Supreme Court: In glaring cases of deprivation of liberty, the petition under Article 32 of the Constitution for Quashing of FIR can be entertained

The SC on June 03, 2021 {VINOD DUA vs. UNION OF INDIA & ORS.} held that the practice of directing that the High Court be approached first even in cases of violation of fundamental rights, is more of a self imposed discipline by this Court; but in glaring cases of deprivation of liberty, this Court has entertained petitions under Article 32 of the Constitution. 

It was also held by the Bench, comprising of Justice Uday Umesh Lalit and Justice Vineet Saran that under Sections 124-A and 505 of the IPC, according to the Court only such activities which would be intended or have a tendency to create disorder or disturbance of public peace by resort to violence – are rendered penal. It was held that apart from the fact that the right claimed by the petitioner is one under Article 19 (1) (a) of the Constitution of India and the second prayer made by the petitioner can effectively be considered only in a writ petition. It was held that 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.

It was held by the SC that a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder; and that it is only when the words or expressions have pernicious tendency or intention of creating public disorder or disturbance of law and order that Sections 124A and 505 of the IPC must step in.

The SC held that the statements by the petitioner, if read in the light of the principles emanating from the decision in Kedar Nath Singh vs. State of Bihar, (1962) Supp. 2 SCR 769 and against the backdrop of the circumstances when they were made, 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. It was held that 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. It was held that the petitioner was within the permissible limits laid down in the decision of this Court in Kedar Nath Singh (Supra). It was also held that it may be that certain factual details in the 3rd statement regarding the date when the ban came into effect were not completely correct. However, considering the drift of the entire talk show and all the statements put together it cannot be said that the petitioner crossed the limits set out in the decision of this Court in Kedar Nath Singh (Supra).

It was held that, therefore, the SC is 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.Thus, it was held that all the offences set out in the FIR are not made out at all.

In Jacob Mathew v. State of Punjab and Another, (2005) 6 SCC 1, the SC earlier held:

"......A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test to the facts collected in the investigation..."

In Jacob Mathew (Supra), the guidelines were issued by the SC after noticing Section 88 of the IPC falling in Chapter titled “General Exceptions” as well as illustrations below Sections 88, 92, and 93 of the IPC. It was held by the SC that the direction, “a private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness and negligence on the part of the accused doctor” was founded on reasons including the status of a medical professional acknowledged by Section 88 and that the investigating officers and the private complainant would not be supposed to be having knowledge about medical science so as to determine whether the act of the accused professional amounted to a rash and negligent act.

The SC held that second prayer made in the Writ Petition is asking for the constitution of the Committee completely outside the scope of the statutory framework. It was held that such exercise of directing constitution of a Committee was found inconsistent with the statutory framework in the subsequent decisions of three Judge Bench of this Court in Union of India vs. State of Maharashtra and Others, (2020) 4 SCC 761 and in Social Action Forum for manav Adhikar and Another vs. Union of India, Ministry of Law and Justice and Others, (2018) 10 SCC 443. It was therefore held by the SC that any relief granted in terms of second prayer in present Writ Petition would certainly amount to encroachment upon the field reserved for the legislature. 

The SC, therefore, quashed FIR No.0053 dated 6.5.2020, registered at Police Station Kumarsain, Distt. Shimla, Himachal Pradesh, against the petitioner. But rejected 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.