Tuesday, March 19, 2024

Supreme Court disapproves of High Court's dismissal of criminal writ petition against questionable FIR, quashes FIR

On March 19, 2024, Supreme Court's bench of Justices B.R. Gavai and Sandeep Mehta concluded that FIR bearing No. 31 of 2020 against Shiv Prasad Semwal, the appellant is nothing but gross abuse of process of law because the allegations as set out in the FIR do not disclose necessary ingredients of any cognizable offence. Hence, the impugned FIR and all proceedings sought to be taken against the appellant are hereby quashed and set aside." The judgement was delivered in Shiv Prasad Semwal v. State of Uttarakhand (2024). It tantamounts to disapproval of the order dated January 20, July, 2020 passed by the Single Judge of High Court of Uttarakhand whereby it had dismissed the Criminal Writ Petition No. 881 of 2020 preferred by the appellant for assailing FIR registered for the offences punishable under Sections 153A, 500, 501, 504, 34 and 120B of the Indian Penal Code, 1860 (IPC) at P.S. Muni Ki Reti, District Tehri Garhwal. 

The appellant submitted that the allegations made in the FIR did not disclose commission of any cognizable offence. But the High Court dismissed the criminal writ petition filed by the appellant which was challenged in the appeal before the Supreme Court. The appellant's counsel urged that admitted allegations as set out in the FIR do not disclose the necessary ingredients constituting the offences under Sections 153A, 504 read with Sections 34 and 120B IPC and hence, the continued investigation of the impugned FIR is nothing short of gross abuse of process of law. He contended that the words ‘spoken’ or ‘written’ attributed to the accused were not such which promoted or attempted to promote on the grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religions, racial, language or regional groups or castes or communities, or committed any act which is prejudicial to maintenance of harmony between different religions, racial, language or regional groups or castes or communities, andwhich disturbed or was likely to disturb the public tranquillity. It was submitted that there is no communal, caste, religion, race or place of birth based imputation in the news article published on the online news portal of Parvatjan. Thus, ingredients of the offence punishable under Section 153A IPC are not made out from the FIR.

The Court has noted that the entire case as set out in the impugned FIR is based on the allegation that the Facebook news post uploaded by Gunanand Jakhmola, one journalist was caused to be published on Parvatjan news portal being operated by the appellant. It observed that "Upon careful perusal of the offending news article, reproduced (supra), it is crystal clear that there is no reference to any group or groups of people in the said article."

In the case of Manzar Sayeed Khan v. State of Maharashtra (2007), the Supreme Court had held that for applying Section 153A IPC, the presence of two or more groups or communities is essential, whereas in the present case, no such groups or communities were referred to in the news article. The Court relied on  this 2007 verdict. 

The Court examined the rationale behind application of Section 504 IPC by the investigating agency. This offence can be invoked when the insult of a person provokes him to break public peace or to commit any other offence. It found that there is no such allegation in the FIR that owing to the alleged offensive post attributable to the appellant, the complainant was provoked to such an extent that he could indulge in disturbing the public peace or commit any other offence. It inferred that "the FIR lacks the necessary ingredients of the said offence as well. Since we have found that the foundational facts essential for constituting the substantive offences under Sections 153A and 504 IPC are not available from the admitted allegations of prosecution, the allegations qua the subsidiary offences under Sections 34 and 120B IPC would also be non est."

In State of Haryana v. Bhajan Lal (1992), the Supreme Court has held the following:
“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

Drawing on Supreme Court's judgement in State of Haryana v. Bhajan Lal, the Court examined the principles governing the scope of exercise of powers by the High Court in a petition under Article 226 of the Constitution of India and under Section 482 CrPC seeking quashing of criminal proceedings, Justice Gavai led bench reached its own conclusion.

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