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The Court issued notice in the matter on Friday. However, the Court has not granted any interim relief to Geelani, who is one of the several journalists to be booked under the UAPA this month.
Kashmiri journalist Gowhar Geelani, who is one of the several scribes to be slapped with charges under the Unlawful Activities (Prevention) Act (UAPA), has moved the Jammu & Kashmir High Court seeking quashing of the FIR against him. The Court has issued notice and sought the government's response on the plea.
The single Judge Bench of Justice Ali Mohammad Magrey on Friday issued notice on Geelani's petition and fixed the next date of hearing on May 20, after taking the matter up via video conferencing.
The High Court has not granted any interim relief to Geelani, who is one of the several journalists to be booked under the UAPA this month.
The FIR against Geelani was registered at Cyber Police Station, Kashmir Zone. The lack of jurisdiction of this Police Station is one of the primary grounds pressed by Geelani for quashing the FIR. This Police Station has has been designated as as a Station for registering cases relating to the Information Technology Act and other allied offences. Therefore, it is contended that the Police in this station lacks the jurisdiction to lodge FIRs under the UAPA or the Indian Penal Code (IPC).
The Court recorded Geenali's submission in this regard that "Cyber Police Station has no jurisdiction to register and investigate the offence made in the FIR, as same is beyond the powers as vested in terms of Section 78 of the Information Technology Act, 2000."
It was further argued on behalf of the scribe that the FIR does not disclose the commission of any cognizable offence, which is the required basis for registration of an FIR under Section 154 of the Code of Criminal Procedure (CrPC).
Before an FIR is registered, it is pointed out that the police officer in charge must have reason to suspect the commission of a cognisable offence, and further that he must be subjectively satisfied that there is sufficient ground to commence an investigation. Geelani contends that both have not been satisfied.
Additionally, the petitioner alleges that the action of the Police had been taken with malice. It is added that the information disclosed for the registration of the FIR does not meet the requirements of the provisions under Section 3 of the UAPA. Further, that the FIR does not disclose the commission of offences under Sections 505 of IPC and 13 of the UAPA.
Recording submissions on this aspect, the Court's order states "The further ground raised in the petition is that the action of the Police is having basis on malice in law, as there is no material, which forms the basis for registration of case against a Journalist, who only performs his professional duties, as guaranteed under Article 19(1) (a) of the Constitution of India."
The Additional Advocate General, representing the Union Territory of Jammu & Kashmir informed the Court that no copy of the petition was supplied by the petitioner, thereby falling short of complying with the Standard operating procedure (SOP) as regards hearings in urgent matters.
The AAG argued that at this stage i.e. at the threshold of the investigation, the Court does not have the power to interfere in the matter in exercise of its power under Section 482 of the CrPC. The State also questioned the grounds on which the FIR was being challenged. The grounds raised are "vague", the AAG told the Court, and "without any merit".
The Court was also told that the FIR stood transferred by the Cyber Police Station at Kashmir Zone to the Supervisory authority of Police, and the Inspector General of Police of Kashmir transferred the case to Police Station at Sadder for investigation. On account of the same, the jurisdiction cannot be questioned by the petitioner, the AAG argued.
The AAG further added that the case was at an infant stage and was beyond the scope of Court's power under Section 482 of the CrPC. In this regard, he said that the Supreme Court has on several occasions said that the power under Section 482 of the CrPC must be exercised with caution.
After hearing the counsel for both parties, the Court issued notice to the government and sought a response or status report before the next date of hearing which is fixed for May 20. No orders have been passed as regards interim relief for Geelani.