Andhra Pradesh High Court - Amravati
Dr.Vallabhaneni Vamsi Mohan, vs The State Of Andhra Pradesh, on 3 December, 2019
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.17635 OF 2019
ORDER:
This writ petition is filed under Article 226 of the Constitution of India questioning the inaction of the respondent No.4 in not registering the crime against the accused mentioned in the complaint lodged by the petitioner dated 16.09.2019 and to declare the inaction of the respondent No.4 as illegal, arbitrary and unconstitutional, consequently direct the respondents to follow the guidelines issued by the Apex Court in "Lalita Kumari v. Government of Uttar Pradesh1".
The petitioner - Dr.Vallabhaneni Vamsi Mohan, is a Member of Legislative Assembly representing Gannavaram Assembly Constituency in Andhra Pradesh Legislative Assembly. He also floated a charitable institution in the interest of public service and good in the name of "Smt. Vallabhaneni Aruna Charitable Trust" in memory of his mother. With the consistent work and inclination, by doing social work, the petitioner gained and gathered reputation not only in his constituency but also across Krishna District and the state of Andhra Pradesh.
Some persons including Byreddy Siddarth Reddy and others are making false allegations, baseless accusations against the petitioner and his family, putting them in constant fear and threat to life. They are also spreading wild allegations against him, threatening him and his family through online public domain forums and social network such as Facebook, WhatsApp, Twitter and such other networks. The rumors and wild allegations 1 (2014) 2 SCC 1 MSM,J WP_17635_2019 2 spreading against him by the aforesaid persons put him and his family in an inconvenient position.
Due to the illegal and immoral acts committed by the aforesaid persons, the petitioner lodged a complaint dated 16.09.20019 before respondent No.2 clearly mentioning about the baseless, defamatory, wild allegations that have been widely circulated on social media with all particulars. He also enclosed the printed copies of the relevant posts from the social media platforms along with the said complaint.
The petitioner received a letter dated 26.09.2019 from the respondent No.2 refusing to register a crime against Byreddy Siddarth Reddy and others and the said letter is illegal for the following reasons.
(a) That the letter send by the 2nd respondent is contrary to Sec.154 (3) Cr.P.C. as the 2nd respondent is bound to set the criminal law into motion against the named accused in the complaint by forwarding the same to the 3rd respondent, concerned police station to take the complaint on file.
(b) The complaint submitted by the petitioner not only discloses information about commission of the offence under Section 500 and 506 IPC, but also under the penal provisions of information Technology Act.
(c) Whenever the complaint is lodged, disclosing information about commission of cognizable offence, it is the duty of concerned SHO to register a case and if the concerned SHO fails to discharge his statutory obligation under MSM,J WP_17635_2019 3 Section 154 Clause (1) Cr.P.C, it is the duty of the superior officer either to register a case or direct the concerned SHO to register a case as per the provisions of the Sec.154 (3) Cr.P.C. and law is well settled relating to the statutory obligation of the police officials. It is further contended that it is the duty of the respondents to register a crime when they received information about the commission of cognizable offence in view of the law declared by the Apex Court in "Lalita Kumari v. Government of Uttar Pradesh"
(referred supra), but contrary to the law laid down by the Apex Court, respondent Nos.2 to 4 refused to register a crime for the reasons best known to them. Thereby, the act of the respondents is arbitrary, illegal and requested to grant relief as stated supra.
Copy of the complaint lodged with the Commissioner of Police dated 16.09.2019 is placed on record to find out whether the allegations made against the petitioner by Byreddy Siddarth Reddy, Vadlapatla Hari Krishna, Ravi Kumar Muppaneni, Jagananna Youth Soorampalli and Palanedi Phani Yadav disclosed information about the commission of cognizable offence or not.
