"He Demeaned Indian Forces But Sedition Case Against Him Is Abuse Of Law": J&K HC Quashes Case Against Councillor For Remarks During Indo-China Face-Off

The Jammu & Kashmir High Court on Thursday (11th February) quashed a sedition case filed against an elected Councillor of LAHDC (Ladakh Autonomous Hill Development Council, Leh) who was accused of making derogatory remarks against the leadership of the Country and against the Armed Forces of the Country. While exercising its power under Section 482 CrPC the Bench of Justice Sanjeev Kumar quashed the Case and opined, "The conversation contained in the audio clip, if examined in its entirety, does not make out a case of sedition or the offences under Section 153A, 153B, 505 read with Section 120-B IPC and would be saved by the fundamental guarantee to free speech and expression assured to the citizens of this Country by Article 19(1)(a) of the Constitution of India." Background of the Case As per the case of the prosecution, on 18.06.2020, Police received a piece of information from reliable sources that an audio clip containing objectionable conversation pertaining to the armed forces of the Country having reference to clashes between the Indian Army and armed forces of China that took place in the Galwan Valley, had gone viral on social media. On the basis of this information, the subject FIR was registered by the police and investigation of the case was set into motion. During the investigation of the case, an audio clip of 6.3 minutes duration was seized and it was found to contain a conversation between the petitioner/accused, Zakir Hussain, and co-accused Nissar Ahmad Khan. Allegedly, the conversation contained extremely objectionable expressions and sentences allegedly used by the petitioner against the Country, its leadership as well as against the Indian Armed Forces. Accordingly, the petitioner was arrested on 19th June 2020. The FIR was registered for offences under Section 124A (Sedition), 153A (Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony), 153B ( Imputations, assertions prejudicial to national-integration), 505(2) (Statements creating or promoting enmity, hatred or ill will between classes) and 188 (Disobedience to order duly promulgated by public servant) of IPC registered with Police Station, Kargil. Court's Analysis At the outset, the Court observed that in the said conversation, the petitioner had demeaned the Indian Forces and eulogized the armed forces of China in the context of recent Galwan valley conflict between the two nations. However, the Court further said, "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 was of the view that there was 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. [Note: For an act to be called seditious in terms of Section 124A of the Indian Penal Code, it should have the following contents: - Any word, which can be either written or spoken or signs which include placard/poster (visible representation). Must bring or attempt to bring hatred/contempt/ disaffection against the Indian State. Must result in imminent violence or public disorder.] In this backdrop, the Court concluded that the conversation contained in the audio clip, though unsavoury and detestable, would not amount either to "sedition" as defined in Section 124A IPC or could be construed to fall under Section 153A, 153B, 505(2) and 120B IPC. Section 196 of CrPC doesn't take away the power of Police to register an FIR u/s 154 CrPC It was argued by Hussain (the petitioner) that the Police could not have lodged an FIR against him and the case against him could have been launched only on a formal complaint by the District Magistrate. To this, the Court clarified that the bar created under the provisions of Section 196 Cr. P. C. is against the taking of cognizance by the Court and there is, thus, no bar against the registration of FIR or investigation by the police, if information received by the police discloses commission of cognizable offence. [NOTE: Sub-Section (1) of Section 196 states that the offences punishable under Section 124A and Section 153A of the IPC cannot be taken cognizance of by the Court except with the previous sanction of the Central Government or of the State Government. Similarly, Sub-Section...

"He Demeaned Indian Forces But Sedition Case Against Him Is Abuse Of Law": J&K HC Quashes Case Against Councillor For Remarks During Indo-China Face-Off

Sparsh Upadhyay

The conversation would be saved by the fundamental guarantee to free speech and expression assured to the citizens of this Country by Article 19(1)(a) of the Constitution of India: J&K HC

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