Constitution of India: Art. 32 – Quashing of FIR under – On facts, FIR against petitioner-renowned journalist u/ss. 124-A, 505, 501, 268 for some statements made by him in his talk show on social media about handling of the Covid Pandemic; and that the Prime Minister has used deaths and terror attacks to garner votes – Act is of instigating violence against the government and the Prime Minister, and creating panic amongst the public and disturbing the public peace by trying to spread false information – Petition u/Art.
32 by the petitioner for quashing of FIR and seeking directions for protection of journalists – Held: All the offences set out in the FIR not made out – Citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government or with the intention of creating public disorder – ss. 124A and 505 comes into play only when the words or expressions have pernicious tendency or intention of creating public disorder or disturbance of law and order – Statements at best can be termed as expression of disapprobation of actions of the Government and its functionaries – They were not made with the intent to incite people or showed tendency to create disorder or disturbance of public peace by resort to violence – Statements attributed to petitioner that Prime Minister used deaths and terror attack to garner votes not made in the Talk Show – Thus, prosecution of the petitioner for the offences punishable u/ss. 124A and 505 (1)(b) unjust and violative of its rights guaranteed u/Art. 19(1)(a) – Furthermore, offences u/ss. 501 and 268 not made out, as also offences punishable u/ss. 52 and 54 of the Disaster Management Act, 2005 and s.188 IPC – As regards, prayer that no FIR be registered against a person belonging to media with at least 10 years of standing unless cleared by the Committee as suggested, the constitution of the Committee is outside the scope of the statutory framework, and any relief granted in terms thereof would amount to encroachment upon the field reserved for the legislature – Thus, FIR quashed, however, prayer for the constitution of the Committee rejected – Separation of powers – Penal Code, 1860 – ss.124-A, 505, 501, 268.
Penal Code, 1860: s. 124A – Sedition – Applicability of s. 124A, when – Explained in terms with the *Kedar Nath Singh vs. State of Bihar’s case.
Partly allowing the writ petition, the Court
HELD: 1.1 The FIR against the petitioner is quashed; but the prayer that no FIR be registered against a person belonging to media with at least 10 years of standing unless cleared by the Committee as suggested, is rejected. [Para 68][1177-C-D]
1.2 The practice of directing that the High Court be approached first even in cases of violation of fundamental rights, is more of a self- imposed discipline by this Court; but in glaring cases of deprivation of liberty, this Court has entertained petitions under Article 32 of the Constitution. Apart from the fact that the right claimed by the petitioner is one under Article 19 (1) (a) of the Constitution, the second prayer made by the petitioner can effectively be considered only in a writ petition. Going by the nature of the second prayer, relegating the petitioner to file a petition under Article 226 of the Constitution, may not be appropriate. Rather, the issue must ideally be settled by this Court. Consequently, the preliminary objection raised by the respondents is not accepted. [Paras 24-25][1106-G-H; 1107-D-F]
Romesh Thappar v. The State of Madras [1950] SCR 594; Jagisha Arora vs. State of Uttar Pradesh and Another (2019) 6 SCC 619; Priya Prakash Varrier and Others vs. State of Telangana and Another (2019) 12 SCC 432:[2018] 10 SCR 615; Amish Devgan vs. Union of India and Others (2021) 1 SCC 1:2020 (12) JT 300 – referred to.
1.3 On facts, it has been established that the statements attributed to the petitioner that the Prime Minister had used deaths and terror attacks to garner votes or that the Prime Minister had garnered votes through acts of terrorism, were not made in the Talk Show. The true translation of the original episode in Hindi, has been placed on record. No such assertions find place in the true translation nor were any objections raised that the translated version was in any way incorrect. The petitioner did say that the air strikes by India on Balakot and attacks on Pathankot and Pulwama were used as political events to garner votes but no allegations were made against the Prime Minister as was stated in the F.I.R. It is true that some of the portions of the Talk Show do assert that there were not enough testing facilities; that there was no information as to the quantum of PPE kits/ suits, N95 masks, and masks of three ply that were available in the country; that the respiratory devices and sanitizers were being exported till 24th March (2020) instead of keeping them for use in the country; that the supply chains got disrupted due to blockage of roads; and that the migrant workers was a huge issue. It was also asserted that with supply chains being closed, some people had feared food riots, which had not happened in the country. [Para 27][1108-C-G]
1.4 Leaving aside two incorrect statements made in the FIR, the following assertions from the talk show are relied upon to state that the offences as alleged are made out:
(i) The statement in the talk show are that it is common knowledge that the countries all over the world found themselves wanting in terms of infrastructure and facilities to cope up with the effects of Covid-19 Pandemic. Considering the size of the population of this country, the testing facilities to gauge and check the spread and effect of the Pandemic, at least in the initial stages of the surge, were not exactly adequate. If in that light, the petitioner made any comments about testing facilities or PPE Suits, N-95 masks and masks of 3 ply, those comments in first two statements, cannot be anything other than appraisal of the situation then obtaining. It was not even the case of the respondents that these two statements were factually incorrect.
