J&K High Court quashes FIR against ET Journalist - Early Times Newspaper Jammu Kashmir

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J&K High Court quashes FIR against ET Journalist

Terms registration of FIR against journalist as abuse of power by Police

8/25/2021 12:06:59 AM

Early Times Report

Jammu, Aug 24: The Jammu and Kashmir High Court has quashed a FIR filed against Early Times reporter and senior journalist Asif Iqbal Naik of Kishtwar district.
Naik had filed a petition in a court through advocate Faheem Shokat Butt to seek quashment of FIR No. 117/2018 dated 12.05.2018 registered by Police Station Kishtwar U/S 500/504/505 RPC against him.
The court upheld his plea and quashed the FIR terming it as “abuse of power by Police.”
The court in its judgment stated; “The mode and manner in which the impugned FIR has been lodged clearly reflects the malafide on the part of respondents as they could have given their version by similar mode but they chose unique method of silencing the petitioner and it is undoubtedly an attack on the freedom of press. Needless to say that press is often referred to as the fourth pillar of democracy and freedom of the press is vital for the functioning of any democratic country like India. No fetters can be placed on the freedom of press by registering the FIR against a reporter, who was performing his professional duty by publishing a news item on the basis of information obtained by him from an identifiable source.” Naik had filed a petition against then Deputy Commissioner, Kishtwar, Angrez Singh Rana, Senior Superintendent of Police, Kishtwar, Abrar Choudhary, Deputy Superintendent of Police, Nihar Ranjan, and Station House Officer, Kishtwar Sameer Jeelani. The petitioner had submitted that he is a reputed journalist associated with Early Times News Paper from the very inception of the said newspaper.
Besides this the petitioner is also associated with national electronic media specially Times Now English News Channel and has broke down various stories of national importance. By dint of his hard work, the petitioner earned lot of respect amongst the masses and carved out a special and unique place amongst the journalist fraternity.
The petitioner stated that one Abdul Gani S/o Ali Mohammad Hajam R/o Panthna Keshwan Tehsil Kishtwar filed a criminal complaint U/S 330, 331, 342, 348 RPC against the respondent No. 3 to 5 who are holding higher positions in the District Police Kishtwar. In this complaint the complainant Abdul Gani alleged that on 18.03.2018 Police Station Kishtwar picked up his brother from his house on the basis of some false and frivolous information and since then he has been kept under illegal confinement and is facing third degree torture resulting in serious injuries to him. The complainant alleged that on 18.04.2018 when he visited the police station to ascertain the whereabouts of his brother he was shocked to see his brother in a serious condition who was being taken to District Hospital Kishtwar for treatment after being mercilessly beaten at Police Station Kishtwar. Thus direction was sought to register FIR against the respondent No. 3 to 5 under relevant sections of Ranbir Penal Code and to punish the accused accordingly under law. A certified copy of complaint dated 19.04.2018 was also enclosed, however certified copies of the preliminary statement of complainant and the witnesses were not been provided to petitioner despite applying.
Abdul Gani disclosed the said facts to the petitioner and his statement was videographed and shown by various news channel and is also on You Tube. The petitioner also talked to other kin of Akther Hussain who also narrated the same story. Based upon the statement of Abdul Gani the petitioner broke the story in Early Times news paper in its edition of April 19, 2018 and in the said report the petitioner has given reference to the you tube and apprised the subscribers to watch video on Early Time Jammu You Tube Channel. The MLA Inderwal namely G. M. Saroori in whose constituency the said Akther Hussain is residing had also demanded constitution of Special Investigating Team to probe allegations of Police Torture on Keshwan youth.
That the respondents got irked and furious about the said reporting by petitioner as such the respondent No. 3 approached respondent No. 2 for seeking proper permission to seek registration of proper complaint U/S 505 RPC against the petitioner and the Deputy Commissioner concerned without ordering any preliminary enquiry as warranted U/S 196-B of J&K Criminal Procedure Code Svt 1989 permitted and authorized him SSP Kishtwar to lodge an FIR against the petitioner vide Order No. 519-20/DM/K dated 11.05.2018 which led to registration of FIR impugned bearing No. 117/2018 dated 12.05.2018 U/S 500, 504 and 505 RPC wherein it is alleged that the petitioner tried to instigate the people of Kishtwar against the Kishtwar Police by the said publication and story circulated on social networking sites and thus created rage/confusion among the public of Kishtwar through the publication and tried to instigate the people to the extent to committee offence of any type including road block and vandalism breakage of public property etc. in Kishtwar town.
Justice Rajnesh Oswal after hearing the learned counsel for the parties stated that this is not in dispute that the petitioner is a journalist by profession and his job is to gather information and publish the same in the newspaper or in any other media. The information published in the form of news may pertain to issues of national/ international importance or local in nature. A mere perusal of the news item reflects that it has been published pursuant to the information disclosed by the kin of Akhter Hussain. Even the names of cousin of Akhter Hussain, namely, Irshad Ahmed and brother Abdul Gani have been reflected in the news item who narrated the said incident.
