J&K High Court quashed FIR against ET Journalist; Executive Magistrate has no power to direct for registration of FIR

District Magistrate, Police register FIR against Journalist with malice intention : J&K HC

I have not filed any complaint against petitioner, police & magistrate register the same on its own, complainant told HC

Jammu Feb 10 In a significant judgement, the Jammu and Kashmir & Ladakh High Court today order for quashing an FIR against Senior Early Times Journalist Asif Iqbal Naik and termed the same as malice with an intension to silence & harass the journalist who was performing his professional duties.

As per the copy of the judgment available with us, the High Court order quashing of an FIR No.105/2018 registered by Kishtwar police against journalist Asif Iqbal Naik at behest of former DC Kishtwar & SSP Kishtwar with malice intension. Court says that Magistrate has no power to direct registration of FIR against Journalist.

Justice M A Chowdhary of Jammu and Kashmir & Ladakh High Court observed that the petition succeeds on three counts, firstly that the complainant by filing counter to this petition and who was also present in the court at the time of hearing, has denied to have lodged any complaint so as to base the impugned FIR, secondly, SHO in his status report has also stated that the complainant had not associated with the investigation despite several requests and thirdly that the District Magistrate as an Executive Magistrate was not competent to issue directions for investigations of the case in view of the law laid down by the Apex Court in case reported as (2019) 2 SCC 344 (supra).
In a petition filed by Journalist Asif Iqbal Naik through Advocate Faheem Shokat Butt under Section 561-A J&K CrPC seeking quashment of the FIR No. 105/2018 dated 28.04.2018 registered at Police Station Kishtwar, wherein the petitioner-accused person was found involved in the commission of offences punishable under Sections 504, 505, 506 & 336 RPC.
Petitioner pleaded that the petitioner is a reputed journalist and associated with Early Times Newspaper, Jammu and Kashmir, as also with Times Now English News Channel and has broken down various stories of national importance. The petitioner earned lot of respect amongst the masses and carved out a special and unique place for himself amongst the journalist fraternity. He constantly highlighting the issues which are relating to masses and also reporting the administrative lapses and police brutalities from time to time due to which he is not in good books of the administration and police officials and they are looking an opportunity to settle the score so that the petitioner could be prevented from reporting anything incriminating against the administration and police officials of the District. The respondents including District Magistrate, Senior Police officials are inimical to petitioner and have number of times directly and indirectly threatened the petitioner of dire consequences and have even warned him that they will file multiple FIRs against him and on the basis of those FIRs the dossier will be forwarded to District Magistrate Kishtwar with recommendation to impose Public Safety Act upon the petitioner.
That District Development Commissioner Kishtwar vide communication dated 25.04.2018 directed the police to register an FIR under Section 504, 505, 506, 336 RPC against the petitioner on the instance of the respondent No 4 (complainant) with further direction to police to investigate the matter in detail under an intimation to his office; that the allegations leveled against the petitioner that during the intervening night of 12th and 13th April, 2018 the respondent No.4 had chat with India Today Channel during midnight march at India Gate, Delhi and the petitioner who is working as a reporter of Early Times newspaper in Kishtwar took the screenshot of the news bite and uploaded the same on his facebook account which shows the picture of complainant and anchor/reporter of India Today news channel and the said screenshot also shows the picture of Asifa the eight years old rape and murder victim of Kathua, the petitioner addresses India Today and apprised them that respondent No.4 (complainant) is hailing from Kishtwar which is 330 km away from Asifa’s village and stating to them to check the credentials of persons before uploading anything on TV; that the complainant alleged that besides attack on his privacy and security the petitioner in his comments responded to the comments of two persons and termed that the complainant is doing this all for cheap publicity; that the petitioner put his security among the public at grave risk by doing such act when he away from home and has exposed and threatened his privacy; due to this propaganda, the public can lynch him over such a sensitive issue and since he has a large family at his native town, his family members especially youth and friends are bereaving in anger and contacted him on phone and there is every apprehension of breach of peace due to attack on his reputation, privacy and security in the open public domain on the internet due to false propaganda by the petitioner on social media.

