HC quashes FIR against Kargil Congress councillor


Srinagar, Feb 11: Justice Sanjeev Kumar of J&K High Court Srinagar Wing quashed the FIR against Zakir Hussain Councillor of the Ladakh Autonomous Hill Development Council, Kargil who was booked by the police after his "highly objectionable" audio clip mocking Prime Minister Narendra Modi and the Army in the wake of the recent face-off between India & China went viral on social media.
While quashing the FIR, Justice Sanjeev Kumar observed that that the offences charged against the petitioner are not made out and, therefore, the registration of FIR, which has culminated into filing of the Final Police Report without previous sanction from the competent authority before the Chief Judicial Magistrate, Kargil is sheer abuse of the process of law. This Court, therefore, finds it a fit case to invoke its inherent powers vested by Section 482 Cr. P.C and quash all the criminal proceedings pending against the petitioner including the impugned FIR with regard to the audio clip, which allegedly contains conversation between the petitioner and one Nissar Ahmed Khan.
The petitioner is a Councillor of the Ladakh Autonomous Hill Development Council, Kargil, (LAHDCK) and claims to be an educationally qualified and law abiding citizen of the country. He, however, is aggrieved of registration of FIR No.34/2020 registered in Police Station Kargil for commission of offences under Sections 124-A, 153-A, 153-B and 505(2), 120-B of the Indian Penal Code pursuant to the communication of respondent No.4 dated 19.6.2020. The petitioner is also aggrieved of the police report submitted by SHO, Police Station, Kargil to the Court of Chief Judicial Magistrate, Kargil, in terms of Section 173 of the Code of Criminal Procedure. The petitioner seeks quashment of FIR and the entire subsequent proceedings taken pursuant thereto including the order dated 17.09.2020 passed by the Chief Judicial Magistrate, Kargil. On 18.06.2020 the police of Police Station Kargil received an information through reliable sources that an audio clip containing objectionable conversation, demeaning armed forces of the country in the backdrop of clashes between Indian Army and armed forces of China that took place in Galwan Valley of Ladakh region, has gone viral on social media. Taking cognizance of the information received, the police registered the subject FIR and set the investigation into motion. During the course of investigation, it was established that the audio clip of 6.3 minutes duration that had gone viral on social media 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. The police were of the opinion that the conversation was not only extremely objectionable and contemptuous of the country but was also prima facie seditious in nature.
Justice Sanjeev Kumar after hearing both the sides observed that it is, thus, well settled and beyond any pale of doubt that the provisions of Section 154 Cr.P.C. are not controlled by the provisions of Section 196 and both operate at different points of time and at different stages of a criminal case. It is, thus, axiomatic that if the police receives an information, oral or in writing, with regard to the commission of a cognizable offence, even if it is an offence referable to Section 196 Cr.P.C., it is under an obligation to reduce that information in writing and register a formal FIR. Once it is conceded that the police has the power to register an FIR even with regard to cognizable offences referable to Section 196 Cr.P.C., the power to investigate the offence has to be necessarily conceded in favour of the police. The police can even go to the extent of presenting challan/final report before the Court but the Court shall not take cognizance thereof unless there is previous sanction by the Central Government or State Government of District Magistrate, as the case may be.
Justice Sanjeev Kumar further observed that in the instant case, indisputably, previous sanction of the Central Government or State Government is not obtained for launching prosecution against the petitioner. The police haveregistered the FIR and investigated the matter on the asking of the District Magistrate and have, on investigation, submitted the final report before the Court of Chief Judicial Magistrate, Kargil.

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