(ii) The submission of the respondents was that the ban on export of ventilator and sanitizers was imposed on 19.03.2020 and the said statement was therefore not quite correct. It was also submitted that the petitioner produced no evidence of actual exports before the ban was imposed on 19.03.2020 and that there were no exports immediately proceeding the imposition of ban.
(iii) The effect of Nation-wide lockdown which came into effect from the midnight intervening 24.03.2020 and 25.03.2020, according to the petitioner, resulted in disruption of supply chains due to blockage of roads. It was the submission of the respondents that by Consolidated Guidelines issued on 28.03.2020 (which was stated to be an order under Section 188 IPC), adequate steps were directed to be taken to ensure that there was no disruption in supply of essential goods. It must be stated that the fourth statement did acknowledge that the transportation of essential goods was being allowed and, in that sense, it was more or less correct depiction of the state of affairs then prevailing.
(iv) It was submitted that statements regarding food riot not only gave factually incorrect information but amounted to incite the general public and that it was because of such incorrect information, the movement of migrant workers had begun. On the other hand, reliance was placed by the petitioner on the interview of former Chief Statistician reported on 28.03.2020 that if food requirements of migrant workers were not fulfilled amid countrywide lockdown, food riots could be a real possibility. It was submitted that by the time the talk show was uploaded, the movement of migrant workers had already started and was at the peak. [Paras 38 and 39][1144-F-G; 1145-F-H; 1146-A-F]
1.5 What was prevailing on 30.03.2020 was therefore clear and migrant workers in huge numbers were moving towards their hometowns/villages. In the circumstances, there would naturally be some apprehension about the shelter and food to be provided to them en-route. The former Chief Statistician had expressed a possibility with the intent to invite the attention of the authorities. If the petitioner in his talk show uploaded on 30.03.2020, that is even before the matter was taken up by this Court, made certain assertions in his statements, he would be within his rights to say that as a Journalist he was touching upon issues of great concern so that adequate attention could be bestowed to the prevailing problems. It cannot be said that the petitioner was spreading any false information or rumours. It is not the case of the respondents that the migrant workers started moving towards their hometowns/villages purely as a result of the statements made by the petitioner. Such movement of migrant workers had begun long before. In the circumstances, these statements can neither be taken to be an attempt to incite migrant workers to start moving towards their hometowns or villages nor can it be taken to be an incitement for causing any food riots. The situation was definitely alarming around 30.03.2020 and as a journalist if the petitioner showed some concern, could it be said that he committed offences as alleged. [Para 42][1149-A-E]
1.6 A citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder; and that it is only when the words or expressions have pernicious tendency or intention of creating public disorder or disturbance of law and order that Sections 124A and 505 IPC must step in. The statements by the petitioner, if read in the light of the principles emanating from the decision in Kedar Nath Singh’s case and against the backdrop of the circumstances when they were made, can at best be termed as expression of disapprobation of actions of the Government and its functionaries so that prevailing situation could be addressed quickly and efficiently. They were certainly not made with the intent to incite people or showed tendency to create disorder or disturbance of public peace by resort to violence. The petitioner was within the permissible limits laid down in the decision of this Court in Kedar Nath Singh’s case. It may be that certain factual details regarding the date when the ban came into effect were not completely correct. However, considering the drift of the entire talk show and all the statements put together it cannot be said that the petitioner crossed the limits set out in the decision of this Court in Kedar Nath Singh’s case. Thus, the prosecution of the petitioner for the offences punishable under Sections 124A and 505 (1) (b) IPC would be unjust. Those offences, going by the allegations in the FIR and other attending circumstances, are not made out at all and any prosecution in respect thereof would be violative of the rights of the petitioner guaranteed under Article 19(1)(a) of the Constitution. [Para 43, 44][1149-E-H; 1150-A-D] *Kedar Nath Singh vs. State of Bihar (1962) Supp. 2 SCR 769 – followed.
