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SC Quashed FIR against Vinod Dua: Petitioner was within permissible limits laid in Kedar Nath Singh

It must however be clarified that every Journalist will be entitled to protection in terms of Kedar Nath Singh, as every prosecution under Sections 124A and 505 of the 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. (Para. 67)

Vinod Dua v. Union of India & Ors.

Criminal Original Jurisdiction Writ Petition (CRL.) No.154 of 2020

3rd June 2021

The Divisional Bench of Supreme Court consisting of Justice Uday Umesh Lalit and Justice Vineet Saran allowed the writ petition filed under Article 32 of the Constitution of India.

On 30th March 2020, Mr. Vinod Dua, in his show namely The Vinod Dua Show on YouTube, has made unfounded and bizarre allegations by stating following facts at 5 minutes and 9 seconds of the video, he has stated that Narendra Modi has used deaths and terror attacks to garner votes. At 5 minutes and 45 seconds of the video, he claims that the government does not have enough testing facilities and has made false statements about the availability of the Personal Protective Kits (PPE) and has stated that there is no sufficient information on those. Further, he also went on to state that ventilators and sanitizer exports were stopped only on 24th March 2020.

The FIR dated 06.05.2020 thus pointedly referred to two segments in the talk show uploaded on 30.03.2020 – one at 5 minutes 9 seconds and the other at 5 minutes 45 seconds and generally dealt with the drift of the assertions made by the petitioner in said talk show to submit that the actions on part of the petitioner amounted to offences punishable under Sections 124-A, 268, 501 and 505 of the Indian Penal Code, 1860 (IPC).

This petition under Article 32 of the Constitution of India prays for following principal reliefs:-

a) Quash FIR No.0053 dated 06.05.2020 registered at Police Station Kumarsain, District Shimla, Himachal Pradesh.

b) Direct that henceforth FIRs against persons belonging to the media with at least 10 years standing be not registered unless cleared by a committee to be constituted by every State Government, the composition of which should comprise of the Chief Justice of the High Court or a Judge designated by him, the leader of the Opposition and the Home Minister of the State.”

Mr. Vikas Singh learned Senior counsel appearing from the petitioner side contended that (i) The statements in the FIR that, “Hon’ble Prime Minister used threats and terror acts to garner votes”; and “Prime Minister garnered votes through act of terrorism” were factually incorrect. No such assertions were made by the petitioner (ii) The basic allegations in the FIR were required to be seen in the light of the law laid down by this Court in Kedar Nath Singh vs. State of Bihar and subsequent cases. Viewed thus, the provisions of Section 124A of the IPC would not get attracted at all (iii) As a journalist, the petitioner was entitled to and did nothing more than critical analysis of the functioning of the Government (iv) The ingredients constituting offences under Sections 501 and 505 of the IPC were also not established (v) Consequently, the criminal proceedings initiated against the petitioner being abuse of the process and being violative of the fundamental rights guaranteed under the Constitution of India, the same be quashed.

Further, in support of the second prayer it has been submitted that: In Jacob Mathew v. State of Punjab and Another, this Court issued certain guidelines with regard to prosecution of Medical Professionals accused of rashness or negligence while discharging their professional duties; which decision was not only affirmed by the Constitution Bench of this Court in Lalita Kumari v. Government of Uttar Pradesh and Others but this Court went on to explain that a preliminary inquiry could validly be insisted upon in certain categories of cases. The case of journalists as a category be considered on similar lines, so that the journalists can, without any hindrance or fear of unwarranted prosecution fulfil their duties. The protection suggested in the second prayer would afford and ensure protection against such unwarranted prosecutions.

Mr. Tushar Mehta learned Solicitor General of India appeared for State of Himachal Pradesh and submitted that (i) The instant petition under Article 32 of the Constitution of India, seeking quashing of the FIR may not be entertained and the petitioner be relegated to remedies available under the Code (ii) At the present stage, the allegations made in the FIR were required to be presumed to be true and the matter be allowed to be investigated into (iii) The attempts on part of the petitioner were to spread misinformation or incorrect information and cause panic in the perception of the general public; for example, the statement that some people feared that there could be food riots post lockdown was without any basis and had clear potential of spreading panic. Such action would be covered and be punishable under Sections 52 and 54 of the DM Act (iv) Whether such statements were deliberate or unintended and innocent assertions, would be a matter for investigation and as such no case was made out for interference at the present stage (v) The episode in question was uploaded on 30.03.2020 and migrant workers in many metropolitan cities and towns had started walking towards their hometowns seriously jeopardizing their own health and safety and that of the society in general.

