Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu Kashmir and Ladakh High Court: Rajnesh Oswal, J., quashed the FIR registered against a journalist for publishing the news report disclosing an incident Police brutality. The Bench expressed,

“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.”

Background

The petitioner was a reputed journalist who published a story in the Newspaper “Early Times” in its edition of 19-04-2018 under the heading, “Father of 5 brutally tortured by Kishtwar Police”. The said news related to one Akhter Hussain, 26 year-old Kishtwar man, the father of five children, who was shifted in a critical condition to Government Medical College Jammu after being allegedly subjected to third degree torture by Kishtwar police. The victim was stated to be kept in illegal detention by the police where he was subjected to brutal torture as a result of which he was in critical condition.

It was further submitted that brother of said Akhter Hussain, Abdul Ganie had filed a criminal complaint against respondents under sections 330, 331, 342, 348 RPC in which the similar contents were mentioned, those were got published in the newspaper mentioned above. The grievance of the petitioner was that the respondents got furious due to the reporting by the petitioner, and an FIR had been registered against him under Ss. 499, 500, 504 and 505 of RPC. The petitioner had impugned the FIR on the ground that it FIR had been lodged to harass the petitioner so as to stop him from publishing any news item against the Police establishment and to gag the press and electronic media, which amounts to infringement of right of free speech and expression as guaranteed under the Article 19 of the Constitution of India.

Stand taken by the Police

The stand of the Police was the petitioner had tried to instigate the people of Kishtwar against the Police and thus created rage/confusion among the public through the publication of that news report to the extent to commit offence of any type including road blockade, vandalism, breakage of public property etc.

Can Publication of News amount to Defamation?

Opining that the petitioner being a journalist his job was to gather information and publish the same in the newspaper or in any other media, the Bench stated that mere perusal of the news item reflected that it had been published pursuant to the information disclosed by the kin of the victim which was further corroborated by the criminal complaint lodged by the real brother of victim.

Hence, the Bench opined that the publication of the news item on the basis of statement made by the cousin and brother of the victim did not amount to offence under section 499 RPC as the petitioner had been performing his professional duty of reporting the matter specially when a complaint pertaining to the similar facts had been lodged by the relatives of the victim.

Freedom of Press v. Breach of Peace

 Rejecting the allegation that the petitioner by publishing the controversial news item tried to instigate the peaceful public to commit acts of vandalism, road blockages and acts of destruction of public property, the Bench stated that the petitioner had simply published what was told to him by the kin of the victim and 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 tranquillity.

Relying on the decision of Supreme Court in Bilal Ahmad Kaloo v. State of A.P., 1997 (3) Crimes 130 (SC), wherein it was held that, “ingredient of offence mens rea is a necessary postulate for the offence under Section 505 IPC”; the Bench stated that mens rea is an essential 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 Bench stated,

“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.”

Accordingly, it was held that prima facie there was nothing in the FIR that the petitioner desired to generate the consequences as claimed by the respondents and rather he had performed his professional duty. Further, the said news 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.

The Bench added, even if the sais offence was committed the case of the petitioner would fall under exception to Section 505 RPC which clearly provides that when a person making, publishing or circulating such report, rumour or report has reasonable grounds for believing that such statement, rumour or report is true and make publishes or circulates in good faith and without any such intent, such publication would not amount to offence.

Decision

“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.”

Hence, the Bench held that the FIR impugned was nothing but an abuse of process of law as mere fact that FIR was lodged only against the journalist and not against the person, who had disclosed the said incident to the journalist prima facie, established malice on the part of the respondents. In view of the above, the impugned FIR was quashed. [Asif Iqbal Naik v. UT of J&K, CRMC No. 289 of 2018, decided on 23-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: F. S. Butt, Advocate

For the UT of J&K: Suneel Malhotra, GA

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: P. Naveen Rao, J., while addressing the instant matter observed that,

“When a citizen comes to the High Court alleging infringement of his right to life, liberty and privacy by opening a rowdy sheet, the Court can look into whether the decision of the police to have surveillance on the petitioner is justified and supported by the material on a record or it was initiated only to harass and humiliate the individual.

It is to be noted that mere involvement in a crime may not per se require surveillance on that person.”

Kasula Nandam is said to be the protected tenant and in possession of land to an extent, Acs.6.32 guntas in Sy. No. 170 of Kapra village, having obtained occupancy rights certificate in the year 1979.

