Wednesday, June 27, 2012

‘Really absurd to say articles amount to sedition’

On April 18, 2012, Justice Harsha Devani Of Gujarat High Court Quashed Charges Of Sedition Filed Against The Times Of India By The Then Ahmedabad Police Commissioner O P Mathur. We Now Have A Written Copy Of The Order. Excerpts...

    The facts of the case are that the respondent No.2 (O P Mathur) was appointed as Police Commissioner, Ahmedabad city on 20th May, 2008. The Times of India published certain news items in its Ahmedabad edition beginning from 27th May, 2008. The first news item came to be published under the heading “Was Ahmedabad CP a Latif Man? CBI papers cast a shadow on O.P. Mathur’s role in Ex-MP Rauf Valiullah’s murder in 1992”.
    On 28th May, 2008, the Ahmedabad edition of TOI carried a news item titled “How can Ahmedabad be safe in his hands? As Head of ‘Latif Squad’, was Mathur also on don’s payroll?”
    On 29th May, 2008, TOI published a news item under the title “OPM high A’bad can do without — He brandished revolver, left it at lady love’s house”. Another news item was titled “Geetha showed who is boss”. The said edition also contained a column bearing the heading “Do you want O P Mathur to continue as commissioner of police, Ahmedabad?” and invited opinions of the readers.
    On 30th May, 2008, TOI contained a news item bearing the heading “Crooked path to the crown” “OP Mathur Got the Position of Commissioner of Police, Ahmedabad, as reward for botching up the probe into the fake encounter of Sohrabuddin, a close associate of mafia don Latif”.
    On 31st May, 2008, TOI carried a news item under the heading “Latif an ISI man and Mathur a Latif man? — Five million Amdavadis can’t be safe under new police chief with dubious links”. The newspaper also carried news item pointing out that in response to the news items carried by Times of India, 98% of the readers did not want Mathur to continue as Commissioner of Police, Ahmedabad.
    On 1st June, 2008, the Ahmedabad edition of The Times of India carried three news items regarding the underworld don late Abdul Wahab Latif and his close associates Sharif Khan and Rauf Valiullah, Ex-M.P.
In the aforesaid background, Mathur lodged the first information reports with Navrangpura police station. The Times of India moved applications for quashing the FIRs .
A perusal of the news items which have been published in various editions of The Times of India from 27th May, 2008 to 1st June, 2008 show that on the basis of statements recorded by the CBI in respect of earlier investigation in connection with the murder of Congress leader and Ex-M.P. Rauf Valiullah, the articles in question have been published questioning the wisdom of the state government in appointing Mathur as the police commissioner, given his background as narrated in the said articles. A close reading of the said articles reveals that what is stated therein is based upon statements recorded by the CBI, viz., official records. The said records are related to the official functions of Mathur.
    A perusal of the article dated 28th May, 2008 in respect of which the second first information report has been lodged shows that the same is based upon the allegations contained in CBI documents presented before the courts at the relevant time. It is stated in the said article that these allegations were never probed by successive regimes and now that the facts have faded out of collective memory, the Government of the day does not bother checking the dark pasts of officers before rewarding them with plum postings.
    The second article contained therein relates to jail break plans which had been made at the time when Mathur was serving as DGP, CID (Crime) and Jails. In the entire first information report, there is absolutely no allegation made against the State Government and the same only states that jail break plans were scuttled not because of any alertness on the part of the jail establishment under Mathur, but because of timely intercepts by the I.B. and quick follow-up action by the Crime Branch. The next article published on 29th May, 2008 contains two articles one stating facts to the effect that Mathur had gone to the house of one Sarita Sharma and that during the course of an argument, he had brandished his service revolver. The said article, can in no manner, be said to be an article which would create hatred or contempt or disaffection towards the state government inasmuch as the same does not even mention any act of the state government. The second article is in respect of an incident that had taken place earlier. It is stated in the said article that DCP Geetha Johri, an officer junior to Mathur, promptly acted upon a tip-off that Latif and his gang had been spotted at Mahad Ka Mohalla. However, while Latif escaped two of his men were arrested by Geetha and her men and that by the time Mathur dragged his feet to reach Mahad Ka Mohalla, things had quietened down. Geetha was already on her way to Shahibaug with her two prize catches. On a plain reading of the said article it is amply clear that the same does not impute anything to the State so as to fall within the ambit of section 124A. In the said edition, opinions have also been called for from the readers as to whether they want O.P. Mathur to continue as Ahmedabad’s commissioner of police.
