Kargil Congress Councillor ‘demeaned armed forces’ but didn’t commit sedition, says J&K HC

LAHDC-K Councillor Zakir Hussain was charged with sedition and other offences under IPC in June last year for his comments on the Indian Army.

Jammu and Kashmir High Court | jkhighcourt.nic.in

New Delhi: The Jammu and Kashmir High Court has quashed sedition charges against Zakir Hussain, Councillor in the Ladakh Autonomous Hill Development Council-Kargil (LAHDC-K), and said the criminal proceedings against him were “sheer abuse of the process of law”.

Hussain was charged with sedition and other offences in June last year for his comments on the Indian Army, following clashes with China’s People’s Liberation Army at Galwan Valley in Ladakh in which 20 Indian soldiers were killed.

The FIR, filed on 19 June 2020, also mentioned Sections 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 120B (criminal conspiracy) of the IPC.

In its judgment Thursday, Justice Sanjeev Kumar observed that even though Hussain’s comments “demeaned the Indian Forces” and “does bring into contempt the government”, it would still not amount to sedition. “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 high court added.

The court asserted that the comments “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”.

It therefore allowed Hussain’s petition and quashed the proceedings against him.

‘Though unsavoury, but not sedition’

On 18 June last year, the Kargil police had received information that an audio clip containing “objectionable conversation, demeaning armed forces of the country”, in the backdrop of clashes between Indian and Chinese soldiers in Galwan Valley had gone viral on social media.

The police had registered an FIR at the time and arrested Councillor Hussain and one Nissar Ahmad Khan, with whom he was in conversation with in the audio clip. A final report was filed on completion of the investigation before the chief judicial magistrate, Kargil on 17 September last year. Both men were granted bail on 24 September 2020 by the high court..

While Hussain had asserted that the conversation did not amount to sedition or any of the other offences that he was charged with, the Ladakh UT administration had contended that “the audio clip is highly objectionable and critical of the role played by the brave hearts of Indian Army during recent Galwan Valley conflict with their counterparts of Republic of China”.

The court, however, referred to the Supreme Court verdicts in the Kedar Nath Singh case and Balwant Singh case, asserting that for anything to be an offence under Sections 124A, 153A, 153B and 505(2) of the IPC, it needs to have “the tendency or intention of creating public disorder or disturbance of public peace by incitement to offence”.

It also asserted that even though the conversation was “unsavory and detestable”, it would not be covered by any of the provisions that Hussain has been charged with.

‘Sanction not necessary for filing FIR’

Hussain had also challenged the proceedings on the ground that no previous sanction from the government was taken to launch the prosecution against him. He had cited Section 196 of the Code of Criminal Procedure (CrPC) which requires sanction by the central or the state government before the court could take cognisance of certain specific offences like sedition, Section 153A, etc.

In this case, the police had filed the final report before the magistrate without such a sanction.

The court Thursday also clarified that previous sanction under Section 196 of the CrPC did not stop the police from registering an FIR if it got any information about the commission of a cognisable offence. (A cognisable offence is one where the police may arrest without warrant so that it can investigate the case.)

Section 196 the CrPC, it said, would come into operation only at the stage of a court taking cognisance of the offence. It said that “the court will refuse to take cognisance of the offence(s)…if there is no previous sanction by the central government or state government or district magistrate”.

The high court added that if the final report is presented before the judicial magistrate without getting prior sanction from the appropriate authority, then the court should not take its cognisance but return it to the police.

“The magistrate, who finds the police report not in consonance with Section 196 the CrPC, shall not retain the challan and proceed in the matter, rather it would return the same to the prosecution,” it added.