'No Proof He Is A Journalist': J-K HC, While Dismissing Plea Against COVID-Era FIR

Srinagar: The High Court of Jammu, Kashmir and Ladakh on Monday dismissed a petition seeking to quash an FIR registered during the COVID-19 lockdown. The High Court held that the plea was premature and that disputed facts must be examined during trial.

Justice Shahzad Azeem, while rejecting the petition filed by Mushtaq Ahmad Ganie at Srinagar, said the inherent powers of the court under Section 482 of the Criminal Procedure Code cannot be exercised liberally.

"Jurisdiction under Section 482 CrPC cannot be liberally exercised. It has to be sparingly exercised, in cases where there is a dire need of exercise of this power,” the court said in its seven-page judgement.

The FIR, registered in April 2020 at Sumbal police station in Bandipora, accuses the petitioner and others of violating restrictions imposed under Section 144 CrPC during the pandemic, and assaulting police personnel. The charges include offences under sections 188, 269 and 353 of the Indian Penal Code (IPC).

According to the prosecution, the petitioner was found moving in a vehicle during strict lockdown restrictions and failed to provide a satisfactory explanation. It is also alleged that he assaulted a police party during questioning.

The petitioner claimed he is a journalist, and was returning home at the time of the incident. He alleged that "he was intercepted by the naka (checkpoint) party, who harassed him for no reason, and registered an FIR against him".

However, the court found no material on record to support his claim. "There is nothing on record to substantiate either that he is a journalist or that he, at the relevant point of time, was permitted to perform his duty as such, despite imposition of restrictions under Section 144 CrPC," the court observed.

The petitioner also argued that the case violated Section 195 CrPC and provisions of the Disaster Management Act, 2005, contending that no cognisance could be taken without a complaint by a competent authority.

Rejecting this contention, the court said such objections cannot be raised at a pre-cognisance stage. “The petitioner has approached this Court prematurely, at the pre-cognisance stage. Therefore, the question whether there is any violation of Section 195 CrPC is wholly far-fetched, being ipse dixit of the petitioner,” the judge said.

The court further noted that a complaint had already been filed by the District Magistrate in compliance with Section 195 CrPC, and that there is no bar on registration or investigation of an FIR. “There is neither any bar nor any prohibition in registration of FIR and investigation of the case, but only on completion of investigation, will the embargo in Section 195 CrPC come into play,” the court said.

Justice Azeem emphasised that issues raised by the petitioner, including alleged procedural violations, can be addressed during the stage of framing of charges or discharge before the trial court. “This Court in exercise of powers under Section 482 CrPC is not required to and, in fact, cannot enter into the factual assertions made by the petitioner, as the same would necessitate appreciation of evidence, a function which is exclusively reserved for the trial Court,” the judgment said.

Dismissing the petition, the court held that no case for interference was made out and directed that the trial proceed without delay. “Let the trial Court record be transmitted forthwith and the trial Court shall commence the trial without further delay,” the court ordered.

The court also clarified that its observations were limited to deciding the petition and should not influence the trial on merits.