Shiv Prasad Semwal vs The State Of Uttarakhand

2024 INSC 220 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). OF 2024 (Arising out of SLP(Crl.) No(s). 3687 of 2020)

SHIV PRASAD SEMWAL .….APPELLANT(S)

VERSUS

STATE OF UTTARAKHAND AND OTHERS …..RESPONDENT(S)

JUDGMENT

Mehta, J.

1. Leave granted.

2. The appellant herein calls into question the order dated 20th

July, 2020 passed by the learned Single Judge of High Court of

Uttarakhand whereby Criminal Writ Petition No. 881 of 2020

preferred by the appellant for assailing FIR No. 31 of 2020

registered for the offences punishable under Sections 153A, 500,

501, 504, 34 and 120B of the Indian Penal Code, 1860(hereinafter Signature Not Verified Digitally signed by Deepak Singh

being referred to as the ‘IPC’) at P.S. Muni Ki Reti, District Tehri Date: 2024.03.19 15:55:42 IST Reason:

Garhwal was dismissed.

1 3. Shorn of details, the facts relevant and essential for disposal

of the appeal are noted hereinbelow.

4. The respondent No.3 Shri Rajeev Savara filed a complaint to

the SHO P.S. Muni Ki Reti, District Tehri Garhwal alleging inter

alia that he owns land admeasuring 1.196 hectares(approximately

15.94 bighas) situated on National Highway No. 7 at village

Singthali, Tehsil Narendra Nagar, District Tehri Garhwal,

Uttarakhand. He had formed a trust by the name, Savara

Foundation of which he is the founder and also Chairman of the

Board of Trustees. He claimed to be an internationally recognised

domain expert of pre-modern, modern visual and decorative Indian

arts, having served on the advisory boards of various art galleries

and museums.

5. The complainant had planned a foundation stone laying

ceremony of ‘Matra Ashraya-A collection museum’ on the said

land/property to be done by the Hon’ble Chief Minister of

Uttarakhand, namely, Mr. Trivendra Singh Rawat, in the presence

of Juna Peethadheeshwar Acharya Mahamandaleshwar Swami

Avdheshanand Ji Maharaj. The event was scheduled on 20th

March, 2020.

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6. It was alleged in the complaint that in order to blackmail the

complainant, the accused named in the aforesaid FIR, acting in

collusion, got published a news article in the e-newspaper

‘Parvatjan’, edition dated 17th March, 2020 wherein it was

portrayed that the land on which the foundation stone was

proposed to be laid was Government land which had been

unlawfully occupied/encroached upon by the complainant. The

complainant alleged that even his invitation was published in the

defamatory news article. It was further alleged that the

imputations were made in the news article with the intent and

knowledge that the same would irreparably tarnish the reputation

of the complainant and his standing in the public domain.

7. The complainant asserted that the sole objective of the

publication was to incite breach of peace. The article was

published without undertaking proper fact-finding exercise which

as per the complainant, would have conclusively and indisputably

established that he had not encroached upon Government land

and that the plot in question was lawfully owned and occupied by

the complainant. In this manner, the accused caused serious

damage to the goodwill, reputation and standing of the

complainant in the society. As per the complainant, the act of

3 publication of the mischievous and malicious news article by the

accused invited invocation of the offences punishable under

Sections 153A, 500, 501, 504 read with Sections 34 and 120B IPC.

8. Based on the said complaint, FIR No. 31 of 2020 came to be

registered at P.S. Muni Ki Reti, District Tehri Garhwal,

Uttarakhand for the above offences.

9. The appellant filed Criminal Writ Petition No. 881 of 2020 in

the High Court of Uttarakhand for challenging the said FIR

claiming to be completely innocent and taking a plea that the

allegations made in the FIR did not disclose commission of any

cognizable offence. It was averred in the petition that the news

article which had been published in the e-newspaper Parvatjan of

which the appellant herein was the Director, was entirely based on

the Facebook post of a journalist named Gunanand Jakhmola and

as such, the appellant herein was not liable to face prosecution for

the said publication.

10. As stated above, the High Court proceeded to dismiss the

criminal writ petition filed by the appellant vide order dated 20th

July, 2020 which is challenged in this appeal.

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11. Notice was served on the respondents. Whilst official

respondent Nos. 1 and 2 have put in appearance, respondent No.

3- complainant has chosen not to appear in the matter.

12. Counter affidavit has been filed on behalf of the State

wherein, it is stated that during the course of investigation, no

offence has been found to be made out against the newspaper

named Parvatjan as well as the Editor and Admin of Parvatjan

Newspaper, Parvat Jan Media Pvt. Ltd. and Parvatjan

Newspaper(e-paper), Parvat Jan Media Pvt. Ltd. respectively.

