SUPREME COURT QUASHES FIR REGISTERED AGAINST APPELLANT, AS PROSECUTION FAILED TO ESTABLISH THAT THE APPELLANT’S NEWS ARTICLE WAS DEFAMATORY AND PROVOKED ENMITY BETWEEN GROUPS

A two Judge Bench of the Supreme Court comprising of Justice B R Gavai and Justice Sandeep Mehta passed a Judgment dated 19-03-2024 in the matter of Shiv Prasad Semwal Vs State of Uttarakhand and Others, Criminal Appeal No. 001708 of 2024 arising out of SLP (Crl.) No. 3687 of 2020, and held that the essential constituents of offences under Sections 153 A of the Indian Penal Code, 1860 (IPC) (Promoting enmity between different groups on grounds of religion, race, place of birth, residence. language, etc., and doing acts prejudicial to maintenance of harmony) and 504 IPC (Intentional insult with intent to provoke breach of the peace) i.e. offences related to publication of defamatory statements that provoke enmity between different groups of people, have not been established against the Appellant-Accused.

Facts

i) In the present case, one, Shri Rajeev Savara (the Complainant- Respondent No. 3 herein) had formed a trust called Savara Foundation and was the Founder and Chairman of the Board of Trustees. He also claimed to be an expert of Indian art. The Complainant had planned a foundation stone laying ceremony of ‘Matra Ashraya- a collection museum’ on his land admeasuring 1.196 hectares (approximately 15.94 bighas) situated on National Highway No. 7 at village Singthali, Tehsil Narendra Nagar, District Tehri Garhwal, Uttarakhand on 20-03-2020. The foundation stone laying was to be done by the then Chief Minister of Uttarakhand, Mr. Trivendra Singh Rawat, in the presence of Juna Peethadheeshwar Acharya Mahamandaleshwar Swami Avdheshanand Ji Maharaj.

ii) But as per the Complainant, the Accused- Shiv Prasad Semwal, got a news article published in his e-newspaper ‘Parvatjan’, edition on 17-03-2020, stating that the land on which the foundation stone was proposed to be laid, was in fact a Government land, which had been unlawfully occupied / encroached upon by the Complainant. Further, that the said art museum had no concern with the well-being of the people living in the mountains in Uttarakhand.

iii) Aggrieved, the Complainant filed a Complaint with the SHO P.S. Muni Ki Reti, District Tehri Garhwal against the Accused, alleging that such mischievous and malicious article was published in the Appellant’s newspaper without undertaking proper fact-finding exercise and that the same was done to tarnish the reputation of the Complainant in the public, to damage his goodwill and standing in the society and to incite breach of peace.

iv) Hence, the Police registered an FIR No. 31 of 2020 for the offences punishable under Sections 153A of the Indian Penal Code, 1860 (IPC) (Promoting enmity between different groups on grounds of religion, race, place of birth, residence. language, etc., and doing acts prejudicial to maintenance of harmony), 500 IPC (Punishment for defamation), 501 IPC (Printing or engraving matter known to be defamatory), 504 IPC (Intentional insult with intent to provoke breach of the peace), 34 IPC (Acts done by several persons in furtherance of common intention) and 120B of IPC (Punishment of criminal conspiracy).

v) Aggrieved, the Appellant-Accused filed a Criminal Writ Petition No. 881 of 2020 in the High Court of Uttarakhand, thereby, challenging the FIR on the ground that the FIR did not disclose commission of any cognizable offence. The Appellant further averred that:

“.. the news article which had been published in the e-newspaper Parvatjan of which the appellant herein was the Director, was entirely based on the Facebook post of a journalist named Gunanand Jakhmola and as such, the appellant herein was not liable to face prosecution for the said publication.”

vi) But the High Court, vide Order dated 20-07-2020, dismissed the Writ Petition filed by the Appellant-Accused.

Supreme Court Observations

Aggrieved by the High Court Order dated 20-07-2020, the Appellant-Accused filed SLP (Crl.) No. 3687 of 2020 before the Supreme Court, which was registered as Criminal Appeal No. 001708 of 2024. The Apex Court, vide Order dated 19-03-2024, made the following observations regarding the issue whether the contents of the news report constitute any cognizable offence that would justify the investigation into the allegations made in the FIR against the Appellant-Accused:

1) That in order to constitute an offence under Section 153A IPC, it has to be established by the prosecution that (i) the words ‘spoken’ or ‘written’ attributed to the accused, (ii) the accused’s actions created enmity or bad blood between different groups on the ground of religion, race, place of birth, residence, language, etc., or (iii) such acts were prejudicial to the maintenance of harmony.

2) However, in this case, the news article was published by the Appellant completely based on a Facebook post published by a journalist named Gunanand Jakhmola on 17-03-2020, which had no reference to any group(s), but solely focused on the Complainant imputing that he had encroached upon Government land, where the foundation stone laying ceremony was proposed at the hands of Hon’ble Chief Minister of Uttarakhand. Further, that such ceremony or art museum had no concern with the well-being of the people living in the mountains.

3) That the Bench observed that (i) firstly, the lines written in the news article were not attributed to the Appellant-Accused, as it was taken from the journalist’s post, (ii) secondly, the ‘words’ in the said post / news article did not in any manner create a sense of enmity and disharmony amongst people of hill community and the people of plains. In fact, the lines in the said post only referred to the Complainant, imputing that his activities were prejudicial to the hills.

4) Hence, the essential ingredient required to constitute an offence under Section 153A of IPC i.e. the presence of two or more groups or communities and that the words or lines in the article / post created enmity between such different groups of people, has not been satisfied in the present case.

5) Further, the Bench held that the offence under Section 504 IPC can be invoked when the insult of a person provokes him to break public peace or to commit any other offence. However, in the present case, there is no allegation in the FIR stating that owing to the news article published by the Appellant-Accused, the Complainant was provoked to such an extent that he could indulge in disturbing the public peace or commit any other offence.

6) Thus, the foundational requirement to constitute an offence under Section 504 IPC i.e. provocation to commit an offence owing to an insult or defamatory statement, has also not been established against the Appellant-Accused in the present case.

Conclusion

Therefore, based on the aforesaid observations, the Supreme Court held that as the essential requirements to constitute offences under Sections 153 A and 504 IPC have not been established against the Appellant-Accused, hence, the allegations qua the subsidiary offences under Sections 34 and 120B IPC would also be non-est i.e. non-existent.

Further, the Apex Court held that the High Court ought to have quashed the FIR registered against the Appellant-Accused, as the allegations made in the FIR did not prima facie constitute any offence or disclose any cognizable offence against the Accused.

Hence, the Appeal filed by the Appellant-Accused was allowed and the FIR and all proceedings sought to be taken against the Appellant thereunder, were quashed and set aside by the Supreme Court.

 

Hannah Marshall

Senior Associate

Hansen International Law Firm