Srinagar, Feb 12: Jammu and Kashmir High Court has quashed criminal proceedings against a councillor of Ladakh Autonomous Hill Development Council (LAHDC)-Kargil Zakir Hussian who was arrested last year and charged with sedition and other offences for his audio clip mocking Prime Minister Narendra Modi and the Army in the wake of the face-off between India and China in Ladakh.

“…the offences charged against the petitioner (Zakir Hussain) are not made out and, therefore, the registration of FIR, which has culminated into filing of the Final Police Report without previous sanction from the competent authority before the Chief Judicial Magistrate, Kargil is sheer abuse of the process of law,” Justice Sanjeev Kumar while allowing the petition filed by Zakir Hussain.

“This Court, therefore, finds it a fit case to invoke its inherent powers vested by Section 482 Cr. P. C and quash all the criminal proceedings pending against the (Zakir Hussain) including the impugned FIR with regard to the audio clip, which allegedly contains conversation between (Zakir Hussain) and one Nissar Ahmed Khan.”

On September 24 last year, the High Court had granted bail to the councillor who was arrested on June 19 , 2020 in an FIR No.34 of 2020 registered against him under Section 124A (sedition), 153A, 153B, 505(2) and 188 of IPC at Police Station, Kargil.

Zakir, a long time Congress activist, was expelled by the party on the issue despite him submitting a public apology over his remarks.

While quashing the criminal proceedings, the court underlined that for making out an offence under Section 124A, 153A, 153B and 505(2) IPC, it is necessary to demonstrate that the words written or spoken or signs or visible representation have the tendency or intention of creating public disorder or disturbance of public peace by incitement to offence.

“The provisions of Section 196 Cr.P.C. do not, in any manner, control Section 154 of the Code of Criminal Procedure, in that, the police is competent to register an FIR, if information received by it discloses commission of cognizable offence, even if it is referable to Section 196 Cr. P. C,” the court concluded , adding, “The police, who are competent to register FIR under Section 154 Cr. P. C., are equally competent to investigate the same and present the final report before the Court.”

Section 196 Cr. P. C., Justice Sanjeev Kumar said, would come in operation at the stage of taking of cognizance by the Court and it will refuse to take cognizance of the offence(s) referable to Section 196 Cr. P. C., if there is no previous sanction by the Central Government or State Government or District Magistrate, as the case may be.

“That in case, challan with regard to the offence(s) having reference to Section 196 Cr. P. C. is presented before the Judicial Magistrate without obtaining prior sanction from the competent authority, the Court shall not take its cognizance but return the same to be presented only after seeking previous or prior sanction of the competent authority.”

The Court shall be deemed to have taken cognizance only if it applies its mind to the Final Police Report submitted before it in terms of Section 173 Cr. P. C. with a view to proceed further in the manner provided in law, Justice Sanjeev Kumar said. “That the Magistrate, who finds the police report not in consonance with Section 196 Cr. P. C. shall not retain the challan and proceed in the matter rather it would return the same to the prosecution.” gns