"He Demeaned Indian Forces But Sedition Case Against Him Is Abuse Of Law": J&K HC Quashes Case Against Councillor For Remarks During Indo-China Face-Off

While exercising its power under Section 482 CrPC the Bench of Justice Sanjeev Kumar quashed the Case and opined,

"The conversation contained in the audio clip, if examined in its entirety, does not make out a case of sedition or the offences under Section 153A, 153B, 505 read with Section 120-B IPC and would be saved by the fundamental guarantee to free speech and expression assured to the citizens of this Country by Article 19(1)(a) of the Constitution of India."

Background of the Case

As per the case of the prosecution, on 18.06.2020, Police received a piece of information from reliable sources that an audio clip containing objectionable conversation pertaining to the armed forces of the Country having reference to clashes between the Indian Army and armed forces of China that took place in the Galwan Valley, had gone viral on social media.

On the basis of this information, the subject FIR was registered by the police and investigation of the case was set into motion.

During the investigation of the case, an audio clip of 6.3 minutes duration was seized and it was found to contain a conversation between the petitioner/accused, Zakir Hussain, and co-accused Nissar Ahmad Khan.

Allegedly, the conversation contained extremely objectionable expressions and sentences allegedly used by the petitioner against the Country, its leadership as well as against the Indian Armed Forces.

Accordingly, the petitioner was arrested on 19^th June 2020.

The FIR was registered for offences under Section 124A (Sedition), 153A (Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony), 153B ( Imputations, assertions prejudicial to national-integration), 505(2) (Statements creating or promoting enmity, hatred or ill will between classes) and 188 (Disobedience to order duly promulgated by public servant) of IPC registered with Police Station, Kargil.

Court's Analysis

At the outset, the Court observed that in the said conversation, the petitioner had demeaned the Indian Forces and eulogized the armed forces of China in the context of recent Galwan valley conflict between the two nations.

However, the Court further said,

"It is equally true that the conversation contained in the audio clip, which was circulated on the social media by the co-accused Nissar Ahmed Khan, does bring into contempt the Government established by law in India, but unless the conversation has the tendency or intention of creating public disorder or disturbance of public peace by incitement to an offence, the same would not be sedition to attract the applicability of Section 124A or for that matter Section 153A or 153B IPC."

The Court was of the view that there was even no material to demonstrate any criminal conspiracy between the petitioner and Nissar Ahmed Khan to commit sedition or other offences or prior concert or meeting of minds to commit the offences with which both have been charged by the police.

[Note: For an act to be called seditious in terms of Section 124A of the Indian Penal Code, it should have the following contents: -

• Any word, which can be either written or spoken or signs which include placard/poster (visible representation).
• Must bring or attempt to bring hatred/contempt/ disaffection against the Indian State.
• Must result in imminent violence or public disorder.]

In this backdrop, the Court concluded that the conversation contained in the audio clip, though unsavoury and detestable, would not amount either to "sedition" as defined in Section 124A IPC or could be construed to fall under Section 153A, 153B, 505(2) and 120B IPC.

Section 196 of CrPC doesn't take away the power of Police to register an FIR u/s 154 CrPC

It was argued by Hussain (the petitioner) that the Police could not have lodged an FIR against him and the case against him could have been launched only on a formal complaint by the District Magistrate.

To this, the Court clarified that the bar created under the provisions of Section 196 Cr. P. C. is against the taking of cognizance by the Court and there is, thus, no bar against the registration of FIR or investigation by the police, if information received by the police discloses commission of cognizable offence.

[NOTE: Sub-Section (1) of Section 196 states that the offences punishable under Section 124A and Section 153A of the IPC cannot be taken cognizance of by the Court except with the previous sanction of the Central Government or of the State Government.

Similarly, Sub-Section (1A) of Section 196 states that the the Court cannot take cognizance of an offence punishable under Section 153B or 505(2) of IPC except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.]

In this backdrop, the Court said,

"The provisions of Section 154 Cr. P. C. are not controlled by Section 196 of the Code. As stated above, Section 196 Cr. P. C. comes into operation only at the time when the Court is to take cognizance of the offence and proceed in the matter in a particular way prescribed under law."

Lastly, the Court said,

"The offences charged against the petitioner are not made out and, therefore, registration of FIR, investigation and its culmination into presentation of challan is only abuse of the process of law."

The conclusion drawn by the Court

• Section 196 Cr. P. C. would come in operation at the stage of taking of cognizance by the Court and the Court will refuse to take cognizance of the offence(s) referable to Section 196 Cr. P. C., if there is no previous sanction by the Central Government or State Government or District Magistrate, as the case may be.
• That in case, challan with regard to the offence(s) having reference to Section 196 Cr. P. C. is presented before the Judicial Magistrate without obtaining prior sanction from the competent authority, the Court shall not take its cognizance but return the same to be presented only after seeking previous or prior sanction of the competent authority.
• That the Court shall be deemed to have taken cognizance only if it applies its mind to the Final Police Report submitted before it in terms of Section 173 Cr. P. C. with a view to proceed further in the manner provided in law.
• That the Magistrate, who finds the police report not in consonance with Section 196 Cr. P. C. shall not retain the challan and proceed in the matter rather it would return the same to the prosecution.

Case title - Zakir Hussain v. UT of Ladakh and ors. [CRM(M) No.283/2020 CrlM No. 1098 of 2020]

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