This Court is of the considered opinion that the publication of the news item on the basis of statement made by the cousin and brother of Akhter Hussain, does not amount to offence under section 499 RPC as the petitioner has been performing his professional duty of reporting the matter. More so, when the complaint was too filed against some of the respondents by the brother of the said Akhter Hussain on 19.04.2018, narrating the similar story. If the respondents were aggrieved of the same and they had some other version, they too could have resorted to the same mode, by getting published their part of version.
So far as allegations with regard to commission of offence under section 504 RPC is concerned, there is no allegation that the petitioner has insulted any one thereby provoking him to break the public peace or commit any other offence. As such, uncontroverted allegations made in FIR do not even constitute offence under section 504 RPC.
Now, it is to be seen as to whether as per the allegations leveled in FIR, offence under section 505 RPC is made out or not. In the FIR it has been mentioned that the petitioner by publishing this news item tried to instigate the peaceful public of Kishtwar to commit acts of vandalism, road blockages and acts of destruction of public property. It is reiterated that the petitioner has simply published what was told to him by the kin of Akhter Hussain. As per section 505 RPC, the making, publication or circulating of any statement, report or rumour must be with intention to create alarm in the public or any section of public so as to induce them to commit offence against state or public tranquility.
While quoting the judgment in Kedar Nath Singh v. State of Bihar, reported in AIR 1962 SC 955 & the Hon’ble Supreme Court judgment in Bilal Ahmad Kaloo vs. State of Andhra Pradesh, 1997 (3) Crimes 130 (SC), has held that Mensrea is a necessary postulate for the offence under Section 505 IPC. Thus, Mensrea is an essential ingredient of offence under section 505 RPC and as section 505 RPC provides a reasonable restriction on the fundamental right to freedom of speech and expression, therefore, the same is required to be strictly construed. The intention to generate the consequences as contained in section 505 RPC must be forthcoming from the plain reading of the statement/report or rumour and should not be left at the discretion of a particular person. Prima facie there is nothing in the FIR that the petitioner desired to generate the consequences as claimed by the respondents and rather he has performed his professional duty. 15. Further it requires to be noted that the news item was published on 19.04.2018 where as FIR was registered on 12.05.2018 and till then no such offences as anticipated by the respondents were committed by the public.
It would be profitable to take note of the observations made by Apex Court in Balwant Singh v. State of Punjab, reported in (1995) 3 SCC 214: 9. Insofar as the offence under Section 153-A IPC is concerned, it provides for punishment for promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever or brings about disharmony or feeling of hatred or ill-will between different religious, racial, linguistic or regional groups or castes or communities. In our opinion only where the written or spoken words have the tendency or intention of creating public disorder or disturbance of law and order or affect public tranquillity, that the law needs to step in to prevent such an activity. The facts and circumstances of this case unmistakably show that there was no disturbance or semblance of disturbance of law and order or of public order or peace and tranquility in the area from where the appellants were apprehended while raising slogans on account of the activities of the appellants. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153-A IPC and the prosecution has to prove the existence of mens rea in order to succeed. In this case, the prosecution has not been able to establish any mens rea on the part of the appellants, as envisaged by the provisions of Section 153-A IPC, by their raising casually the three slogans a couple of times. The offence under Section 153-A IPC is, therefore, not made out.
Further, exception to section 505 RPC clearly provides that it does not amount to an offence within the meaning of this section when a person making, publishing or circulating such report, rumour or report has reasonable grounds for believing that such statement, rumor or report is true and make publishes or circulates in good faith and without any such intent. Even if, for the sake of arguments the offence is made out against the petitioner, still his case would fall within the exception as well, as he published what was narrated by kin of Akhter Hussain. Reliance is placed upon the decision of Apex Court in Viond Dua vs Union of India & Ors, 2021 SCC Online SC 414, where in the Apex Court while relying upon number of its earlier decision quashed the criminal proceedings arising out of FIR on the ground that the statements of the petitioner were covered by Exception-2 and Exception-3 of section 499.
The mode and manner in which the impugned FIR has been lodged clearly reflects the mala fide on the part of respondents as the respondents could have given their version by similar mode but they chose unique method of silencing the petitioner and it is undoubtedly an attack on the freedom of press. Needless to say that press is often referred to as the fourth pillar of democracy and freedom of the press is vital for the functioning of any democratic country like India. No fetters can be placed on the freedom of press by registering the FIR against a reporter, who was performing his professional duty by publishing a news item on the basis of information obtained by him from an identifiable source.
The case of the petitioner squarely falls under the category of cases figuring at Sr. Nos. 1 and 7 as mentioned hereinabove in State of Haryana v. Bhajan Lal and as such, the FIR impugned is nothing but an abuse of process of law. Mere fact that FIR was lodged only against the journalist and not against the person, who has disclosed the said incident to the journalist prima facie, establishes malice on the part of the respondents.
In view of what has been said above, the FIR bearing No. 117/2018 dated 12.05.2018 registered by Police Station, Kishtwar for commission of offences under sections 500, 504 & 505 RPC, is quashed.

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