Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(J&K) 163

IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
SANJEEV KUMAR, J.
Dr. Tawseef Ahmad Bhat – Petitioner
Versus
State of J&K and Another – Respondents
CRMC No. 437 of 2018
Decided On : 09-07-2021

Advocates:
Advocate Appeared:
For the Petitioner: Mr. M.A. Qayoom.
For the Respondent: Mr. Bikramdeep Singh.

Point of Law: Power of Executive Magistrate Class-1 to direct or register FIR - Under scheme of Code, Executive Magistrate has not been empowered to direct registration of FIR and this power in terms of S. 156(3) of Code is conferred upon a Judicial Magistrate empowered under S. 190 to take cognizance of an offence.

Headnote:
Code of Criminal Procedure, 1973 - Sections 561-A, 154, 156 and 482 - Prevention of Insult to National Honour Act, 1971 - Section 3 - Quash of FIR - Non-participated in singing of Indian National Anthem, etc. - Whether an Executive Magistrate Class-1 is empowered under provisions of Code to direct registration of an FIR - Whether non-participation in singing of National Anthem is an offence under Section 3 of Act and whether person who shows disrespect to National Anthem without preventing its signing or disturbing assembly engaged in such singing, can be booked under Section 3 of Act - While petitioner was serving in second spell of his engagement, College was celebrating surgical strike conducted by Indian Army against neighbouring Country - As is claimed by petitioner, on request of Clerk of College, petitioner stopped class work and allowed the students to participate in function.
Finding of the Court:
Observations made by SDM, that on enquiry he found that the petitioner had intentionally caused disturbance in assembly engaged in signing National Anthem is clearly an afterthought and was not part of the complaint made before him by the students nor is such observation supported by any material particulars - It is crystal clear that it is intentional preventing of singing of Indian National Anthem or causing disturbance to any assembly engaged in such singing that is made punishable with imprisonment up to three years, or with fine, or with both - It is thus not correct to say that impugned FIR has been registered solely on the basis of directions issued by SDM, Bani, who, being an Executive Magistrate, is not empowered to do so. Court view that though an Executive Magistrate may not be empowered under Section 156(3) of Code to direct investigation in cognizable offence yet he can bring to the notice of the police information relating to commission of cognizable offence and direct it to perform its statutory duty.
Result: Petition allowed.

JUDGMENT :

SANJEEV KUMAR, J.

1. Impugned in this petition, filed under Section 561-A Code of Criminal Procedure (as it was then in force), is FIR No. 69/2018 registered by Police Station, Bani, against the petitioner under Section 3 of Prevention of Insult to National Honour Act, 1971 [“the Act”]. During 2017-2018, when the impugned FIR was registered, the petitioner was working as Lecturer in Government Degree College, Bani, on contractual basis. The petitioner was engaged as Lecturer in August, 2017, for a period of one year, which period was extended for another year vide Order No. GGM/Acad/Arrg/POL/2018-19/012 dated 4th of August, 2018.

2. While the petitioner was serving in the second spell of his engagement, on 29th of September, 2018, the College was celebrating surgical strike conducted by Indian Army against the neighbouring Country. As is claimed by the petitioner, on the request of Clerk of the College, the petitioner stopped the class work and allowed the students to participate in the function. The petitioner claims that he too joined the students and attended the function. The function started with the singing of National Anthem. The petitioner asserts that he along with staff was also standing when the National Anthem was being sung.

3. The petitioner submits that while he was taking the examination of B.A. 5th Semester, some students came and informed him that a group of students was holding demonstration against him inside the College premises on the ground that he had shown disrespect to the National Anthem. On the instigation of one Pawan Sharma, Computer Clerk, the demonstrating students approached SDM, Bani, with a written application. The application was forwarded by SDM, Bani, to Police Station, Bani, with a direction to lodge an FIR against the petitioner. It is alleged that it is only on the basis of the directions issued by SDM, impugned FIR was registered and the investigation set in motion. The petitioner, as is claimed by him, lost his contractual appointment because of registration of aforesaid FIR. He was discharged from service vide order dated 3rd October, 2018.

4. The petitioner is aggrieved and has assailed the registration of impugned FIR on the following grounds:

(i) That the respondent No. 2 Sub-Divisional Magistrate, Bani, who also exercises powers of Executive Magistrate, Class-1, is not competent in law to direct the police to register an FIR. It is only the Judicial Magistrate Class-1, who is empowered to issue such directions in terms of Section 156(3) of the Code of Criminal Procedure [“the Code” for short hereinafter].

(ii) That the allegations contained in the FIR, if taken to be true on their face value, do not constitute offence under Section 3 of the Act. There is no allegation that the petitioner prevented the singing of National Anthem or caused any disturbance to any assembly engaged in such singing.

5. Having heard learned counsel for the parties and perused record, I am of the view that this petition raises following two questions of seminal importance:

(i) Whether an Executive Magistrate Class-1 is empowered under the provisions of the Code to direct registration of an FIR?

(ii) Whether non-participation in the singing of National Anthem is an offence under Section 3 of the Act and whether the person who shows disrespect to the National Anthem without preventing its signing or disturbing the assembly engaged in such singing, can be booked under Section 3 of the Act?

Question No. (i): Whether an Executive Magistrate Class-1 is empowered under the provisions of the Code to direct registration of an FIR?

6. It is argued by Mr. Qayoom, learned counsel for the petitioner, that under the scheme of the Code, the Executive Magistrate has not been empowered to direct registration of an FIR and this power in terms of Section 156(3) of the Code is conferred upon a Judicial Magistrate empowered under Section 190 to take cognizance of an offence.

7. Per contra, it is argued by Mr. Bikramdeep Singh,