During hearing, Sri Challa Ajay Kumar, learned counsel for the petitioner, contended that when a complaint is made to the respondent Nos.2 and 4 disclosing commission of cognizable offence, respondent No.2 has to forward the same to respondent No.4 for registration of crime and respondent No.4 is bound to register the same. Obviously, for the reasons best known to them, respondent Nos.2 and 4 did not register any crime against Byreddy Siddhartha Reddy and others (referred above) and non-registration of crime against the persons referred above is contrary to the MSM,J WP_17635_2019 4 principles laid down by the Apex Court in "Lalita Kumari v. Government of Uttar Pradesh" (referred supra). When serious allegations are made by Byreddy Siddhartha Reddy and others (referred above) against the petitioner spreading rumours against the petitioner and his family members on internet platform, which constitutes serious offence punishable under Section 67 of the Information Technology Act, 2000 (for short "the I.T.Act"), besides constituting offence punishable under Section 506 and 500 of I.P.C. the respondent ought to have register a crime and investigate into, and requested to issue a direction to the respondent No.4 to follow the principles laid down by the Apex Court in "Lalita Kumari v. Government of Uttar Pradesh" (referred supra).
Learned Government Pleader for Home contended that the offence punishable under Section 500 and 506 of I.P.C. are not cognizable offences, whereas the allegations made in the compliant do not constitute offence punishable under Section 67 of the I.T.Act, in the absence of any obscenity in the alleged rumours spread by them, referred in the complaint, question of registration of crime for the offence punishable under Section 67 of the I.T.Act does not arise. Therefore, respondent No.4 is not under obligation to register a crime when the complaint does not disclose any material about the commission of cognizable offence, thereby the act of respondent No.4 does not amount to disowning any public duty being a Public Officer and this Court need not issue any direction i.e. Writ of Mandamus to register a crime based on the complaint, which does not disclose any information about the commission of cognizable offence. Even otherwise, the remedy open to the petitioner is elsewhere and he can file a private complaint MSM,J WP_17635_2019 5 before the Magistrate to redress his grievance. Instead of approaching the Magistrate's Court, petitioner approached this Court with an oblique motive and political reasons.
As seen from the allegations made in the writ petition, the petitioner lodged complaint with respondent No.2 dated 16.09.2019 for registration of crime against Byreddy Siddarth Reddy, Vadlapatla Hari Krishna, Ravi Kumar Muppaneni, Jagananna Youth Soorampalli and Palanedi Phani Yadav making certain allegations for spreading rumours against him and his family members and the allegations are narrated in paragraph No.3 of the complaint, they are extracted hereunder for better appreciation.
"The baseless, defamatory, wild allegations that have been widely circulated on social media (Facebook), Whats App and other mobile and computer based applications are as below:
a. That every street dog wishes to be a lion but street dogs like me cannot get to the throne.
b. That I am a stooge of Late Sri.Paritala Ravi and feared one Mr.Suri.
c. That I would be skinned alive if I speak against Jagan Mohan Reddy.
d. That I am a mining thief etc. e. That I threatened one Phani Yadav to withdraw cases and TDP leader Chandra Babu Naidu got killed 60 YSRCP followers and 600 persons were done to death in TDP rule and 10,000 members were attacked. 1 Lakh people deserted their villages and begging in the neighbouring states.
(A printed copy of the relevant posts from Facebook and message being circulated on other applications are enclosed herewith)." Based on these allegations extracted above, the petitioner requested respondent Nos.2 to 4 to register a crime against Byreddy Siddarth Reddy and others (referred above), but the Commissioner of Police issued a letter informing that the MSM,J WP_17635_2019 6 allegations made in the compliant constitute an offence punishable under Section 500 of I.P.C. and there is a bar under Section 199 of Cr.P.C. to register a criminal case. Therefore, the petitioner is advised to file a private complaint before the competent Court. The said letter is now challenged on the ground that it is baseless and contrary to the guidelines issued by the Apex Court in "Lalita Kumari v. Government of Uttar Pradesh" (referred supra).
Issue of letter dated 26.09.2019 by respondent No.2 is not in dispute. Irrespective of respondent No.2's letter, it is better to advert to the allegations to decide whether the allegations made in the complaint constitute an offence punishable under the provisions of Indian Penal Code or the Information Technology Act, 2000.
