The Court said that though the comments may have been “unsavoury and detestable”, it would not amount to either “sedition‟.
The Jammu and Kashmir High Court recently quashed a sedition case filed against Zakir Hussain, a Councillor of the Ladakh Autonomous Hill Development Council, Kargil, (LAHDCK) for his demeaning comments on the Indian armed forces in the backdrop of clashes with China at Galwan Valley of Ladakh last year (Zakir Hussain Vs. UT of Ladakh and ors.).
The Court ruled that in order to make out the offence of sedition, it is necessary to demonstrate that alleged acts have the tendency or intention to create public disorder or disturb public peace.
Hussain had been booked by the police after he had reportedly mocked Prime Minister Narendra Modi and the Indian army following the Galwan valley face-off, in an audio clip that went viral on social media. The audio clip contained a conversation between the petitioner and one Nissar Ahmad Khan. 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.
Justice Sanjeev Kumar ruled that the controversial comments made by Hussain, though unsavoury and detestable did not constitute sedition under Section 124A, IPC or attract the offences under Sections 153-A, 153-B, 505(2) and 120-B of the IPC.
The Court added that the criminal proceedings initiated over these comments was a “sheer abuse of the process of law.”
The Court, therefore, exercised its inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) to quash all the criminal proceedings against Hussain.
The judge explained that to make out an offence under Sections 124A, 153-A, 153-B, 505(2) and 120-B IPC, it is necessary to demonstrate the alleged offender’s acts “have the tendency or intention of creating public disorder or disturbance of public peace by incitement to offence.“
“Undoubtedly, in the conversation the petitioner has demeaned the Indian Forces and eulogized the armed forces of China in the context of recent Galwan valley conflict between the two nations. 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 said.
Further, there is 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, the Court added.
Along with co-accused Nisar Ahmad Khan, Hussain was booked by the Kargil Police for offences under Section 124-A (sedition), 153-A (creating enmity between groups), 153-B (making imputations prejudicial to national integration), 505(2) (public mischief), 120-B (criminal conspiracy) of the IPC.
While Hussain was also suspended from discharging the duties of a Councilor by the Deputy Commissioner, Kargil, the suspension was stayed after a writ petition was moved in the High Court. This writ petition is still pending before the Court.
Power of Police to register FIR under Section 154, CrPC not controlled by Section 196, CrPC
In quashing the criminal case filed against Hussain, the Court has also clarified that the powers of the police is not controlled by Section 196 of Code of Criminal Procedure (CrPC).
Section 196, CrPC lays down that sanction of Central/State government or District Magistrate is required before a Court can take cognisance of certain offences, namely offences against the State and for criminal conspiracy to commit such offence under Sections 153A, 153B and 505, IPC.
Hussain had argued that the case against him could only have been launched on a formal complaint by the District Magistrate and that the police could not have filed the FIR without such sanction.
The Court, however, disagreed. It clarified that the bar under Section 196, CrPC only kicks in at the stage of taking cognisance by a court. The Court went on to sum up the legal position thus:
- Section 196, CrPC, does not, in any manner, control Section 154, CrPC (registration of FIR). The police is competent to register an FIR if information received by it discloses the commission of a cognizable offence, even if it is referable to Section 196, CrPC.
- The police, who are competent to register FIR under Section 154, CrPC are equally competent to investigate the same and present the final report before the Court.
- Section 196, CrPC would come in operation at the stage of taking of cognizance by the Court. The Court will refuse to take cognizance of the offences(s) referable to Section 196, CrPC if there is no previous sanction by the Central Government or State Government or District Magistrate, as the case may be.
- If a challan with regard to the offence(s) referred to in Section 196, CrPC 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 prior sanction of the competent authority.
In any case, the Judge ruled that the case against Hussain is being set aside as “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.”