1.7 The other offending provision referred to in the FIR is Section 501 IPC which is printing or engraving a matter which is defamatory to any person. As a matter of fact, the cognizance with respect to an offence punishable under Chapter XXI IPC (Section 501 IPC is part of said Chapter) can be taken by a Court only upon a complaint made by the person aggrieved. Without going into such technicalities, there is nothing defamatory in the statements made by the petitioner. Further, the statements of the petitioner would be covered by the second and third exceptions to Section 499 IPC. Thus, the instant proceedings, in so far as Section 501 IPC is concerned, also deserve to be quashed. [Para 45][1150-D-G]
Jawaharlal Darda and Others vs. Manoharrao
Ganpatrao Kapsikar and Another (1998) 4 SCC 112; Rajendra Kumar Sitaram Pande and Others vs. Uttam and Another (1999) 3 SCC 134 : [1999] 1 SCR 580; Vivek Goenka and Others vs. Y.R. Patil (2000) 9 SCC 87; S. Khushboo vs. Kanniammal and Another (2010)
5 SCC 600:[2010] 5 SCR 322 – relied on.
1.8 The other provision referred to in the FIR was s. 268 IPC which is nothing but the definition of “Public Nuisance” and is not a penal provision in itself which prescribes any punishment. It was also not the case of the respondent that any penal provision involving element of “Public Nuisance” was attracted in the instant case. Thus, all the offences set out in the FIR are not made out at all. [Paras 46, 47][1150-G; 1151-A-B]
1.9 As regard to the offences which were not spelt out in the FIR, it was contended by the respondents that in addition to the offences specifically set out in the FIR, the petitioner would also be guilty of the offences punishable under Sections 52 and
54 of the Disaster Management Act, 2005 and Section 188 IPC. According to the respondents, the statements made by the petitioner during the Talk Show amounted to circulating a false alarm and would therefore be covered by Section 54 of the Disaster Management Act, 2005; and that the petitioner would also be guilty of having violated communications dated 24.3.2020 and 28.3.2020 and thereby committed offences under Section 188 IPC. The technical issue need not be gone into whether the initiation of the proceedings in respect of the offences punishable under DM Act and/or under Section 188 IPC could only be after an appropriate complaint would be made in writing as submitted by the petitioner, as none of these offences as submitted by the respondents get attracted in the instant matter. The statements made by the petitioner were within the limits prescribed by the decision of this Court in Kedar Nath Singh’s case and that the statements were without any intent to incite people for creating public disorder. It was not even suggested that as a result of statements made by the petitioner any situation of panic had resulted in any part of the country. In the circumstances, without going into the technicalities whether the initiation of the proceedings could only be through a complaint filed in conformity with Section 60 of the Disaster Management Act, 2005 or Section
195 of the Code, the provisions of the Disaster Management Act, 2005 or Section 188 IPC are not attracted at all. [Paras 48, 51, 52][1151-B-D; 1152-C-D; 1153-A-C]
*Kedar Nath Singh vs. State of Bihar (1962) Supp. 2 SCR 769 – followed.