The specific allegations made in the complaint extracted above may, at best, amount to defaming the petitioner in public view, which seriously affects the reputation of the petitioner in the public and such allegations would constitute an offence punishable under Section 500 of I.P.C., but in view of the bar under Section 199 of Cr.P.C. police cannot register crime, but private complaint can be filed for criminal defamation. Therefore, a letter of the respondent No.2 advising the petitioner to file a private complaint in view of the bar under Section 199 of Cr.P.C. is justifiable.
Learned counsel for the petitioner contended that the allegations made in paragraph No.3 of the complaint lodged by the petitioner constitutes offence punishable under Section 506 of I.P.C. Section 506 of I.P.C. deals with punishment for criminal intimidation.
MSM,J WP_17635_2019 7 The offence "criminal intimidation" is defined under Section 503 of I.P.C., which is as follows:
"503. Criminal intimidation.--Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intim- idation.
Explanation.--A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section."
In view of the definition of "criminal intimidation", the allegations made against the petitioner describing the petitioner as "dog", making imputation that he is a "mining thief" and "TDP leader Chandra Babu Naidu got killed 60 YSRCP followers" etc., may injure the reputation of a person i.e. the petitioner herein or the reputation of Chandra Babu Naidu in whom the petitioner is interested, Hence, the allegations made in the complaint dated 16.09.2019 lodged with the respondent No.2 constitute an offence punishable under Section 506 of I.P.C., but the offence punishable under Section 506 of I.P.C. as per 1st schedule of Cr.P.C. is non- cognizable as per column No.4. Therefore, respondent No.4 cannot register a crime against Byreddy Siddarth Reddy and others (referred above) for the offence punishable under Section 506 of I.P.C. Hence, the action of the respondent Nos.2 to 4 in not registering a crime for the offence punishable under Section 506 of I.P.C. cannot be faulted, on the other hand, they acted within their limitations prescribed by Cr.P.C.
The main contention of the petitioner is that spreading rumours and making serious allegations against the petitioner and circulating the same by Facebook, Whatsapp etc., disrepute the MSM,J WP_17635_2019 8 character of petitioner constitutes offence punishable under Section 67 of the I.T.Act.
Section 67 of the I.T.Act deals with punishment for publishing or transmitting obscene material in electronic form, which reads as follows:
" 67 Punishment for publishing or transmitting obscene material in electronic form. - Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees."
A reading of Section 67 of the I.T.Act, to constitute an offnce, there must be a publication or transmission of obscene material in electronic form. What is 'obscene' is not defined in the Act, but the content of Section 67 of the I.T.Act would show that any material, which is lascivious, appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.
Thus, the words used in the section are relevant for deciding the allegations made in the complaint by the petitioner against Byreddy Siddarth Reddy and others (referred above), would constitute an offence punishable under Section 67 of the I.T.Act.
The word "obscene" is not defined in the I.T.Act or in I.P.C. There are provisions viz., Sections 292 to 294 of I.P.C., which deals with publication of obscene material etc. MSM,J WP_17635_2019 9 Section 292 of I.P.C. deals with punishment for sale of obscene books etc. Section 293 of I.P.C. deals with punishment for sale etc., of obscene objects to young person. Section 294 of I.P.C. deals with obscene acts and songs in public place. Therefore, the word "obscene" assumes importance to decide whether the allegations made in the complaint lodged by the petitioner with the respondent No.2 highlighting the acts of Byreddy Siddarth Reddy and others discloses any obscenity.
The word "obscene" is defined in "Cambridge Dictionary", as follows:
"offensive, rude, or shocking, usually because of being too obviously related to sex or showing sex:"
The word "obscene" is defined in "Merriam Webster Dictionary", as follows:
"Definition of obscene 1: disgusting to the senses : REPULSIVE 2 a: abhorrent to morality or virtue specifically : designed to incite to lust or depravity... the dance often becomes flagrantly obscene and definitely provocative ...-- Margaret Mead b: containing or being language regarded as taboo in polite usage obscene lyrics obscene literature c: repulsive by reason of crass disregard of moral or ethical principles an obscene misuse of power d: so excessive as to be offensive obscene wealth obscene waste."
