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2023 DIGILAW 150 (JK)

Rajinder Singh v. State of J&K

2023-04-20

RAJNESH OSWAL

body2023
JUDGMENT : 1. The petitioner through the instant petition has sought the quashing of the FIR No. 0083 dated 21.05.2018 under sections 501 and 509 RPC and Sections 66 and 67 of IT Act 2000 registered with Police Station, Hiranagar against him and unknown person on the ground that no FIR for commission of offence under section 501 RPC can be registered against the petitioner as the cognizance of offence under section 501 RPC can only be taken by the Court upon the complaint made by a person aggrieved by such an offence. It is also stated that no offence under section 509 RPC is made out against the petitioner. Besides, it has also been stated that section 66 of IT Act pertains to computer related offences and no computer related offence has been committed by the petitioner as per the FIR impugned. It is further stated that even no offence under section 67 of IT Act is made out against the petitioner. 2. Reply stands filed by the respondents, wherein it is stated that on 21.03.2018 while addressing large gathering of people at a public place i.e. at Mela More Hiranagar, the petitioner used extremely profane, vulgar, filthy and abusive language against the then Chief Minister. He brazenly and shamelessly indulged in rhythmic singing of profane words against xxxxxx (Name not disclosed) like kutti hai hai, bari payari kutti hai hai, kan fatti kuti, bari bahan chod kutti hai etc. and instigated the general public. These utterances made in public are extremely provocative and reprehensibly anti-social and against the civilized norms of a society. This action of the petitioner was also got video graphed by his cohorts to put it on social media and said video clippings got transmitted through out the erstwhile State of J&K. As the petitioner and his cohorts prepared the video and made it viral on the social media, therefore, he has committed offences under sections 501 and 509 RPC and Sections 66 & 67 of IT Act 2000. Accordingly, the FIR impugned was registered against him. 3. Mr. Jagpaul Singh, learned counsel for the petitioner vehemently argued that no FIR under section 501 RPC could have been registered against the petitioner as cognizance of the said offence can be taken only by the court after the complaint is filed by the aggrieved person. Accordingly, the FIR impugned was registered against him. 3. Mr. Jagpaul Singh, learned counsel for the petitioner vehemently argued that no FIR under section 501 RPC could have been registered against the petitioner as cognizance of the said offence can be taken only by the court after the complaint is filed by the aggrieved person. He further argued that even no offence under section 509 is made out against the petitioner. 4. On the other hand, Mr. Dewakar Sharma, learned Dy. AG argued that in respect of voice samples of the petitioner, FSL report has been obtained from the Central Forensic Laboratory and as per the report, the questioned sample matched with the voice of the petitioner and the image of the person in the video was also of the petitioner. 5. Heard and perused the record including the Case Diary. 6. A perusal of the FIR reveals that on 21.05.2018, the petitioner was addressing a rally at Mela More, Hiranagar on loudspeaker. He used filthy language against the Ex-Chief Minister of the State and used derogatory words in a shameful manner. One unknown person made the video and as such, the FIR in reference was registered against the petitioner and one unknown person. It is beyond doubt that the language used by the petitioner is vulgar and abusive and these hate speeches have no place in a civilized society, particularly against a woman. 7. Now, it is to be seen as to whether the FIR in question can be quashed on the ground that as per section 198 Cr.P.C., the cognizance of an offence under section 501 RPC cannot be taken otherwise than on the complaint made by the person so aggrieved and further as to whether the utterances of the petitioner do not fall within the purview of section 509 RPC. The offence under section 501 RPC is non-cognisable and registration of FIR is not permissible. The offences under section 509 RPC and 66, 67 of IT Act of 2000 are cognisable. The offence under section 501 RPC is non-cognisable and registration of FIR is not permissible. The offences under section 509 RPC and 66, 67 of IT Act of 2000 are cognisable. The Hon'ble the Supreme Court in Pravin Chandra Mody v. State of Andhra Pradesh, AIR 1965 SC 1185 , while referring to the case of Ram Krishna Dalmia (AIR 1958 P H 172 in paragraph 6 (Hidayatullah, J) has held : "......Where the information discloses a cognizable as well as a non-cognizable offence the police officer is not debarred from investigating any non-cognizable offence which may arise out of the same facts. He can include that non-cognizable offence in the charge-sheet which he presents for a cognizable offence. We entirely agree. Both the offences if cognizable could be investigated together under Chapter XIV of the Code and also if one of them was a non-cognizable offence. 8. Thus, it is evident that if the cognizable and non-cognizable offences arise out of the same facts, then the Police Officer is not debarred from investigating the non-cognisable offence. This issue may not arise now after the enactment of Reorganisation Act of 2019, providing for the applicability of Criminal Procedure Code 1973 in the Union Territory of Jammu and Kashmir, as is applicable in rest of India because Criminal Procedure Code as was applicable in the erstwhile State of J&K had no corresponding provision as 155(4) of the Central Criminal Procedure Code 1973. But it is also true that in terms of section 198 of the Criminal Procedure Code, the cognizance of any offence under Chapter XXI of the Criminal Procedure Code is permissible only upon the complaint made by the person aggrieved or by some other person with the leave of court, when the person aggrieved is unable to do so in view of the contingencies provided in the section (supra). Admittedly in the instant case, the person aggrieved is the Ex-Chief Minister and is not suffering from any disability as provided under section 198 of Criminal Procedure Code. Section 2(d) Cr.P.C. provides that the complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some persons, whether known or unknown has committed an offence but does not include police report. Section 2(d) Cr.P.C. provides that the complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some persons, whether known or unknown has committed an offence but does not include police report. Thus, the police report does not amount to complaint except where the police officer after investigation makes a report about the commission of non-cognizable offence. So far as instant case is concerned, it is not the case of the petitioner that the Police has filed a complaint before the Magistrate as the matter is still under investigation. 