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2018 DIGILAW 138 (JK)

Reyaz Ahmad Bhat v. State of J&K

2018-03-07

ALI MOHAMMAD MAGREY

body2018
JUDGMENT : Ali Mohammad Magrey, J. Through the medium of instant petition, filed under Section 561-A of the Code of Criminal Procedure (Cr. P.C.), the petitioner is seeking quashment of FIR bearing No. 50/2016, dated 30th of September, 2016, registered in Police Station, Kheer Bhawani, under Sections 153 and 505 of the Ranbir Penal Code (RPC), inter alia, on the grounds detailed out herein below: I. That the petitioner, a qualified person, is, by profession, working as a Journalist/Reporter with Kashmir Press Services, Srinagar, publishing the Daily 'Tamil-e-Irshad' and the Daily 'Kashmir Age' newspapers. The petitioner, while discharging his duties in the District Ganderbal, was harassed and humiliated by the Respondent No. 3/Station House Officer, Kheer Bhawani, without any cause, reason or justification; II. That the respondent No. 3 telephonically abused, intimidated and used filthy/unparliamentary language against the petitioner and, moreso, threatened the petitioner of dire consequences of his life and liberty; III. That the conduct of the respondent No. 3, by harassing, abusing and threatening the petitioner from discharging his professional duties, which is a guaranteed 'Fundamental Right' enshrined under Article 19 of the Constitution of India, was widely criticized and condemned by the Press fraternity of the Jammu and Kashmir State, including the Jammu and Kashmir Bar Association; IV. That the respondent No. 3, in order to settle the personal scores, vengeance and enmity against the petitioner, gave motion to an illegal FIR by misuse of his power and registered the impugned FIR No. 50/2016 against the petitioner under Sections 153 and 505 of the Ranbir Penal Code (RPC); V. That the impugned FIR has been registered out of malafide approach adopted by the respondent No. 3, on the basis of a public compliant received by the office of the Kashmir Press Services, Srinagar, having its head office at Press Colony, Srinagar, for publication from the inhabitants of Tulmulla, Kheer Bhawani, which was duly published on 27th of September, 2016, in the Daily'Tameel-i-Irshad' newspaper. In the said publication, the inhabitants of the village Tulmulla, Kheer Bhawani, requested and complained to the head of the Police Institution, i.e. the Director General of Police, J&K about the illegal conduct of one police personnel, namely, Mushtaq Ahmad, working as Munshi (Clerk), in the office of the Respondent No. 3, who, of and on, harassed the local people, without any reason and justification by taking undue advantage of the unrest, prevalent at that point of time; VI. That the impugned FIR is just an outcome of vengeance, misuse of powers and to restrain/impose ban on the 'Freedom of Press', guaranteed to the petitioner under the Constitution of India, and VII. That the impugned FIR is against the mandate and spirit of the rule of law laid by the Hon'ble Supreme Court in case titled 'Indian Express Newspaper vs. Union of India', reported in 1985 SCC 64', wherein the Apex Court has held that there cannot be any interference with the freedom in the name of the public interest and the purpose of the Press is to advance the public interest by publishing facts/opinions, without which a democratic electorate cannot make his judgments. 2. On notice, the respondents appeared through B. A. Dar, the learned Senior Additional Advocate General, who, has invited the attention of this Court to the objections filed by them in opposition to the maintainability of the instant petition. Paragraph Nos. 2 and 7, being relevant, are taken note of: 2. That the contents made in para 02 of instant petition are totally denied to the extent that the petitioner has published fake news in Daily Newspaper “Tameel-e-Irshad” twice i.e. on 10-08-2016 and on 30-09-2016 regarding Protest Rally organized in Tulla-Mulla on 09-08-2016 and on 29-09-2016 respectively. Another fake news was also published regarding “Munshi” of P/s Kheer Bhawani. The petitioner on 19-08-2016 published an apology regarding the fake news were published by the petitioner. Thus, the petitioner wantonly gave provocation with an intention to cause riots and induced public to disrupt public order in the District. However, tendering of apology regarding the fake news clearly indicates that there were no reasonable grounds which bake that such statement was factual and the petitioner has not published the said news in good faith. Thus, the petitioner wantonly gave provocation with an intention to cause riots and induced public to disrupt public order in the District. However, tendering of apology regarding the fake news clearly indicates that there were no reasonable grounds which bake that such statement was factual and the petitioner has not published the said news in good faith. Therefore, the petitioner has committed the offence for which the FIR No. 50/2016 under section 453, 505 Ranbir Penal code dated: 30-09-2016 is lodged against the petitioner in the concerned police station. 