However, the words in postings by Byreddy Siddarth Reddy and others (referred above) in Facebook, WhatsApp, Twitter etc. does not amount to even vulgarity.
Vulgarity is not an offence and it is not defined anywhere in the Act. According to "Merriam Webster Dictionary", "vulgar" refers to something that is "offensive in language" or "lewdly or profanely indecent."
On examination of the words in the postings of Byreddy Siddarth Reddy and others, it is clear that they are not indecent, MSM,J WP_17635_2019 10 but at best they amount to defame a person or party as a group. Thus, there is any amount of difference between vulgarity and obscenity.
In any view of the matter, in the absence of any definition, the "obscenity" varies from person to person and it changes with time.
Obscenity changes with time, values, society, popular culture etc. The number of things that have a direct impact on the standards and level of obscenity are many and locking them into one line or a few lines are not possible.
The concept of obscenity differs from nation to nation and it depends on the moral and cultural values that have shaped that country. Indian society has always been very conservative about girls and the purity of woman has always been considered essential to sustain a family's reputation. Therefore, the definition given in European Countries to the word "Obscenity" cannot be adopted in our country as the Culture varies from European Countries and our Country i.e. India. Even otherwise, it changes with the time and depends upon the factual circumstances of the case. The meaning of the word "obscenity" in the year 1950 or 1940 cannot be adopted to the present day system due to change of time and change of culture, slightly. What was considered obscenity 30 or 40 years ago, might not be obscene now. India has always adopted tests from other countries to determine the element of obscenity. The tests have changed over a time according to its adaptiveness in the continuously evolving society.
MSM,J WP_17635_2019 11 The first case that came up for consideration before Queen's Bench is "Regina vs. Hicklin (L.R. 3 Q.B. 360 (1868))". The statutory interpretation of the word obscene as given under the Obscene Publications Act, 1857 was the issue. According to the Queen's Bench, all the materials depraving and corrupting the minds open to immoral influences was considered as 'obscene', regardless of its literary merit. Here, the intention was considered immaterial. If any portion of the work or publication was considered obscene even if that portion was out of context, it didn't matter, the entire work could be outlawed.
Later, in 1957, the US court developed a new test for obscenity in "Roth vs. United States (354 U.S. 476 (1957))". It was decided that only those sex-related materials which had the capability of generating prurient interest or lustful thoughts would fall under the category of obscene. This had to be judged from the point of view of an average person following 'community standards', unlike the previous test which focused only on the susceptible readers i.e. the vulnerable sections of the society such as children or weak-minded adults.
In 1966, in "Memoirs v. Massachusetts (383 U.S. 413 (1966))", the US court expanded the Roth test and stated that the last part of the definition i.e. utterly without redeeming social importance element had to be proved to classify something as obscene.
Later, in a landmark decision, the U.S.Supreme Court in "Miller v. California, 413 U.S. 15 (1973)", redefined its definition of obscenity from that of "utterly without socially redeeming value"
to that which lacks "serious literary, artistic, political, or scientific MSM,J WP_17635_2019 12 value". It is now referred to as the three-prong standard or the Miller test.
This test was for determining what kind of speech and expression can be classified as obscene. The test is based on 3 conditions and a piece of work would be considered obscene only if all the conditions were satisfied. The first two conditions are governed by the community standard while the third prong is governed by what is reasonable to a person of the US as a whole. The national reasonable standard acts as a check on the community standard, allowing protection for works that in a certain community might be obscene but at the national level, it should have to redeem social value. This could create conflicting interest between communities as what is treated as obscene by one community could have been treated differently by another.
Fixing national standards for what appeals to be prurient or offensive is not possible practically. The concept of considering a speech, obscene if it didn't have some value was so vague. Several questions arise here like the true connotations of value. On what factors, will a speech be considered valuable or value-less by the court? Why would the government and not the citizens have all the rights to decide? The law relating to obscenity was unclear and writers were afraid of the 'value' factor and therefore, were hesitant to publish their works to avoid litigation and punishments. So, the Miller test not only led to the elimination of obscenity but also legitimate speech.
