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.”
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.
“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.
For the Petitioner: F. S. Butt, Advocate
For the UT of J&K: Suneel Malhotra, GA