    In the article published on 30th May, 2008, various events right from 1992 to May, 2008 till the time Mathur was made the commissioner of police had been detailed. In the said article, it has been alleged that the earlier investigating officer Rajnish Rai had handed over the case papers to Mathur which included a CD containing telephone records of police officers, businessmen and politicians which indicated towards a possible nexus behind the elimination of Sohrabuddin in order to save some Rajasthan-based businessmen from his extortion threats.
When Mathur forwarded the case papers to Geetha, with instructions in writing that she should inform him about every move in the case, Geetha found the CD of telephone records missing. Without the CD to establish the political nexus, it is only police officers who find themselves behind bars in the fake encounter of Sohrabuddin and the killing of Kauserbi. The missing CD has also given confidence to the Gujarat Government to admit in an affidavit before the S u p re m e Court that Sohrabuddin encounter was fake, and his wife Kauserbi was also killed by the same bunch of police officers. If the CD was still part of the Sohrabuddin case papers, a top Gujarat minister (Amit Shah) and a high- ranking BJP politician of Rajasthan would be running for cover. This political duo reciprocated last week by making Mathur the Commissioner of Police, Ahmedabad. Thus, this article contains an imputation against the political duo, which is alleged to have reciprocated by making Mathur a Commissioner in connection with the CD which was found to be missing.
    In the article published on 31st May, 2008 which bears the heading “Latif an ISI man and Mathur a Latif man? Five Million Amdavadis can’t be safe under new police chief with dubious links”, the background of Mathur has been stated and it has been further alleged that on the one hand, the security cover of Chief Minister Narendra Modi has been upgraded to “PM level” on the other, there is virtually no insulation from terror strikes for five million Amdavadis. The rickety security machinery of Gujarat’s largest city now has a Head who cannot be trusted with handling either the underworld or terror networks. It is further stated that considering that fighting terror has always been very high on the Chief Minister’s agenda but his credentials as a leader determined to fight terror and make Gujarat a safe and secure place do get dented with a cop of Mathur’s rather dubious credentials occupying such a critical position in the security apparatus. In the said edition, the response of the readers of the Times of India on the opinions called for in the earlier edition have also been published which reveal that 98% of the readers wanted Mathur out.
It has been stated that the articles in question have been published with the intention to cause hatred against senior police officers of the state government established by law and that
the same have been published as an
attempt to cause contempt and hatred against the state government, the same would not fall within the ambit of section 124A IPC or section 3 of the Police (Incitement to Disaffection) Act, 1922, when the ingredients for constitution of an offence under section 124A IPC and section 3 of the said Act are woefully lacking.
Judging the contents of the articles in question, from the standards of a reas o n ab l e m a n , t h e same would not in any manner have the effect of creating hatred, disaffection or contempt for the State Government. As held by the Supreme Court, the state government cannot be identified with an individual, under the circumstances, if the said articles have the effect of creating any disaffection against Mathur as an individual, the same would not attract the provisions of section 124A of the Act.
Moreover, it is really absurd to say that articles in question amount to sedition. If such were the case, then every argument/comment against the m a n - ner of functioning of the government might be alleged to lead to hatred of the government, and it might be suggested that such comments brought the government into hatred or contempt.
    In the light of the aforesaid disc u s s -
ion, this court is of the view that the allegations made in the first information reports in question do not constitute the offence under sections 124A, 120-B and 34 IPC and section 3 of the Police (Incitement to Disaffection) Act, 1922. Under the circumstances, continuance of the proceedings against the applicants would amount to abuse of the process of law, justifying invocation of the powers under section 482 of the Code to secure the ends of justice.
    For the foregoing reasons, the applications succeed and are, accordingly, allowed. The first information reports registered vide Navrangpura Police Station I-C.R. No.286/2008, 288/2008, 289/2008, 298/2008 and 299/2008 are hereby quashed and set aside.