Coming to the Indian Societal approach, the Apex Court while considering the English Hicklin test had an occasion to define what is obscenity in "Ranjit D. Udeshi v. State of MSM,J WP_17635_2019 13 Maharashtra2". In the said judgment, the Apex Court held that Section 292 of I.P.C. required any material to be taken as a whole whereas the Hicklin test required the material content to be checked in isolation. So there was a conflict of interest between the two. There were other loopholes too because of which the courts started undermining the Hicklin test. The conditions of the Hicklin test were liberalized and applied until the case of "Aveek Sarkar v. State of West Bengal3".
In "Aveek Sarkar v. State of West Bengal" (referred supra) the Apex Court while adverting to Section 292 of I.P.C. disagreed with the "Hicklin" Test and held that nude can't be considered obscene per se in terms of Section 292, unless, it arouses a feeling of sexual desire. In this particular case after 50 years of the application of the "Hicklin" test, the court finally disapproved it and adopted the "Roth" test. The intention behind it was to decide cases keeping in mind the contemporary national standards and not the group of susceptible persons. But the problem is that the test does not contemplate differential standards for different community and proceeds on a simple basis. Here, only it is the nature of work that matters and whether such work is accepted by the society at large or not. There was a lot of confusion as to what exactly constitute obscenity. How can the court draw a different line of a threshold for historically respectable figures in these cases? How do they decide the threshold? But at least people accepted the fact that obscenity is an exception to freedom of speech.
2 1965 SCR (1) 65 3 (2014 )4SCC 257 MSM,J WP_17635_2019 14 In 2006, the Supreme Court in the case of "Ajay Goswami v. UOI4" stated that the community based standard test has become redundant now and proposed a new test called as "responsible reader" test wherein a reader should be cautious in this era of technology.
Earlier, the Apex Court also had an occasion to decide the legality of various provisions of the I.T.Act, more particularly in "Avnish Bajaj v. State5", wherein the question was whether the website was responsible for the publication of the MMS or not. The website which was just an intermediary was held responsible for the same.
No doubt, as on date, the test applied by Indian Courts is "responsible reader test" while disagreeing with other tests i.e. "Hicklin test, Roth test, Miller test, Community based test. What is responsible reader test is highlighted in "Ajay Goswami v. UOI"
(referred supra). Moreover, it varies from place to place and changes from time to time.
In "HEIDI C. LILLEY, KIA SINCLAIR, AND GINGER M.PIERRO v. The STATE OF NEW HAMPSHIRE (2017- 0116 (N.H. 2019))" Laconia, New Hampshire specifically defines the offense of "public indecency" to include any public exposure of "the female breast," thereby criminalizing women but not men for being in public. Laconia, N.H., Code of Ordinances ch. 180, art. I, §§180-2(3), 180-4 (1998); see Pet.App. 71a-73a. Section 180- 2(3), makes it "unlawful for any person to knowingly or intentionally, in a public place ... [a]ppear in a state of nudity." 4
2007 (1) SCC 143 5 2008 (105) DRJ 721 MSM,J WP_17635_2019 15 But §184-4 then defines "nudity" to include "the showing of the female breast," but not the male breast, "with less than a fully opaque covering of any part of the nipple." Laconia, "Any person who violates this article shall be fined $250 for the first offense, $500 for the second offense and $1,000 for the third and each successive offense." Id. §180-5; see Pet.App. 73a.
See, e.g., Buzzetti v. New York, 140 F.3d 134, 141-42 (2d Cir. 1998) (a zoning ordinance for adult-entertainment establishments is subject to intermediate scrutiny because it does "classify female toplessness differently from the exhibition of the male chest"); Craft v. Hodel, 683 F.Supp. 289, 299 (D. Mass. 1988) ("The Regulation does, of course, distinguish between males and females and accords a 'freedom' to males that it denies to females.").