9. The Hon'ble Apex Court in State of Punjab v. Raj Singh & Anr., (1998) 2 SCC 391 has considered an issue in respect of the registration of FIR for commission of offences under section 467 and 468 I.P.C. in the course of proceedings of a civil suit in view of the bar contained in section 195(1)(b)(ii) Cr.P.C. It has held as under : "We are unable to sustain the impugned order of the High Court quashing the F.I.R. lodged against the respondents alleging commission of offences under Sections 467 and 468 I.P.C. by them in course of the proceeding of a civil suit, on the ground that Section 195 (1) (b) (ii) Cr.P.C. prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195 Cr.P.C. it is manifest that it comes into operation at the stage when the Court intends to take cognizance of an offence under Section 190(1) Cr. P.C.; and it has nothing to do with the statutory power of the police to investigate into an F.I.R. which discloses a cognisable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceeding in Court. P.C.; and it has nothing to do with the statutory power of the police to investigate into an F.I.R. which discloses a cognisable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceeding in Court. In other words, the statutory power of the Police to investigate under the Code is not in any way controlled or circumscribed by Section 195 Cr.P.C. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the Court would not be competent to take cognizance thereof in view of the embargo of Section 19591) (b) Cr.P.C., but nothing therein deters the Court from filing a complaint for the offence on the basis of the F.I.R. (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down tin section 340 Cr. P.C. The judgment of this Court in Gopal Krishna Menon & Anr. v. D. Raja Reddy [ AIR 1983 SC 1053 ], on which the High Court relied, has no manner of application to the facts of the instant case for there cognizance was taken on a private complaint even though the offence of forgery was committed in respect of a money receipt produced in the Civil Court and hence it was held that the Court could not take cognizance on such a complaint in view of Section 195 Cr.P.C." 10. Further in M. Narayandas v. State of Karnataka & Ors., (2003) 11 SCC 251 , it has been held as under : "Not only are we bound by this judgment but we are also in complete agreement with the same. Sections 195 and 340 does not control or circumscribe the power of the police to investigate under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However, that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided that procedure laid down in Section 340 Criminal Procedure Code is followed. Thus no right of the Respondents, much less the right to file an appeal under Section 341, is affected." 11. However, that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided that procedure laid down in Section 340 Criminal Procedure Code is followed. Thus no right of the Respondents, much less the right to file an appeal under Section 341, is affected." 11. In light of both these judgments, it can be safely held that the bar as prescribed by section 198 Criminal Procedure Code would come in to play at the time of taking cognisance of offence and not before that. As the Police is investigating the allegations and stage of cognizance has not reached as yet, therefore the contention of the petitioner is rejected. It is clarified that FIR cannot be registered for commission of offence under section 501 RPC only and the Police can register an FIR and investigate the said offence only when there are allegations with regard to commission of cognizable offence as well. 12. The other contention of the petitioner is that no offence under section 509 RPC is made out as the language allegedly used by the petitioner is only abusive but not intended to outrage the modesty of the Woman. The section 509 RPC is reproduced as under : 509. Word, gesture or act intended to insult the modesty of a woman.- Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, 1 [or transmits through SMS or e-mail any absence song, ballad words or any abusive language] intending that such word or sound shall be heard, or that such gesture or object shall be seen by such woman, or intrudes upon the privacy of such woman, 2 [shall be punished with simple imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine]. The words uttered by the petitioner are not only abusive, but have the potentiality of outraging the modesty of the woman. 13. More so, this contention of the petitioner cannot be appreciated at this stage particularly when the investigation is continuing and this court while exercising powers under section 561-A (Now 482) of Cr.P.C cannot conduct mini trial in respect of the allegations leveled against the petitioner while examining the validity of registration of FIR. 13. More so, this contention of the petitioner cannot be appreciated at this stage particularly when the investigation is continuing and this court while exercising powers under section 561-A (Now 482) of Cr.P.C cannot conduct mini trial in respect of the allegations leveled against the petitioner while examining the validity of registration of FIR. In Central Bureau of Investigation v. Aryan Singh, 2023 LiveLaw (SC) 292, it has been held as under : "From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of Criminal discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr.P.C., the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution/investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr.P.C., the Court has a very limited jurisdiction and is required to consider "whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not". 14. In view of what has been discussed above, the petition is found to be without merit and is dismissed. The Investigating Officer shall conclude the investigation as expeditiously as possible, preferably with in the period of three months from today. 15. Case Diary is returned in the open Court to the learned Dy. AG.