Since the news item was published on the Parvatjan news portal,

the name of Mr.Gajendra Singh Rawat, Director, Parvat Jan Media

Pvt. Ltd. was also dropped from the investigation and the

investigation agency has confined its focus upon the role of the

appellant herein and Gunanand Jakhmola, the journalist whose

Facebook post was allegedly the basis of the offending news article.

13. It is further stated in the counter affidavit that the

investigation has revealed that only offences punishable under

Sections 153A, 504 IPC read with Sections 34 and 120B IPC are

made out against the accused and the offences under Sections 500

and 501 IPC have been dropped.

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14. Learned counsel for the appellant vehemently urged that

admitted allegations as set out in the FIR do not disclose the

necessary ingredients constituting the offences under Sections

153A, 504 read with Sections 34 and 120B IPC and hence, the

continued investigation of the impugned FIR is nothing short of

gross abuse of process of law. He contended that the words

‘spoken’ or ‘written’ attributed to the accused were not such which

promoted or attempted to promote on the grounds of religion, race,

place of birth, residence, language, caste or community or any

other ground whatsoever, disharmony or feelings of enmity, hatred

or ill-will between different religions, racial, language or regional

groups or castes or communities, or committed any act which is

prejudicial to maintenance of harmony between different religions,

racial, language or regional groups or castes or communities, and

which disturbed or was likely to disturb the public tranquillity.

15. It was also urged that there is no communal, caste, religion,

race or place of birth based imputation in the news article

published on the online news portal of Parvatjan. Thus,

ingredients of the offence punishable under Section 153A IPC are

not made out from the FIR.

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16. It was further submitted that the contents of the news article

cannot be construed as promoting enmity or hatred between

different groups. It was submitted that even if the allegations made

in the FIR are taken to be true on the face of the record, apparently,

no two or more groups were involved in the matter and it was

simply a reporting about the proposed foundation stone ceremony

by the Hon’ble Chief Minister being held on a disputed piece of

land.

17. Learned counsel submitted that if at all, the complainant was

aggrieved that the news article had tarnished his image in the

society or had defamed him in the eyes of the public at large, the

appropriate remedy for him would have been to file a complaint for

defamation. However, he has tried to misuse the process of

criminal law by filing a totally frivolous FIR against the appellant.

He thus, urged that the impugned FIR and the proceedings sought

to be taken as a consequence thereof against the appellant deserve

to be quashed.

18. Per contra, learned standing counsel for the State of

Uttarakhand by referring to the counter affidavit filed on behalf of

the State, vehemently and fervently opposed the submissions

advanced by the appellant’s counsel. He urged that journalist

7 Gunanand Jakhmola, during the course of investigation, has

stated that his Facebook post had been manipulated. Thus, as per

learned standing counsel, the investigation might not be limited to

the offences for which the FIR has been registered.

19. He further submitted that by allowing publication of totally

false and malicious news article, the appellant generated imminent

possibility of strife and discontent between the people belonging to

the hill area (one group) and the people belonging to the plains (the

other group) and thus, prima facie ingredients of offence under

Section 153A IPC are made out from the allegations levelled in the

FIR.

20. He further submitted that in addition to the above offence,

offence under Section 504 read with Sections 34 and 120B IPC has

also been applied by the Investigating Officer. It was thus,

contended that it is not a fit case warranting interference with the

impugned order.

21. We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

impugned order and the material placed on record.

22. It may be noted that the entire case as set out in the

impugned FIR is based on the allegation that the Facebook news

8 post uploaded by one journalist Mr. Gunanand Jakhmola was

caused to be published on Parvatjan news portal being operated

by the appellant.

23. Thus, essentially, we are required to examine whether the

contents of the news report constitute any cognizable offence so as

to justify the investigation into the allegations made in the FIR

against the appellant.

24. For the sake of ready reference, the contents of the disputed

news article are reproduced hereinbelow: -

“Gunanand Jakhmola

17th March 2020 at 30.05

Trivender Uncle what amazing things you are doing?

Uncle you are laying foundation stone of Art Gallery which is going to construct by acquiring government land.

Uncle you are associating the mafias who are violating the decisions of Modi Government.

Don’t trap yourself with mafias, have you forgot the problems arisen out of marriage of Gupta brother’s.

Uncle you were not like this, what happened to you? Was the troubles arisen out of marriage of Gupta Brothers was not enough that you are now going to laying foundation stone of the Art Gallery which is going to construct by acquiring government land. Just think over it, or take report from LIU and other agencies about this Art Gallery which is going to construct on the acquired government land. This is a government land which is dismantled by mafias and your officers. Uncle you are innocent, anybody can use you. Advisers and officers surrounding you they are cunning.