The petitioner who used to run a cloth shop was appointed as the General Power of Attorney holder to look after the above-stated property. Further, he stated that there are several bogus claimants over the said land.

Petitioner added that several false claims on the land were made by lodging complaints against the petitioner over a period of time.

On the ground of registration of crimes, and pending trial before the Criminal Courts, rowdy sheet is opened and in the guise of the opening of the rowdy sheet, respondent-Police are keeping close surveillance on the movements of the petitioner, affecting his right, liberty and privacy.

Respondent-Police alleged that there is ample evidence alleging that the petitioner has been grabbing private and Government Lands by way of illegal means, that due to fear of the petitioner, no one is coming forward to lodge a complaint.

Hence, in view of the public interest and to safeguard the residents of the area, where the petitioner is residing, and to curb his unlawful activities, the rowdy sheet is opened.

Whether the Police are justified in opening the rowdy sheet against the petitioner?

Enforcement of law and order is the most important state function. Enforcement of law and order includes taking all preventive measures to ensure that no untoward incident happens and peace and tranquillity is not affected. To prevent a breach of peace and tranquillity, it is permissible for the police to take all measures possible.

It was noted that for the purpose of keeping surveillance, Police Standing Order 601 enables opening a Rowdy Sheet in the concerned police station. After the opening of the rowdy sheet, close surveillance is enforced on the concerned person

Court observed that,

Opening of Rowdy Sheet and thereon keeping close surveillance on the person would certainly infringe upon the right to life, liberty and privacy of the individual concerned.

A person is entitled to lead his life with dignity and self-respect and does not want an outsider to intrude in his private affairs and to probe into his movements.

Thus, there are two competing interests in preventive measures. On the one side is right guaranteed by Article 21 of the Constitution of India, which is sacrosanct and on the other side is the primacy of enforcement of law and order, maintenance of peace and tranquillity, which is the primary responsibility of the State through its police force. Compelling public interest may require intrusion into the privacy of a person.

Bench further observed that the principles governing the opening of Rowdy Sheet vis-a-vis the right to life and liberty, it is necessary to consider whether by opening rowdy sheet against the petitioner, respondent police have violated the mandate of Article 21 of the Constitution of India and whether their decision is supported by reasons warranting requirement to open rowdy sheet.

Crimes that the petitioner was involved in included Sections 447 IPC (criminal trespass); 427 IPC (Mischief); 506 IPC (criminal intimidation); 420 IPC (cheating and dishonestly inducing delivery of property); 468 IPC (forgery for purpose of cheating); 471 IPC (using as genuine a forged document); 452 IPC (House trespass after preparation for hurt, assault or wrongful restraint); 120-B IPC (criminal conspiracy) and 34 IPC (Act done by several persons in furtherance of common intention).

The above-stated would show that the petitioner was in the habit of being involved in crimes, disturbing peace and tranquillity.

Hence, the Court held that,

Having regard to the crimes registered against the petitioner and that he was facing trial in five cases, it cannot be said that the Police action in opening rowdy sheet amounts to abuse or misuse of power and authority, and cannot be said as one made in the illegal exercise of power and without application of mind.

While dismissing the petition, Bench made it clear that while keeping surveillance, Police shall ensure that it is minimal, not obtrusive and not to impinge upon his privacy.[M. Laxman v. State of Telangana,  2020 SCC OnLine TS 1600, decided on 03-12-2020]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Gurvinder Singh Gill, J., dismissed a petition for grant of parole, however, allowing the petitioner to be taken out in custody for solemnizing the marriage.

The petitioner was a convict in as many as 14 other cases and a case under provisions of IPC and Arms Act was still pending against him. The petitioner sought emergency parole of 6 weeks to solemnize his 3rd marriage. The petition was opposed by the learned State counsel submitting that there was an apprehension of breach of peace in the village, and on an earlier occasion, the petitioner had absconded while on parole.

The High Court noted the aforestated position and observed that the petitioner was a seasoned criminal and earlier, he had committed offences even on parole. As such, the Court did not find any sufficient ground to grant 6 weeks parole to the petitioner. However, since the fact of his marriage was verified by the State, the petitioner was allowed to be taken out in custody for one day so as to enable him to solemnize marriage, after which, the petitioner was to be consigned back in jail on the same day. It was directed that the expenditure of the entire exercise was to be borne out by the petitioner. [Vijay v. State of Haryana, 2018 SCC OnLine P&H 856, dated 27-06-2018]