Abdul Bari Naik vs State Of J&K & Others
2022 Latest Caselaw 1380 j&K/2

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR

                                                    Reserved on: 22.08.2022
                                                    Pronounced on:29.08.2022


                           CRMC No.464/2018


ABDUL BARI NAIK                                      ... PETITIONER(S)
                    Through: - Mr. P. S. Ahmad, Advocate.

Vs.

STATE OF J&K & OTHERS                              ...RESPONDENT(S)
                    Through: - Mr. Usman Gani, GA.


CORAM:       HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                JUDGMENT

1) The petitioner has challenged FIR No.191/2018 for offence under

Sections 153, 353 and 13 ULA(P) Act registered with Police Station,

Kulgam.

2) It is averred in the petition that the petitioner is working as Assistant

Professor, Geography, at Government Degree College, Kulgam, and he

has undergone Ph. D course in Geography in Aligarh Muslim University.

It is further averred that the petitioner is an RTI activist and has filed many

RTI applications for advancing the interests of the society so that public

funds are utilized in a better manner. It is averred that at the time of

appointment of the petitioner as an Assistant Professor, a verification

report was furnished by the police stating therein that there is nothing

adverse against the petitioner. He goes on to submit that in January, 2017,

he had filed a writ petition before this Court calling into question the

illegal extraction of minerals wherein an interim direction was passed by

this Court and as a consequence of this, District Magistrate, Kulgam,

asked Principal, Government Degree College, Kulgam, to enquire into the

activities of the petitioner. A report was submitted by the Committee of

Professors vide communication No.DMK/Verification/2017-2018/367

dated 08.09.2017, wherein it was reported that nothing adverse has been

found against the petitioner. It is averred that the petitioner was thereafter

transferred to Government Degree College, Ganderbal, and the said order

was challenged by him by way of a writ petition before this Court and an

interim order came to be passed in his favour in the said writ petition. It is

further averred in the petition that the petitioner filed an RTI application

seeking information regarding recruitment of Rahbar-e-Khel in the year

2018. According to the petitioner, all the aforesaid activities irked the

respondents, as a consequence whereof, the impugned FIR came to be

lodged against him.

3) The petitioner has challenged the impugned FIR on the grounds that

the contents of the same are false and that no offence is made out against

him even if the same are accepted at their face value. It has been further

contended that the action of the respondents in registering the impugned

FIR smacks of malafides and vengeance.

4) The respondents have resisted the petition by filing a reply thereto.

In their reply, the respondents have submitted that the petitioner is

indulging in criminal activities and he is misusing and abusing the

freedom of expression by taking aid of social media. According to

respondents, the activities of the petitioner have the effect of motivating

the students of the college to disrupt peace and tranquility in the area as

he is provoking them to indulge in violence against the State

Administration. It has been submitted that the petitioner, in order to gain

cheap popularity within the area, is using illegal means to prevent the

district administration from discharging their lawful activities. It is

submitted that the impugned FIR has been registered on the basis of

credible reports in respect of the petitioner which clearly disclose

commission of cognizable offences against him. It has been contended

that the petitioner is motivating the public with the ideology of extremist

groups and he is indulging in a vilifying campaign against the district

administration and the security forces. According to the respondents, the

petitioner has committed activities which attract the provisions contained

in Sections 153 and 353 of RPC and Section 13 of ULA(P) Act.

5) I have heard learned counsel for the parties and perused the record

including the Case Diary.

6) Learned counsel for the petitioner has contended that the contents

of the impugned FIR do not make out any offence against the petitioner.

It has been submitted that even if the contents of the impugned FIR are

accepted at their face value, still then at best it may amount to violation of

Civil Service Rules on the part of the petitioner and in no case, it would

amount to disclosure of a criminal offence against the petitioner. Learned

counsel has contended that the petitioner is alleged to have uploaded

certain video clips on social media and these video clips pertain to

criticism of functioning of the district administration and the same, in no

way, constitute offences under Section 153 of RPC or under Section 13 of

ULA(P) Act.

7) Upon perusal of the Case Diary, it is revealed that after registration

of the impugned FIR, the respondents have recorded statements of the

witnesses under Section 161 of the Cr. P. C and they have also seized the

video clips which are alleged to have been uploaded by the petitioner on

YouTube. As per the investigation conducted by the investigating agency,

the petitioner is trying to motivate the common people towards separatism

and he is provoking them against the police and security forces as also

against district administration. As per the investigation conducted by the

investigating agency, the petitioner is shown to be sympathetic towards

the people who are involved in unlawful and terrorist activities and he is

provoking common people against the establishment of army camps.

8) To support the aforesaid conclusions arrived at during the

investigation of the case, the respondents have recorded the statements of

witnesses under Section 161 of the Cr. P. C and they have also seized the

video clips which are alleged to have been uploaded by the petitioner on

the social media. Upon watching the video clips seized during the

investigation of the case, it appears that the petitioner is conveying to the

audience that Kashmiri students are being lynched and brutally tortured in

other parts of the country. In one of the video clips, the petitioner is seen

conveying to his audience that the children of Kashmir are being

oppressed by the security forces and the army. In yet another video clip,

the petitioner is conveying that the army is hampering the movement of

the people and it is obstructing the children from going to schools which

has led to closure of schools. In yet another video clip, the petitioner is

seen pleading cause relating to release of a person who was in custody for

indulging in stone pelting and terrorist activities.

9) There are certain other video clips allegedly uploaded by the

petitioner but in those video clips, the petitioner is seen only criticizing

the functioning of the District Administration, the Police Department and

the Revenue Department.

10) The material collected by the investigating agency during the

investigation of the case clearly suggests that the petitioner is provoking

or at least intending to provoke his audience to use force or violence

against the institutions like the army, the police and the civil

administration. The video clips also, prima facie, show that the petitioner

is trying to promote enmity between the people living in Kashmir and

those living in other parts of the country. Thus, it cannot be stated that the

material on record does not disclose commission of any cognizable

offence against the petitioner. As to what offences are exactly established

or made out against the petitioner would be known only after the

investigation is completed by the respondents and final report is laid

before the competent court but at this stage of the investigation, it can

safely be stated that the material collected by the investigating agency so

far, does disclose commission of cognizable offences against the

petitioner.

11) The Supreme Court in the case of Neeharika Infrastructure Pvt. Ltd.

vs. State of Maharashtra and others, 2021 SCC Online SC 315, has clearly

laid down that the High Court should exercise its powers under Section

482 of the Cr. P. C to quash the investigation in an FIR in exceptional

circumstances because it is the statutory duty of an investigating agency

to take the investigation into an FIR to its logical conclusion.

12) Having regard to the nature of material supporting the allegations

contained in the impugned FIR, the prosecution against the petitioner

appears to be genuine. Thus, the instant case does not fall into the category

of cases in which this Court would exercise its powers under Section 482

of the Cr. P. C to quash the proceedings in the impugned FIR. Quashing

the proceedings in the instant case would amount to stifling a genuine

prosecution which is impermissible in law.

13) For the forgoing reasons, there is no merit in this petition. The same

is, accordingly, dismissed.

14) Case Diary be returned to the learned counsel for the respondents.

(SANJAY DHAR) JUDGE

Srinagar, 29.08.2022 "Bhat Altaf, PS"

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No