Jammu and Kashmir High Court: Sanjay Dhar, J. accepted the petition of the political leader and accordingly granted him bail.
According to the case of the prosecution in the present case in June 2020, the Police received information from reliable sources that an audio clip containing objectionable conversation pertaining to the armed forces of the Country having reference to clashes between the Indian Army and armed forces of China that took place in Galwan Valley, had gone viral on social media. On the basis of this information, an FIR was registered and an investigation was set into motion. During the investigation of the case, an audio clip of 6.3 minutes duration was seized and it was found to contain a conversation between the petitioner/accused, Zakir Hussain, and co-accused Nissar Ahmad Khan. The conversation contained extremely objectionable expressions and sentences allegedly used by the petitioner against the Country, its leadership as well as against the Indian Armed Forces.
According to the petition filed by the petition who happened to be a democratically elected Councilor of LAHDC it was averred that he was taken into custody in June 2020 and due to some political enmity and animosity; some people tried to malign him which led to filing of an FIR against him. M.A Rathore, counsel for the petitioner vehemently contended that even if it was assumed that the petitioner had made the conversation and uploaded the same on the social media, still the offence under Section 124A and 153A of IPC could not be made out against the petitioner. Accordingly, in order to make out a case under Section 124A of IPC, it was absolutely necessary that the offensive remarks or speech should lead to some sort of violence or agitation from the public, which was not the case in the instant matter.
The Court referred to Supreme Court’s decision in the case of Balwant Singh v. State of Punjab (1995) 3 SCC 214, wherein it was held that a mere expression of derogatory or objectionable words may not be a sufficient ground for invoking the provisions contained in Sections 124A or 153A of IPC. Furthermore, the Court pointed out that the said provisions would apply only when the written or spoken words would have the tendency or intention of creating disorder or disturbance of public peace by resort to violence. Hence, the Court made it clear that it would be premature for it to comment on the question whether the alleged conversation made by the petitioner and uploaded on the social media would have the tendency of creating disorder or disturbance of public peace by resort to violence. Nevertheless, the pertinent question should be considered by the trial court while framing charge against the petitioner.
The court before finally reaching its verdict also emphasised on the fact that the petitioner was not alleged to have committed an offence which carried capital punishment under the rigor of Section 437(1)(i) of the Code of Criminal Procedure. Furthermore, the Court while granting bail also pointed out that Apart from the Case Diary showed that immediately after the commission of alleged offence by the petitioner, he published a public apology and expressed his regrets.[Zakir Hussain v. UT of Ladakh, 2020 SCC OnLine J&K 490, decided on 24-09-2020]
