Madras High Court
Gayathri Raguramm vs A.Kasi on 9 October, 2023
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.11241 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.10.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.11241 of 2021
and Crl.M.P.Nos.6576 & 6577 of 2021
Gayathri Raguramm ...Petitioner
Vs.
A.Kasi ... Respondent
PRAYER : Criminal Original Petitions filed under Section 482 of Cr.P.C.,
to call for the records relating to private complaint filed by the
complainant in C.C.No.1583 of 2021 on the file of the learned XXIII
Metropolitan Magistrate, Saidapet, Chennai-15, and quash the same as
against the petitioner.
For Petitioner : Mr.S.Shanmugavelayutham,
Senior Counsel
For Mr.T.Vijayaragavan
For Respondent : No appearance
ORDER
This Criminal Original Petition has been filed to quash the proceedings in C.C.No.1583 of 2021 on the file of the learned XXIII Page 1 of 15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11241 of 2021 Metropolitan Magistrate, Saidapet, Chennai-15, thereby taken cognizance for the offences under Sections 294(b), 506(ii) of IPC and Section 64A and C of the Information and Technology Act 2000, as against the petitioner.
2. The respondent lodged private complaint under Section 199 of Cr.P.C., for the offence punishable under Sections, 499, 294(b), 506(i) of IPC. The respondent alleged that the petitioner twitted in her twitter account as against the President of Viduthalai Siruthaigal Katchi with a view to defame and to cause disrespect to the image of the political leader among the general public. She made twitter in her twitter account as follows:-
@jpUkhtstid v';F fz;lhYk;
,e;Jf;fs; brUg;ghy; mof;fDk;@
@etk;gh; 27y; 10/00 kzpf;F bkhpdhtpw;F
tUfpnwd;/ ijhpak; ,Ue;jhy; nehpy; te;J
vd;id kpul;L';fs;@
“The scum Thirumavalavan as has know balls to face me directly. I request all Hindus to send him a madisar, not saree” Page 2 of 15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11241 of 2021 The above twitter caused irreparable damage to the reputation of the President of the political party. In support of the said complaint, the respondent had examined P.W.1 to P.W.3 and his sworn statement was also recorded. On the strength of the statement, the trial Court had taken cognizance for the offence under Sections 294(b), 506(ii) of IPC and Section 64A and C of the Information and Technology Act 2000.
3. The learned Senior Counsel appearing for the petitioner submitted that the petitioner is an office bearer of Bharathiya Janatha Political party and also holding Tamil Nadu State President of Art and Culture Cell. She is also an actress in film industries for the past several years. The president of the political party made allegation against Hindus and Hindu families and touch the religious sentiments of the Hindus and Hindu women. It was released on 15.11.2019 in You tube. On seeing the said video, the petitioner was very much offended and since the remarks were highly controversial and offended the sentiments of the hindu women and religion. Therefore, the petitioner retorted and resisted for the said allegation through her twitter account. She twitted that all hindus must slipper, if you see him anywhere wandering and she had posted Page 3 of 15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11241 of 2021 cheppal symbol. Therefore, she had no intention to cause any injury to him or to his reputation or property by making the above statement. Only to retort by protest, she twitted like that and it is not in defamatory the political leader in any manner.
3.1. That apart, this twitter did not constitute any offence under Section 294(b) and 506(i) of IPC. In this regard, the petitioner also had lodged complaint before the National Commission for Women, Government of India, New Delhi and it is pending. In fact, the political leader of the political party had sought for apology and thereafter, the petitioner also had sought for apology. Thereafter, the present impugned complaint has been lodged that too not by the political leader and by the respondent who no where connected to the alleged political leader. Therefore, the trial Court ought not to have taken cognizance.
