Jammu and Kashmir High Court: Sanjeev Kumar, J., addressed the instant petition whereby the petitioner was charged for sedition under Sections 124-A, 153-A, 153-B and 505(2), 120-B of IPC in connection with a viral audio clip containing demeaning content regarding armed forces. The Bench said,
“…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 Sections 153A or 153B IPC.”
Facts of the Case
On 18-06-2020 the police had registered an FIR against one Zakir Hussain and co-accused Nissar Ahman Khan in connection with a viral audio clip containing objectionable conversation, demeaning armed forces of the country in the backdrop of clashes between Indian Army and armed forces of China that took place in Galwan Valley of Ladakh region. The conversation was found to be extremely objectionable containing derogatory references to the role of Indian Army in the Galwan misadventure of armed forces of China.
The petitioner contended before the Court that police had no authority to register an FIR as it had been provided in law that under Section 196 CrPC, the Court can take cognizance only on a complaint filed by District Magistrate and in the instant case no such complaint had been filed.
Observation and Analysis
The Court, observing the complexity of the matter had framed two moot points to be adjudicated in the instant case;
- What is the true import and scope of Section 124-A, 153-A, 153-B, 505(2) IPC when seen through the prism of Article 19(1) of the Constitution of India?
Constitutionality of Section 124A along with Section 505 of the IPC came up for consideration before Supreme Court in the case of Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769, wherein the Court had held, “it is only when the words, written or spoken, etc., which have the pernicious tendency or intention of creating public disorder or disturbance of law and order, that the law steps in to prevent such activities in the interest of public order.” It had been concluded that Section 124A should strike the correct balance between individual fundamental right and the interest of public order.
In the backdrop of legal position adumbrated above, the conversation contained in the audio clip, would not constitute any of the offences alleged against the petitioner. The Bench observed,
“There is no material to demonstrate any criminal conspiracy between the petitioner and Nissar Ahmed Khan to commit sedition or prior concert or meeting of minds to commit the offences with which both have been charged by the police.”
Undoubtedly, the petitioner had demeaned the Indian Forces and eulogized the armed forces of China Khan, which bring into contempt the Government established by law in India, but unless the conversation had 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.
- Whether FIR can be registered for commission of offences under Section 124A, 153A, 153B, 505(2) and 120-B IPC without prior sanction of the competent authority as envisaged in Section 196 of the Code of Criminal Procedure?
From a perusal of Section 196(1), it could be transpired that the offences punishable under Section 124A and Section 153A of the IPC could not be taken cognizance of by the Court except with previous sanction of the Central Government or of the State Government. It is, thus, evident that,
The bar created by the provisions of Section 196 CrPC was against taking of cognizance by the Court and there was no bar against registration of FIR or investigation by the police if information received by the police discloses commission of cognizable offence.
In the instant case all the offences, with which the petitioner had been charged, were cognizable. It was, thus, well settled and beyond any pale of doubt that the provisions of Section 154 CrPC were not controlled by the provisions of Section 196 and both operate at different points of time and at different stages of a criminal case.
In the light of above, the Bench laid down a detailed guideline regarding Section 196 of CrPC,
- For making out an offence under Sections 124A, 153A, 153B and 505(2) IPC, it was necessary to demonstrate that the words written or spoken or signs or visible representation had the tendency or intention of creating public disorder or disturbance of public peace by incitement to offence. (Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769,);
- That the provisions of Section 196 CrPC did not, in any manner, control Section 154 of the Code of Criminal Procedure, in that, the police was competent to register an FIR, if information received by it discloses commission of cognizable offence, even if it was referable to Section 196;
- Section 196 CrPC would come in operation at the stage of taking of cognizance by the Court and the Court would have to refuse to take cognizance of the offence(s) referable to Section 196 CrPC, if there was no previous sanction by the Central Government or State Government or District Magistrate, as the case may be.
- In case, report with regard to the offence(s) having reference to Section 196 CrPC was presented before the Judicial Magistrate without obtaining prior sanction from the competent authority, the Court should not take its cognizance but return the same to be presented only after seeking previous or prior sanction of the competent authority.
- The Court should be deemed to have taken cognizance only if it had applied its mind to the Final Police Report submitted before it in terms of Section 173 CrPC with a view to proceed further in the manner provided in law.
- That the Magistrate, who would find the police report not in consonance with Section 196 CrPC should not retain the report and proceed in the matter rather it would return the same to the prosecution.
Hence, the petition was allowed and all the criminal proceedings pending against the petitioner including the impugned FIR were quashed. [Zakir Hussain v. UT of Ladakh, 2021 SCC OnLine J&K 64, decided on 11-02-2021]
Kamini Sharma, Editorial Assistant has put this story together.