and try to find out whether publication and distribution of seized material having regard to its contents amount to "unlawful activity" and therefore would be punishable under section 13(1)(b) of the Act,. In case, such an exercise is made and a finding returned against the stand taken by the petitioners they would be seriously prejudiced as they having admitted publication and distribution of seized material, nothing more would be required to be proved against them. In the circumstances I am of the opinion that the court must desist from examining merits of the case and instead of scuttling investigation at its outset allow the Investigation Officer to proceed in the matter in a fair transparent and dispassionate manner and allow the law to take its own course. 17. The petitioners would be free to approach the local Magistrate with an application u/s 561-A of the Code, for release of the seized material and in the event such an application is filed it shall be dealt with and disposed of on its own merits unmindful of observations made herein. 18. Disposed of.