This cunning persons have brought you forward against the decisions of Modi Government.

9 Uncle let I inform you for your knowledge that Modi Government means your honour has given sanction to planning for Singtali Project near Rishikesh. This project will reduce the distance between Kumau and Garhwal and also it will arrange sources of employment in mountains. World bank is also giving money, but the program of Mafias in which you are going to participate on 20 March, that is an enemy of mountains. It has no concern with the well being of mountains. It is against the proposed project of Modi Government and your officers and advisers are in collusion with that. Please inquire it and then only you go.

Note: Kindly see the invitation card given by mafias.”

25. As per the counter affidavit filed on behalf of the State, after

investigation, two substantive offences were retained by the

Investigating Officer against the appellant, which are Sections

153A and 504 read with Sections 34 and 120B IPC.

26. From a bare reading of the language of Section 153A IPC, it

is clear that in order to constitute such offence, the prosecution

must come out with a case that the words ‘spoken’ or ‘written’

attributed to the accused, created enmity or bad blood between

different groups on the ground of religion, race, place of birth,

residence, language, etc., or that the acts so alleged were

prejudicial to the maintenance of harmony.

27. Upon careful perusal of the offending news article,

reproduced (supra), it is crystal clear that there is no reference to

any group or groups of people in the said article. The publication

10 focuses totally on the complainant imputing that he had

encroached upon public land where the foundation stone laying

ceremony was proposed at the hands of Hon’ble Chief Minister of

Uttarakhand. Apparently, the post was aimed at frustrating the

proposed foundation stone laying ceremony on the land, of which

the complainant claims to be the true owner. The post also

imputes that the person who was planning the foundation stone

ceremony was an enemy of mountains and had no concern with

the well-being of the mountains.

28. Learned standing counsel for the State tried to draw much

water from these lines alleging that this portion of the post tends

to create a sense of enmity and disharmony amongst people of hill

community and the people of plains. However, the interpretation

sought to be given to these words is far-fetched and unconvincing.

The lines referred to supra only refer to the complainant, imputing

that his activities are prejudicial to the hills. These words have no

connection whatsoever with a group or groups of people or

communities. Hence, the foundational facts essential to constitute

the offence under Section 153A IPC are totally lacking from the

allegations as set out in the FIR.

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29. In the case of Manzar Sayeed Khan v. State of

Maharashtra and Anr.1, this Court held that for applying Section

153A IPC, the presence of two or more groups or communities is

essential, whereas in the present case, no such groups or

communities were referred to in the news article.

30. The other substantive offence which has been applied by the

investigating agency is Section 504 IPC. The said offence can be

invoked when the insult of a person provokes him to break public

peace or to commit any other offence. There is no such allegation

in the FIR that owing to the alleged offensive post attributable to

the appellant, the complainant was provoked to such an extent

that he could indulge in disturbing the public peace or commit any

other offence. Hence, the FIR lacks the necessary ingredients of

the said offence as well. Since we have found that the foundational

facts essential for constituting the substantive offences under

Sections 153A and 504 IPC are not available from the admitted

allegations of prosecution, the allegations qua the subsidiary

offences under Sections 34 and 120B IPC would also be non est.

31. The complainant has also alleged in the FIR that the accused

intended to blackmail him by publishing the news article in

1 (2007) 5 SCC 1 12 question. However, there is no allegation in the FIR that the

accused tried to extract any wrongful gain or valuable security

from the complainant on the basis of the mischievous/malicious

post.

32. In the case of State of Haryana and Ors. v. Bhajan Lal

and Ors.2, this Court examined the principles governing the scope

of exercise of powers by the High Court in a petition under Article

226 of the Constitution of India and under Section 482 CrPC

seeking quashing of criminal proceedings and held as follows :-

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

2 1992 Supp (1) SCC 335 13 (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

33. Tested on the touchstone of the above principles, we are of

the firm view that allowing continuance of the proceedings

pursuant to the impugned FIR bearing No. 31 of 2020 registered

at P.S. Muni Ki Reti, District Tehri Garhwal against the appellant

is nothing but gross abuse of process of law because the

allegations as set out in the FIR do not disclose necessary

ingredients of any cognizable offence. Hence, the impugned FIR

14 and all proceedings sought to be taken against the appellant are

hereby quashed and set aside.

34. The appeal is allowed accordingly.

35. Pending application(s), if any, shall stand(s) disposed of.

………………….……….J. (B.R. GAVAI)

………………………….J. (SANDEEP MEHTA) New Delhi;

March 19, 2024.

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