3.2. In this regard, the learned Senior Counsel relays upon the judgment of this Court reported in 2000 (2) Law Weekly Crl. 646 in the case of Dr.Subramanianswamy Vs. State which held that both the elements of mensrea and actus are missing and actus reus is lacking in Page 4 of 15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11241 of 2021 the instant case to warrant the initiation of the criminal proceedings and mere mensrea is not sufficient to attract the commission of offence. In another case reported in 2010(2) SCC Crl. 1299 in the case of S.Khushboo Vs. Kanniammal, the Hon'ble Supreme Court of India held that it is not the task of the criminal law to punish individuals merely for expressing unpopular views. The threshold for placing reasonable restrictions on the freedom of speech and expression is indeed a very high one and there should be a presumption in favour of the accused in such cases. The initiation of a criminal trial is a process which carries an implicit decree of coercion and it should not be triggered by false and frivolus complaints, amounts to harassment and humiliation to the accused. As stated supra, both sought for apology for their statements. Even then, the respondent without any locus lodged the complaint.
4. Heard the learned Senior Counsel appearing for the petitioner. Though notice served on the respondent and the counsel engaged on his behalf, no one is appeared before this Court. Page 5 of 15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11241 of 2021
5. It is relevant to extract the provision under Section 499 of IPC as follows :-
“499. Defamation — Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.” Thus, it is amply clear that the accused must either intend to harm the reputation of a particular person or reasonably know that his/her conduct could cause such harm.
6. On perusal of the complaint under challenge in this petition, there is neither any intention on the part of the petitioner to cause harm to the reputation of the respondent or his political leader. In short, both elements i.e., mensrea and actus reus are missing in the present impugned complaint. In respect of the offence of defamation, Section 199 of Cr.P.C., mandates that the trial Court can take cognizance of the offence only upon receiving a complaint by a person who is aggrieved. This limitation on the power to take cognizance of defamation serves the Page 6 of 15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11241 of 2021 rational purpose of discouraging the filing of frivolous complaints which would otherwise clog the trial Courts. There is some room for complaints to be brought by persons other than those who are aggrieved, for instance when the aggrieved person has passed away or is otherwise unable to initiate legal proceedings.
7. However, in the case on hand, admittedly the respondent is not an aggrieved person. That apart, there was no grievance in view of the twitter made by the petitioner to the respondent herein. Further the President of the political party is very much available and he did not even chose to prefer any complaint against the petitioner. That apart, the respondent also failed to prove that only with the consent or authorization of the aggrieved person, he lodged complaint. The person aggrieved means a person who is injured or one who is adversely affected in a legal sense.
8. In this regard, it is relevant to rely upon the judgment reported in 2010(2) SCC Crl. 1299 in the case of S.Khushboo Vs. Kanniammal, as follows :-
Page 7 of 15
https://www.mhc.tn.gov.in/judis Crl.O.P.No.11241 of 2021 “41. This Court in G. Narasimhan case further noted that the news item in question did not mention any individual person nor did it contain any defamatory imputation against any individual. Accordingly, it was held that the complainant wa not a "person aggrieved"
within the meaning of Section 198 Cr.P.C., 1898. The Court also took note of Explanation 2 to Section 499 IPC which contemplates defamation of "a company or an association or any collection of persons as such".
Undoubtedly, the Explanation is wide but in order to demonstrate the offence of defamation, such a collection of persons must be an identifiable body so that it is possible to say with precision that a group of particular persons, as distinguished from the rest of the community stood defamed. In case the identity of the collection of persons is not established so as to be relatable to the defamatory words or imputations, the complaint is not maintainable. In case a class is mentioned, if such a class is indefinite, the complaint cannot be entertained. Furthermore, if it is not possible to ascertain the composition of such a class, the criminal prosecution cannot proceed.
42. While deciding the case, this Court in G. Narasimhan placed reliance on the judgment of the House of Lords in Knupffer v. London Express Newspaper b Ltd., wherein it had been held that it is an Page 8 of 15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11241 of 2021 essential element of the cause of action for defamation that the words complained of should be published "of the complainant/plaintiff". Where he is not named, the test would be whether the words would reasonably lead people acquainted with him to the conclusion that he was the person referred to. In fact, it is the reputation of an individual person which must be in question and only such a person can claim to have "a legal peg for a justifiable claim to hang on".