1.10 The second prayer made in the Writ Petition is asking for the constitution of the Committee completely outside the scope of the statutory framework. Similar such exercise of directing constitution of a Committee was found inconsistent with the statutory framework in the decisions discussed. The directions issued in Jacob Mathew’s case had received approval by a Constitution Bench in Lalita Kumari’s case, but those guidelines issued in Jacob Mathew’s case stand on parameter which are completely distinguishable from the subsequent decisions of three Judge Bench of this Court in Union of India vs. State of Maharashtra and Others and in Social Action Forum for Manav Adhikar and Another vs. Union of India, Ministry of Law and Justice and Others. Any relief granted in terms of second prayer would certainly amount to encroachment upon the field reserved for the legislature. Therefore, the prayer is rejected and the Writ Petition is dismissed to that extent. It must however be clarified that every Journalist would be entitled to protection in terms of Kedar Nath Singh’s case, as every prosecution under Sections 124A and 505 IPC must be in strict conformity with the scope and ambit of said Sections as explained in, and completely in tune with the law laid down in Kedar Nath Singh’s case. [Paras 66, 67][1176-F-H; 1177-A-C]
Jacob Mathew’s case v. State of Punjab and Another (2005) 6 SCC 1:[2005] 2 Suppl. SCR 307; Lalita Kumari’s case v. Government of Uttar Pradesh and Others (2014) 2 SCC 1:[2013] 14 SCR 713; Arnab Ranjan Goswami vs. Union of India and Others (2020)
14 SCC 12:[2020] (8) SCR 222; Arnab Ranjan
Goswami vs. Union of India and Others (2020) 14 SCC 51; State of H.P. vs. Pirthi Chand and Another (1996) 2 SCC 37:[1995] 6 Suppl. SCR 29; State of UP vs. OP Sharma (1996) 7 SCC 705:[1996] 2 SCR 236; Vijay Shekhar and Another vs. Union of India and Others (2004) 4 SCC 666; Rini Johar and Another vs. State of Madhya Pradesh and Others (2016) 11 SCC 703:[2016]
5 SCR 579; Monica Kumar and Another vs. State of Uttar Pradesh and Others (2017) 16 SCC 169:[2017]
8 SCR 550; Laxmibai Chandaragi B. and Another vs. State of Karnataka and Others (2021) 3 SCC 360; Ramji Lal Modi vs. State of U.P AIR (1957) SC 620:[1957] SCR 860; Daryao and others v. The State of U.P. and others [1962] 1 SCR 574; Union of India vs. Paul Manickam and Another (2003) 8 SCC 342:[2003] 4 Suppl. SCR 618; Kedar Nath Singh’s case v. State of Bihar Bangobashi case (Queen Empress v. Jogendra Chunder Bose (1892) I.L.R. 19 Cal. 35; Queen-Empress v. Balgangaddhar Tilak (1898) I.L.R. 22 Bom. 112; Balgangadhar Tilak vs. Queen Express, (1897) L.R.
25 I.A.I.; Niharendu Dutt Majumdar v. The King Emperor (1942) F.C.R. 38; King Emperor vs., Sadashiv Narayan Bhalerao 74 IA 89; Indian Express
Newspapers (Bombay) Private Ltd. & Ors. vs. Union of India & Ors (1985) 1 SCC 641:[1985] 2 SCR 287; S. Rangarajan v. P. Jagjivan Ram & Ors. 1989 (2) SCC 574:[1989] 2 SCR 204; The Superintendent, Central Prison, Fatehgarh and another v. Dr. Ram Manohar Lohia AIR 1960 SC 633:[1960] SCR 821; State of Haryana and Others vs. Bhajan Lal and Others (1992) Suppl 1 SCC 335:[1990] 3 Suppl. SCR 259; Manzar Sayeed Khan vs. State of Maharashtra and Another (2007) 5 SCC 1:[2007] 4 SCR 907; Patricia Mukhim vs. State of Meghalaya and Others 2021 SCC OnLine SC 258; Daulat Ram v. State of Punjab AIR 1962 SC 1206:[1962] Suppl. SCR 812; C. Muniappan and Others v. State of Tamil Nadu (2010) 9 SCC 567:[2010]
10 SCR 262; P. Sirajuddin’s Etc. vs. State of Madras, Etc. (1970) 1 SCC 595:[1970] 3 SCR 931; Union of India v. State of Maharashtra and others (2020) 4 SCC 761:[2019] 12 SCR 1125; Social Action Forum For Manav Adhikar and another v. Union of India, Ministry of Law and Justice and others (2018) 10 SCC
443:[2018] 12 SCR 19; Rajesh Sharma’s and others v. State of Uttar Pradesh and another (2018) 10 SCC 472:[2017] 9 SCR 529; Dr. Subhash Kashinath
Mahajan’s v. State of Maharashtra and another (2018)
6 SCC 454: [2018] 4 SCR 877 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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