In response to the second prayer, it was submitted by the Solicitor General that the direction as prayed for, if granted would result in overstepping the field and area reserved for the Legislature. Any preliminary inquiry as suggested by the petitioner, would be clearly opposed to law and not sanctioned or permitted by law.

Mr. S.V. Raju, learned Additional Solicitor General who appeared for Union of India, submitted that (i) The matter would additionally come under Section 188 read with Section 511 of the IPC as the statements made by the petitioner were in the nature of incitement to disobey the orders passed by the concerned authorities pursuant to lockdown including the order dated 31.03.20207 passed by this Court (ii) The bar under Section 195 of the Code with respect to cases falling under Section 188 of the IPC would be relatable to the stage of cognizance by Court and not to anterior stages and as such the matter be allowed to be investigated into.

Mr. Mahesh Jethamalani and Mr. Vinay Navre, learned Senior Advocates for respondent No.3 reiterated the submissions on behalf of the State and the Union and submitted that the severity and magnitude of the pandemic called for strict adherence to the journalistic standards and observance of restraint; that it was the fake and inaccurate reporting that triggered the migration of workers; that the petitioner definitely intended to disrupt the public order and that his intention was apparent from statements that there could be food shortage resulting in food riots. In the written submissions filed by respondent No.3, the Order dated 24.03.2020 and Guidelines dated 28.03.2020 were highlighted and relied upon to submit that by spreading false information regarding shortage of food, medical and other essential services, the petitioner had contravened the Order dated 24.03.2020 and Guidelines dated 28.03.2020 and thereby committed offences punishable under Sections 188, 153, 124A and 503(b) of the IPC .

In rejoinder, Mr. Singh repelled the arguments advanced by the respondents and the essence of his contentions as found in the written submissions was that (i) The petitioner did his duty to bring forth the dispassionate and critical appraisal of the Government. His actions were fully covered by Explanations 2 and 3 of Section 124A, IPC and exception to Section 505 IPC and were within his Right of Free Speech and Expression guaranteed under Article 19 (1)(a) of the Constitution (ii) The complainant along with the State brought down their case from Section 124-A and Section 505 to Section 188 IPC in their attempt to show that some cognizable offence was committed by the petitioner. The allegation that the petitioner disobeyed the order dated 31.03.20207 passed by this Court was rather absurd as the telecast was issued prior to the directions of this Court (iii) The offences under the DM Act and Section 188 of the IPC were not made out and, in any case, in the absence of a complaint in terms of Section 60 of the DM Act and Section 195 of the Code, the submissions made by the respondents called for rejection.

After hearing the contentions of the parties’ court raised an issue that:

Whether the instant challenge raised through a petition under Article 32 of the Constitution and the prayers made in the petition can be entertained and considered specially when the investigation into the alleged crime has not yet resulted in a report under Section 173 of the Code?

In this regard court considered principles emanating from various related judgements and stated that:

Apart from the fact that the right claimed by the petitioner is one under Article 19 (1) (a) of the Constitution, which was in the forefront in Romesh Thappar, Priya Prakash Varrier, Jagisha Arora and Amish Devgan in our view, 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, we do not accept the preliminary objection raised by the respondents and we proceed to deal with the merits and consider the matter with respect to both the prayers. (Para 25)

After scrutinizing the contents of the Talk Show and in light principles emanating from the decision in the case of Kedar Nath Singh, court believes that the statements by the petitioner 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.

We are, therefore, of the firm view that the prosecution of the petitioner for the offences punishable under Sections 124A and 505 (1) (b) of the 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 44)

Further, 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 Section 52 and 54 of the DM Act and Section 188 of the IPC. After hearing contentions of both the parties in this regard court stated that:

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 DM Act or Section 195 of the Code, in our view, the provisions of the DM Act or Section 188 of the IPC are not attracted at all. (Para 52)

In Conclusion:

i. We quash FIR No.0053 dated 6.5.2020, registered at Police Station Kumarsain, Distt. Shimla, Himachal Pradesh, against the petitioner.

ii. but reject 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. (Para 68)

Subsequently, the Writ Petition is allowed to the aforesaid extent.

View/Download Judgment: Vinod Dua v. Union of India & Ors.

Swadheen Singh