J&K HC quashes criminal proceedings against LAHDC councilor
Says offences charged against petitioner are not made out
Srinagar: The J&K High Court Friday quashed all the criminal proceedings against Zakir Hussain, a councilor from Ladakh, with regard to his last year’s audio clip in which he had allegedly used offensive language against PM Modi and Indian Army over the standoff with China.
Hussain had been arrested in June 2020 for allegedly using deprecating language during his conversation with a person on Indo-China border stand-off in Ladakh. His conversation was recorded and put on a social media platform.
Police had charged the councilor for the alleged conversation under Section 124A and 153A, the penal code dealing with sedition and societal enmity.
Justice Sanjay Dhar, who heard the councilor’s petition, referred to a Supreme Court judgment and said “mere expression of derogatory or objectionable words may not be a sufficient ground for invoking the provisions contained in Section 124A or 153A.”
Finding substance in the petition, Justice Dar said “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.”
He invoked the court’s inherent powers and quashed all the criminal proceedings pending against the petitioner including the impugned FIR with regard to the audio clip, which allegedly contained conversation between the petitioner and one Nissar Ahmed Khan.
Police had booked the Ladakh Autonomous Hill Development Councilor for commission of offences under sections of law dealing with sedition, promoting enmity between different groups on the grounds of religion besides imputations and assertions prejudicial to national integration, criminal conspiracy and a string of other offences.
For making out cases on sedition, enmity, criminal conspiracy and other crimes, it t is necessary to demonstrate that the words written or spoken or signs or visible representation have the tendency or intention of creating public disorder or disturbance of public peace by incitement to offence, Justice Dhar said.
He said “the vires of Section 124A and Section 505 of the IPC were challenged on the ground that the same had the effect of abridging or taking away the fundamental right to free speech and expression guaranteed by Article 19(1)(a) of the Constitution.”
The Supreme Court, he said has held that it is only when the words, written or spoken, etc., which have the pernicious tendency or intention of creating public disorder or disturbance of law and order, that the law steps in to prevent such activities in the interest of public order.
“The Supreme Court, thus, concluded that Section 124A, so construed, shall strike the correct balance between individual fundamental right and the interest of public order. That being so, the provisions of impugned Section 124A as well as 505 (2) would fall within reasonable restrictions on the fundamental right of speech and expression and, therefore, would render the provision constitutional,” he said.
The legislation according to the apex court has on the one hand to fully protect and guarantee the freedom of speech and expression, the sine quo non of a democratic form of government that our Constitution has established, he said.