7. That the contentions raised by the petitioner in para 07 and 08 are totally denied and also replied in para supra. However it is submitted that there is not an iota of vengeance or misuse of powers regarding lodging of FIR and the FIR No. 50/2016 is neither vague, mollified nor concocted and so far as right to freedom of press is concerned, the petitioner in the instant case has published fake news which fact is admitted by the petitioner and therefore the petitioner has committed offence which has led to the registration of the instant FIR against the petitioner and there is no question of imposing ban on freedom of press.” 3. Heard the learned counsel for the parties, perused the record and considered the matter. 4. True that this Court, in exercise of the powers conferred under Section 561-A of the Criminal Procedure Code (Cr. P.C.), can interfere in the rarest of rare cases upon noticing the abuse of the process of law or the Courts below having passed the orders beyond their authority, but, at the same time, this Court cannot lose sight of the injustice being meted out to some professional, Journalist in the present case, merely on the ground that he has reported the grievance of some villagers in the newspaper he reports for. 5. Perusal of the report which has been supplied as the basis for the registration of the FIR in question, reveals that the inhabitants of the village Tulmulla, Ganderbal, had submitted a written complaint about the misuse of the powers of one police personnel, working in Police Station Kheer Bhawani, to be highlighted in the newspaper for taking appropriate action against the said police official. The petitioner/Reporter has only reported the grievance/complaint of the villagers which was published in the newspaper. The petitioner/Reporter has only reported the grievance/complaint of the villagers which was published in the newspaper. Mere publication of the grievance of the inhabitants with reference to misuse of the powers of some police personnel cannot form the basis for the registration of a case against the petitioner under Sections 153, 505 of the Ranbir Penal Code (RPC). 6. Similar type of grievance/complaint against a public official, which was published through pamphlet and the official proceeded under Section 505, became the subject matter of a challenge before the High Court of Orissa in case titled 'Kali Charan Mohapatra vs. Srinivas Sahu, reported in 'AIR 1960 ORISSA 65 (V 47 C 18)', wherein and whereunder, the proceedings were quashed by declaring that the grievance against the local authorities expressed through publication of pamphlets cannot form the basis for registration of a case under Section 505 of the Ranbir Penal Code (RPC), as it hits the 'Freedom of Expression' guaranteed under Article 19 (1) of the Constitution of India. 7. Learned counsel for the petitioner has also referred to and relied upon the judgment of the Hon'ble Supreme Court titled 'R. Rajagopal alias R.R. Gopal and Anr. vs. State of T. N. and Ors.', reported in '(1994) Supreme Court Cases 632', wherein the Hon'ble Apex Court has observed that the publication relating to acts or conduct of public officials in the discharge of their official duty, unless shown to have been made in reckless disregard for truth, would not entitle the officials to invoke right of privacy and claim damages, nor can the Government or its officials impose any prior restraint on publication of the matter in question. 8. The argument advanced by Mr. Dar, the learned Senior Additional Advocate General, that the Court, at the threshold of the investigation(s), is not supposed to interfere, though has substance, but can only be allowed in the cases where there is, prima facie, sufficient material available with regard to the involvement of the accused. In the present case, however, the perusal of the texture of the impugned FIR based on the grievance/complaint of the inhabitants of village Tullamulla, does not make out a case against the petitioner/Reporter, who has reported the same bonafidely without any ill-will or intention of harming the public order. Therefore, same cannot be allowed to form the basis for registration of the case against the petitioner/Reporter. 9. Therefore, same cannot be allowed to form the basis for registration of the case against the petitioner/Reporter. 9. In the above background, this petition succeeds and, as such, is allowed, as a consequence whereof, the impugned FIR bearing No. 50/2016, dated 30th of September, 2016, registered in Police Station, Kheerbawani, for the commission of offences punishable under Sections 153 and 505 of the Ranbir Penal Code (RPC), is quashed. 10. 561-A petition, alongwith connected MP(s), disposed of as above.