On 24 April 2020, the Single Judge Bench of Hon’ble Mr Justice Ali Mohammad Magrey heard the case of Gowhar Nazir Shah Geelani v. The Union Territory of Jammu and Kashmir and others, over video-conferencing, wherein a petition was filed by Mr Gowhar Geelani seeking to quash the FIR registered against him for indulging in unlawful activities through social media posts, at the Cyber Police Station, Kashmir Zone.
Brief facts of the case:
The Jammu and Kashmir Police claimed that the Cyber Police had received information through reliable sources that “an individual namely Gowhar Geelani is indulging in unlawful activities through his posts and writings in social media platforms which are prejudicial to the national integrity, sovereignty and security of India.” He is the third journalist to be booked by the Police in two days. Thus, he filed a petition seeking to quash the FIR registered against him.
Mr Salih Pirzada, the learned counsel for the petitioner, argued that the Cyber Police Station has no jurisdiction to register and investigate cases relating to offences falling under the provisions of the Unlawful Activities (Prevention) Act, 1967 and Indian Penal Code. It was brought to the attention of the court that the cyber Police Station only had the jurisdiction to register and investigate cases regarding offences falling under Information technology Act, 2000 and other such allied offences in the aforementioned area. Therefore, he contended that the act of registering the FIR by Cyber Police Station was beyond the powers vested under Section 78 of the Information Technology Act, 2000.
The petitioner’s counsel also claimed that the details regarding the commission of the offence by the petitioner mentioned in the FIR do not disclose to be cognizable offence, based on which the FIR was registered.
He further mentions that under the Criminal Procedure Code, it is the duty of the Police officer in charge of registering the FIR to satisfy two conditions while disclosing cognizable offences-
- The Police Officer should have a reason to suspect the commission of a cognizable offence.
- He should subjectively satisfy himself as to whether there is sufficient ground for entering on an investigation.
Thus, according to the counsel, the information forming the basis of the complaint does not meet the requirements of Section 3 of Unlawful Activities (Prevention) Act, 1967.
The counsel, therefore, contends that the action of the Police in registering FIR against the journalist was based on the malice of law and there was no material to it and that his client was only performing his professional duties which are guaranteed under Article 19(1) (a) of the Constitution of India.
He further claimed that similar subject matter was heard and decided by the Kerala High Court in the case of Rajesh Vs State of Kerala, where the court quashed the FIR and held that the Cyber Police Station has no power to investigate the offence beyond the terms of provisions of Information Technology Act, 2000.
Mr B. A Dar, the learned Sr. AAG who is the counsel for the State here, claims that the petitioner and his counsel have not complied with the requirements of Standing Operation Procedure while dealing with urgent matters during the lockdown period due to the spread of COVID-19 since no copy of the petition was furnished to him by e-mail in advance and no consent was sought for the listing of the matter.
The learned Sr. AAG claims that the court has no power to interfere in the matter as it is beyond its powers exercised under Section 482 of the Criminal Procedure Code, on the threshold of judgment. It is further stated by the counsel that all grounds of challenge are vague and has no merit and that the merits of the case cannot be discussed or the petitioner cannot claim to quash the FIR as the matter has already been forwarded to the supervisory authority of Police and the Inspector General of Police, Kashmir, to be transferred to the Police Station, Sadder.
The State Counsel was not able to meet all grounds raised by the petitioner as the petition was not made available to him, thereby, the court directed the registry to provide him with a copy of petition and status report, the court further ordered the Union Territory administration to respond by May 20, that is before the next hearing. There was no interim relief granted to the petitioner.
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