No fetters can be placed on freedom of press by registering FIR against reporter,who was publishing news obtained from identifiable source : Jammu & Kashmir HC

Read judgment: Asif Iqbal Naik vs. State of Jammu & Kashmir and Ors

Pankaj Bajpai

Srinagar, September 1,2021:The Jammu & Kashmir High Court has held  that no fetters can be placed on the freedom of press by registering an FIR against a reporter, who was performing his professional duty by publishing a news item on the basis of information obtained by him from an identifiable source.

The Single Bench of Justice Rajnesh Oswal observed that mere fact that the FIR was lodged only against the journalist and not against the person, who had disclosed the said incident to the journalist prima facie, established malice on the part of the respondent police officials.

“The mens rea is an essential ingredient of offence u/s 505 IPC and as section 505 IPC provides a reasonable restriction on the fundamental right to freedom of speech and expression, therefore, the same is required to be strictly construed. The intention to generate the consequences as contained u/s 505 IPC must be forthcoming from the plain reading of the statement/report or rumour and should not be left at the discretion of a particular person”, observed Justice Oswal.

The dispute arose when the petitioner (a reputed journalist) had published a story in the Newspaper “Early Times” in 2018 bearing the heading, “Father of 5 brutally tortured by Kishtwar Police”. The respondents got furious and approached the Deputy Commissioner. Later, an FIR u/s 500, 504 and 505 of the IPC was registered by the Kishtwar Police without conducting any preliminary enquiry.

The petitioner has challenged the FIR on the ground that it was lodged to harass the petitioner so as to stop him from publishing any news item against the Police establishment and to gag the press and electronic media, which amounts to infringement of right of free speech and expression as guaranteed under the Article 19 of the Constitution.

The High Court therefore found that prima facie there was nothing in the FIR that the petitioner had desired to generate the consequences as claimed by the respondents,rather he had performed his professional duty.

The Court also opined that the publication of the news item on the basis of statement made by the cousin and brother of Akhter Hussain, did not amount to offence u/s 499 IPC as the petitioner had been performing his professional duty of reporting the matter. More so, when the complaint was too filed against some of the respondents by the brother of the said Akhter Hussain narrating the similar story.

The exception to section 505 IPC clearly provides that it does not amount to an offence within the meaning of this section when a person making, publishing or circulating such report, rumour or report has reasonable grounds for believing that such statement, rumor or report is true and make publishes or circulates in good faith and without any such intent, opined Justice Oswal.

Even if, for the sake of arguments the offence is made out against the petitioner, still his case would fall within the exception as well, as he published what was narrated by kin of Akhter Hussain, added the High Court.

Justice Oswal further noted that the mode and manner in which the FIR has been lodged clearly reflects the mala fide on the part of respondents as they could have given their version by similar mode but they chose unique method of silencing the petitioner and it is undoubtedly an attack on the freedom of press.

Hence, the High Court quashed the FIR registered by Kishtwar Police Station, for commission of offences u/s 500, 504 & 505 of the IPC.