SOFI GH MOHD Vs. DISTRICT MAGISTRATE, SRINAGAR

JUDGEMENT

(1.) THIS is a writ petition under Article 226 of the Constitution of India. It is directed against a show cause notice issued by the District Magistrate, Srinagar, to the petitioner who is the Editor, Printer and Publisher of the Srinagar Times an Urdu daily Newspaper originating from Srinagar. The notice reads:

(2.) THE show cause notice is remarkable for being devoid of any legislative support. Equally remarkable in their dangerous implications are the arguments of the learned Additional Advocate General to support it. He says that the publication of the cartoons in question constitutes a prejudicial act as defined in the Jammu and Kashmir Security Rules, 1966 and the petitioner is liable to be prosecuted under the said rules on a complaint filed by a public servant like the District Magistrate under Rule 126 (1) thereof. But before the District Magistrate could file the complaint, he thought it desirable to call upon the petitioner to explain his conduct and as such the notice was eminently just and proper, and did not result in manifest injustice to the petitioner. Accordingly, S. Ghulam Mohd. V. The District Magistrate Srinagar (Mufti J.) 235 he further says, even if the notice is without jurisdiction, no writ can be issued to quash it. Here it is that reference to Rule 126 (2) of the Security Rules becomes necessary. That Rule reads: - "Proceedings in respect of contravention of the provisions of these rules or any order made thereunder alleged to have been committed by any person may be taken before the appropriate Court having jurisdiction in the. place where that person is for the time being." It is clear from this Rule that it is for the ordinary criminal Courts in the State to determine if any person is really guilty of the contravention of the provisions of the Security Rules or any order made thereunder and punish him, if necessary. That power, according to the procedure established by law in the Code of Criminal Procedure, includes the power to determine prima facie if a case of contravention is made out against such person and whether a notice should be issued to him requiring him to answer the charge and then also to issue such notice, if necessary. In the exercise of these powers by a competent Court of law lies the justice of a case arising under the Security Rules. No other authority in the State, how so ever high it may be can exercise those powers wholly or partially. Doing so would constitute denial of Justice and be moreover destructive of the system of administration of justice through properly constituted Courts and Tribunals. If a public servant, as the District Magistrate Srinagar in the instant case, sits in judgment and determines though, prima facie only, that a person is guilty of the contravention of the Security Rules and then calls upon him to explain the contravention, he clearly assumes the power given to the ordinary law Courts under Rule 126 (2) thereby denying justice to the person called upon to explain the contravention and I find it really very difficult to appreciate the process of reasoning by which the learned Additional Advocate General has endeavoured to uphold the action as just and proper. On the principles set out above it must be held that the issue of the show cause notice to the petitioner has resulted in manifest injustice to him and a writ of certiorari must issue to quash the notice.

(3.) IN the view which I have expressed above it is not really necessary for me to go into the further question if the notice is otherwise valid and proper. Since the question was canvassed before me I consider it desirable to make some observations about it. The notice is vague and indefinite. It does not specify which rule or law has the publication of the cartoons in question offended. The notice does not therefore afford any real opportunity to the petitioner to explain the charge and is therefore violative of the principles of natural justice which require that the notice should be precise and clear to enable a person to whom it is issued to explain the charges against him. Viewed thus it must again be held that the impugned notice has resulted in manifest injustice, for nobody can suggest that a notice violative of the principles of natural justice does not result in manifest injustice.