9. Further it is not the task of the criminal law to punish individuals merely for expressing unpopular views. The threshold for placing reasonable restrictions on the freedom of speech and expression is indeed a very high one and there should be a presumption in favour of the accused in such cases. It is only when the complainants produce materials that support a prima facie case, than the trial Court can proceed to take cognizance of the said case.
10. Insofar as the offence under Section 506(i) of I.P.C is concerned, to attract the offence, threat and intention to cause an alarm are main ingredients. The third ingredient is that the intention must be to Page 9 of 15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11241 of 2021 cause any 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, subsequent to the main ingredients. Whereas in the case on hand, even according to the case of the prosecution, the alleged threats issued by the petitioner were only empty threats and they had no effect on the complainant.
11. In this regard, It is relevant to rely upon the judgment of this Court made in Crl.O.P.(MD)No.11030 of 2014 in the case of Abdul Agis Vs. State through the Inspector of Police, which reads as follows:-
“7.It is seen from the statements recorded under Section 161(3) of Cr.P.C. of the second respondent/ defacto complainant that it does not contain any obscene words, which were uttered by the petitioner herein and the entire allegations are very simple in nature. It is also seen from the statement of one Uthami, that the petitioner threatened the defacto complainant with dire consequences when he dashed the defacto complainant. The entire allegations are trivial in nature. Further, to attract the offence under Section 506(i) of I.P.C., there was a threatening only by words. As pointed by the learned counsel appearing for the petitioner, the threat should be a real one and not just a mere word when the petition uttering does not exactly mean what he says and Page 10 of 15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11241 of 2021 also when the person to whom threat is launched does not feel threatened actually. Therefore, the offences under Sections 294(b) and 506(i) of I.P.C. are not made out as against the petitioner herein and also the entire criminal proceedings is clear an abuse of process of Court. Therefore, this Court is inclined to quash the entire proceedings.”
12. To attract the offence under Section 294(b) of IPC, there must be an uttering of words to affect the person who lodged the complaint. In this regard it is relevant to extract the Section 294(b) of IPC, as follows :-
"294. Obscene acts and songs —Whoever, to the annoyance of others— (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both."
Admittedly, there is absolutely no words uttered by the petitioner as such to constitute the offence under Section 294(b) of IPC, there is no averments and allegations. Further the charges do not show that on Page 11 of 15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11241 of 2021 hearing the obscene words, which were allegedly uttered by the petitioner, the witnesses felt annoyed. No one has spoken about the obscene words, they felt annoyed and in the absence of legal evidence to show that the words uttered by the petitioner annoyed others, it can not be said that the ingredients of the offence under Section 294(b) of IPC is made out.
13. It is relevant to rely upon the judgment reported in 1996(1) CTC 470 in the case of K.Jeyaramanuju Vs. Janakaraj & anr., which held as follows :-
"To prove the offence under Section 294 of IPC mere utterance of obscence words are not sufficient but there must be a further proof to establish that it was to the annoyance of others, which is lacking in the case."
The above judgment is squarely applicable to the present case and therefore, the offence under Section 294(b) of IPC is not at all attracted as against the petitioners.
Page 12 of 15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11241 of 2021 Page 13 of 15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11241 of 2021
14. In view of the above discussions, the entire proceedings as against the petitioner is vitiated and it cannot be sustained. Accordingly, the proceedings in C.C.No.1583 of 2021 on the file of the learned XXIII Metropolitan Magistrate, Saidapet, Chennai-15, is hereby quashed and the Criminal Original Petition stands allowed. Consequently, connected miscellaneous petitions are closed.
09.10.2023 Internet : Yes Index : Yes/No Speaking/Non speaking order rts To
1. The XXIII Metropolitan Magistrate, Saidapet, Chennai-15.
Page 14 of 15 https://www.mhc.tn.gov.in/judis