For instance, several tribals are living in villages and hill tops and the old triable women are not wearing blouses to cover their breast. Similarly, male tribals are wearing piece of cloth to cover their genitals without covering their body with cloth, even in boarder areas of Vizianagaram District of Andhra Pradesh, so also in certain parts of Srikakulam District. This was recognised and accepted by certain communities, but the same cannot be applied to other parts of the State or Country, where tribals are residing. Therefore, various theories referred above need no further consideration except the theory referred in "Ajay Goswami v. UOI"
(referred supra), but the same is depending upon the changed circumstances and the areas where such incidents took place.
Turning to the present facts of the case, none of the statements posted in Facebook, Whatsapp, Twitter etc. does not MSM,J WP_17635_2019 16 fall within the meaning of "obscene" to attract the provisions of Section 67 of the I.T.Act since the language used in those postings is not lascivious, appeals to the prurient interest.
In view of the specific allegations made in the complaint, the words employed in Section 67 of the I.T.Act are required to be analysed to find out whether any of the allegations made by Byreddy Siddarth Reddy and others would fall within the ambit of Section 67 of the I.T.Act. The specific words lascivious, prurient and deprave have their meaning. The meaning of "Lascivious" is "feeling or revealing an overt sexual interest or desire". Similarly, prurient means "having or encouraging an excessive interest in sexual matters, especially the sexual activity of others". The other word deprave means "morally corrupt; wicked". If the allegations satisfies any of these acts, including obscenity, the Court can issue a direction to register a complaint against Byreddy Siddarth Reddy and others for the offence punishable under Section 67 of the I.T.Act. On close analysis of the specific allegations made in the complaint (extracted supra), they are not pointing out any sex, thereby the acts of Byreddy Siddarth Reddy and others would not fall within the ambit of Section 67 of the I.T.Act.
When the gist of the postings posted in Facebook, Twitter etc. do not fall within the meaning of the "obscenity", non- registration of crime against Byreddy Siddarth Reddy and others (referred above) for the offence punishable under Section 67 of the I.T.Act by respondent Nos.2 to 4 cannot be described as disowning their responsibility to discharge public duty being public officers to issue a Writ of Mandamus. Therefore, non-registration of crime based on the allegations made in the complaint for the offence MSM,J WP_17635_2019 17 punishable under Section 67 of the I.T.Act cannot be a ground to issue a direction while exercising power of judicial review under Article 226 of the Constitution of India.
As discussed above, the postings by Byreddy Siddarth Reddy and others may constitute an offence punishable under Section 500 and 506 of I.P.C., but not an offence punishable under Section 67 of the I.T.Act. Since the offences punishable under Section 500 and 506 of I.P.C. are not cognizable, non-registration of crime against Byreddy Siddarth Reddy and others is not an illegality to issue a direction to the respondents to register a crime and investigate into by applying the principles laid down in "Lalita Kumari v. Government of Uttar Pradesh" (referred supra).
Learned Government Pleader for Home raised several other contentions and mainly contended that when the police refused to register a crime, course open to the petitioner is to file a private compliant before the jurisdictional Magistrate and relied on several judgments viz. "Sakiri Vasu v. State of Utter Pradesh6", "Doliben Kantilal Patel v. State of Gujarat7", "Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage8", "Fr.Sebastian Vadakkumpadan v. Shine Varghese9" and "St.John Society for Development Services v. State10" But they are not required to be dealt with, in view of my findings in the earlier paragraphs.
In view of my foregoing discussion, I find no ground to issue any direction to respondent Nos.2 to 4 to register crime against 6 (2008) 2 SCC 409 7 (2013) 9 SCC 447 8 (2016) 6 SCC 277 9 (2018) 3 KLT 177 10 2019 SCC OnLine Mad 1141 MSM,J WP_17635_2019 18 Byreddy Siddarth Reddy and others. Consequently, the writ petition is liable to be dismissed.
In the result, the writ petition is dismissed. No costs. The miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 03.12.2019 Ksp