In a landmark judgment, the Jammu and Kashmir High Court in a petition filed by the Senior Journalist at Early Times, Asif Iqbal Naik, S/o Late Ghulam Rasool Naik, R/o Shaheedi Road, Kishtwar, through Advocate Faheem Shokat Butt Under Section 561-A Cr.P.C for the quashment of FIR bearing No. 117/2018 dated 12.05.2018 registered by Police Station Kishtwar U/S 500/504/505 RPC against the journalist has on Monday order the queshment of the said FIR I.e FIR NO.117/2018 and upheld the freedom of press while highlighting the issue of public importance and the atrocities committed on the poor labourer- the charges which was leveled by his family members.
The court in his judgment observes that the mode and manner in which the impugned FIR has been lodged clearly reflects the mala fide on the part of the respondents, as the respondents could have given their version in a similar mode, but they chose a unique method of silencing the petitioner. It is undoubtedly an attack on freedom of the press. Needless to say, the 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 the press by registering an 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.
As per the chronology of events, the petition was filled by Asif Iqbal Naik, S/o Late Ghulam Rasool Naik, R/o Shaheedi Road, Kishtwar, Tehsil and District Kishtwar Versus the State of Jammu & Kashmir, through S.H.O Police Station, Kishtwar, Angrez Singh Rana, the then Deputy Commissioner, Kishtwar, Abrar Choudhary, the then Senior Superintendent of Police, Kishtwar, Nihar Ranjan, the then Deputy Superintendent of Police, Headquarter, Kishtwar & Sameer Jeelani, the then Station House Officer, Kishtwar (All Respondents) wherein the petitioner through Advocate Faheem Shokat Butt most respectfully submits that the petitioner is a reputed journalist associated with Early Times News Paper Jammu and Kashmir. He has been associated with the said daily newspaper as a correspondent/local reporter from the very inception of the said newspaper. Besides this, the petitioner is also associated with the National Electronic Media, especially the Times Now English News Channel, and has broken down various stories of national importance. By dent of his hard work, the petitioner earned a lot of respect amongst the masses and carved out a special and unique place amongst the journalist fraternity.
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 respondents 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 real brother from his house on the basis of some false and frivolous information and since then he has been kept under illegal confinement as well as use of force by using third degree torture resulting in serious injuries to his brother. He alleged that on 18.04.2018 when he visited the police station to find out where his brother was, 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 by the police of Police Station Kishtwar by using third degree torture leaving his brother almost semi dead and it was confirmed by the doctors that his brother has received multiple serious injuries and, as such, has been referred to Govt. Medical College Jammu in a critical condition for his treatment. Thus, direction was sought to register an FIR against the respondent No. 3 to 5 under relevant sections of the Ranbir Penal Code and to push the accused accordingly under the law. A certified copy of the complaint dated 19.04.2018 was also enclosed. However, certified copies of the preliminary statement of the complainant and the witnesses have not been provided to the petitioner despite applying.
The said Abdul Gani, who is the brother of Akther Hussain, disclosed the said facts to the petitioner and his statement was videographed and shown by various news channels and is also on You Tube. The petitioner also talked to other relatives of Akther Hussain who also narrated the same story. Based upon the statement of Abdul Gani, the petitioner broke down the story in the Early Times newspaper in its edition of April 19, 2018 and in the said report the petitioner gave reference to the you tube and apprised the subscribers to watch the video on the Early Time Jammu You Tube Channel. The MLA Inderwal, namely G. M. Saroori, in whose constituency the said Akther Hussain is residing, has also demanded the constitution of a Special Investigating Team to probe allegations of police torture of Keshwan youth.
The respondents got irriked and furious about the said reporting by petitioner as such the respondent No. 3 approached respondent No. 2 for seeking proper permission to 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 the SSP Kishtwar to lodge an FIR against the petitioner, vide Order No. 519-20/DM/K dated 11.05.2018, which led to the registration of the 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.
The petitioner was doing his professional duties and he only reported to the extent which had been witnessed by him during the statements given by the kins of Akther Hussain, which is corroborated by the criminal complaint lodged against the respondent No. 3 to 5 by the brother of Akther Hussain, namely Abdul Gani, whose statement has also been videographed.
The FIR is nothing but a way to harass the petitioner and to stop him from publishing any news against the police establishment. It is stated herein that the respondents, particularly respondents No. 3 and 5, have number of times threatens the petitioner and warned him not to publish any news about the police. The electronic and print media are deemed to be the fourth pillar of democracy and the voice of the people, and any such attempt to gag the press or electronic media would amount to an infringement of the right of free speech and expression as guaranteed by Article 19 of the Constitution of India.
The FIR impugned is nothing but an abuse of the process of law and the investigation into the FIR does nothing but affect the life and liberty of the petitioner and also has a great impact on the social status of the petitioner. The FIR is based upon malafide considerations and to achieve the collateral purpose of reframing the petitioner to report anything against the police.
The allegations made in the FIR 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 proceedings against the petitioner. There was no offence caused by the road block or any vandalism and destruction of public property took place after reporting. Thus, the FIR is motivated and no offence is made out against the petitioner. In the FIR it is stated that the detainee has confessed to the offence of attempt to suicide for which he has been fined Rs. 1000/-. First of all, the petitioner had no access to the detainee to know about his serious condition at that relevant period of time, and otherwise, an attempt to commit suicide by a detainee during custody is a matter of serious and grave concern which needs to be probed properly as to what act constrained the person in custody to attempt to take his life. There is every possibility that the police might have gotten his confession under duress in order to save their skin.
The electronic and print media are deemed to be the fourth pillar of democracy and the voice of the people, and any such attempt to gag the press or electronic media would amount to an infringement of the right of free speech and expression as guaranteed by Article 19 of the Constitution of India.
The FIR impugned bearing No. 117/2018 dated 12.05.2018, U/S 500, 504 and 505 RPC, came to be registered against the petitioner wherein it is alleged that the said publication in the Early Times News Paper and on social media about the brutal torture of a father of five, which led to his critical condition and he was shifted to GMC Jammu, amounts to instigate the peace-loving citizens of Kishtwar town and its vicinity to assume the forum of unlawful assembly and cause the offences like road blockage, vandalism and destruction of public property etc. At the first instance, no such vandalism and destruction of public property took place and the petitioner, while performing his professional duties, reported the matter regarding which he was informed by the kin of detainee Akther Hussain. The said statements have also been videographed and are available on you tube. The concerned MLA has also demanded the constitution of a Special Investigation Team to probe the matter regarding the torture of a person in his constituency.
Mr. F. S. Butt, learned counsel for the petitioner, reiterated the grounds taken in the petition. He further submitted that the present FIR is nothing but an abuse of the process of law. As such, it is required to be quashed.
On the other hand, Mr. Sunil Malhotra, learned GA, vehemently argued that false news was published by the petitioner, so an FIR has been rightly lodged against the petitioner.
Justice Rajnesh Oswal after heard learned counsel for the parties and perusing the record, he observed that it is not in dispute that the petitioner is a journalist by profession and his job is to gather information and publish it 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 the cousins of Akhter Hussain, namely, Irshad Ahmed and brother AbdulGani, have been reflected in the news item that 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 mens rea is a necessary postulate for the offence under Section 505 IPC. Thus, mens rea 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 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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