Respondent Nos. 1 & 3 in their counter has stated that on 25.04.2018 a complaint submitted by one Junaid Hussain Malik S/O Late Gh. Mohd
Malik R/O Ward No.7, Kishtwar against Asif Iqbal Naik S/O Gh. Rasool Naik R/o Shaheedi Mohalla Kishtwar was received from the office of Deputy Commissioner Kishtwar through DPO Kishtwar with the direction for registration of FIR into the matter and accordingly on the directions the SSP Kishtwar FIR No. 105/2018 U/Ss 336, 504, 505, 506 RPC stand registered at Police Station Kishtwar and investigation was taken up. During the investigation, the I.O perused the complaint, issued notice thrice U/S 160 CrPC to the complainant, wherein he was also requested to appear before the I.O for recording his statements and also produce all record available with him, supporting his complaint, but the complainant neither appeared before the I.O, nor produced any record till 28.12.2018, thereafter the investigation of the case was stayed by this Court vide order dated 28.12.2018 and prayed that as and when stay is vacated, further investigation can be taken to a logical end.
Respondent No.4 (complainant) in his counter has also pleaded that he is not aware of any such complaint made against the petitioner before the Deputy Commissioner, Kishtwar which became the basis of FIR impugned in the instant petition. He did not approach either the Deputy Commissioner Kishtwar or to the police for registration of FIR against the petitioner. He received a telephonic call on his mobile from a person, claiming to be the I.O of the case who requested him to record his statement, however, he apprised him that he is unaware of any such complaint attributed to him.
According to learned counsel for petitioner, Advocate Faheem Shokat Butt allegations levelled against the petitioner are totally baseless, malicious and do not disclose any offence. It is averred that allegations made in the FIR, even if are taken on their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the petitioner and despite such facts petitioner is being harassed by respondents just to jeopardise his profession and this is a beaten law of the land that where a criminal proceeding is manifestly attended with malafide or maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spit them due to private or personal or some special grudge, the superior courts should with their inherent powers intervene in the matter to prevent miscarriage of justice and abuse of process of law, as such, the same is required to be quashed.

Before analyzing the facts emanating from the record of the trial court, it would be apt to notice the legal position as regards the scope of powers of the High Court under Section 482 of the Code of 1973, to interfere with the proceedings/complaint filed before a Magistrate.
This is not in dispute that the petitioner is a journalist by profession and his job is to gather information and publish the same in the newspaper or in any other media. The information published in the form of news may pertain to issues of national/ international importance or local in nature and in case the respondents were aggrieved of the same and they had some other version, they too could have resorted to the same mode, by getting published their part of version. Even the complainant/respondent No.4 who stated to have lodged the impugned FIR has stated in his objections that he did not approach either the Deputy Commissioner Kishtwar or to the police for lodging of FIR against the petitioner, but the police on its own lodged the FIR, to investigate the matter.

So far as allegations with regard to commission of offence under section 504 RPC is concerned, there is no allegation that the petitioner has insulted any one thereby provoking him to break the public peace or commit any other offence. As such, uncontroverted allegations made in FIR do not even
constitute offence under section 504 RPC. Now, it is to be seen as to whether as per the allegations levelled in FIR, It is reiterated that there is nothing to suggest that the post of petitioner on social networking site caused insult and has potential to provoke breach of peace by public. 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 tranquility.
The mode and manner in which the impugned FIR has been lodged clearly reflects no offence is disclosed against the petitioner was a journalist and the respondents could have given their version by similar mode but they chose unique method of silencing the petitioner. Needless to say that press is often referred to as the fourth pillar of democracy and freedom of the press is vital for the functioning of any democratic country like India. No fetters can be placed on the freedom of press by registering the FIR against journalists, who perform their professional duty by publishing news items on the basis of information obtained by them from an identifiable source, however, they are also expected to report the coverage with responsibility without any jingoism and divisive publication or telecast.

The impugned FIR had been lodged at the directions of District Magistrate Kishtwar, who was not competent to do so in view of the law laid down by the Apex Court in case titled “Naman Singh @ Naman Partap Singh & Anr. Vs State of Uttar Pradesh & Ors.”, reported as (2019) 2 SCC 344.

It is therefore apparent that in the scheme of the Code, an Executive Magistrate has no role to play in directing the police to register an F.I.R. on basis of a private complaint lodged before him.

For the reasons discussed hereinabove, the instant petition is allowed and the impugned FIR No. 105/2018 dated 28.04.2018 registered at Police Station Kishtwar against the petitioner-accused person for the commission of offences punishable under Sections 504, 505, 506 & 336 RPC, is not sustainable. Impugned FIR is thus liable to be quashed.
As a result, petition is allowed. Impugned FIR No. 105/2018 registered against petitioner for the commission of offences punishable under Sections 504, 505, 506 & 336 RPC at Police Station Kishtwar, is hereby quashed.