Jammu and Kashmir and Ladakh High Court: While deciding the instant petition seeking quashment of FIR against the media outlet Kashmiryat and Kashmir Walla regarding an article on their news portal claiming that the Army had forced the school authorities of Siraj-ul-Uloom to celebrate Republic Day; the Bench of Vinod Chatterji Koul, J., held that the instant case when examined on the touchstone of law laid down by the Supreme Court, has not persuaded this Bench to grant the relief prayed for by the petitioner. It was further held that since the FIR has been registered alleging the commission of offences punishable under Sections 153, 505 IPC, which requires to be investigated by the police and during the investigation the petitioners can take the defence which may be available to them.
An FIR was registered with Police station, Imam Sahib, Shopian, based on a written complaint made by Company Commander D-Coy 44 1- Rashtriya Rifles Camp under Section 153 (Wantonly giving provocation with intent to cause riot) and Section 505 (Statements conducing to public mischief) of Penal Code, 1860, for publishing an article on 27-01-2021, alleging that Siraj-ul-Uloom was pressurized by the Army to hold the 72nd Republic Day function in their school. The article also stated that the National Flag was unfurled, and celebrations of Republic Day were carried out in presence of the Army,
During the investigation, it was found that article was published by Mir Junaid of Kashmiryat and Yashraj Sharma of Kashmir Walla. Further during investigation, the statement of Yousuf Matoo, Chairman, Siraj-ul-Uloom, was recorded, wherein he stated that allegation made against the army were baseless. The investigation in the matter is still underway.
The respondents submitted that the impugned article has falsely accused the Army of using force for celebrating Republic Day at Siraj-ul-Uloom; and by such false publication, the petitioners had intended to cause provocation to commit riots. Thus, they have committed offences punishable under Section 153 as well as Section 505 of IPC.
The petitioner on the other hand, prayed to the Court to exercise its inherent powers under Section 482 of CrPC.
Perusing the facts of the case and the contentions presented, the Court relied on Rajiv Thapar v. Madan Lal Kapoor, 2013 (3) SCC 330, wherein the Supreme Court delineated the steps to determine the veracity of a prayer for quashment raised by an accused, by invoking the power vested in the High Court under Section 482 of CrPC. It was held that the Court was not persuaded to grant any quashment in the present matter.
Vis-a vis the inherent powers of the High Court under Section 482, the Bench while relied on State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522, where it was observed that Section 482 does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code.
The High Court further noted that Section 482 of CrPC preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. It was further pointed out that while inherent power of the High Court has a wide ambit and plenitude, it must be exercised to secure ends of justice or to prevent an abuse of the process of any court.
[Shah Fahad Peerzada v. UT of J&K, 2022 SCC OnLine J&K 894, decided on 17-11-2022]
Advocates who appeared in this case :
Hashir Shafiq, Advocate and Mohammad Altaf Khan, Advocate for the Petitioners;
Sheikh Mushtaq, AAG for R-1 and T. M. Shamsi, DSGI of R-2.
*Sucheta Sarkar, Editorial Assistant has prepared this brief.