Madras High Court
Senthil vs The State Represented By on 8 April, 2022
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.04.2022
CORAM
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.O.P(MD).Nos.12404 and 13535 of 2017
and
Crl.M.P(MD).Nos.8574 and 9097 of 2017
1.Senthil,
S/o.Ramamoorthy ... Petitioner
in Crl.O.P(MD).No.12404 of 2017
2.T.T.V.Dhinakaran,
S/o.T.Vivek Anandan ... Petitioner
in Crl.O.P(MD).No.13535 of 2017
Vs
1.The State Represented by
The Inspector of Police,
City Crime Branch,
Trichy City.
(Crime No.43 of 2017)
2.P.Kumar,
S/o.Palanivel ... Respondents in both cases
Common Prayer: This Criminal Original Petitions filed under Section 482 of
Criminal Procedure Code, to call for the First Information Report dated
31.08.2017 in Crime No.43 of 2017 on the file of the Inspector of Police, City
Crime Branch, Trichy City and quash the same as illegal and devoid of merits.
https://www.mhc.tn.gov.in/judis
2
For Petitioners : Mr.C.Subramanian
For Respondents :
For R1 : Mr.A.Gokulakrishnan
Additional Public Prosecutor
For R2 : No appearance.
COMMON ORDER
These Criminal Original Petitions have been filed, to call for the First Information Report dated 31.08.2017 in Crime No.43 of 2017 on the file of the first respondent, the Inspector of Police, City Crime Branch, Trichy City for the offences under Sections 294(b), 153, 506(i) and 109 of I.P.C.
2. Brief facts leading to filing of the present Criminal Original Petitions are as under:-
i) The second respondent/de facto complainant, a Member of the Parliament from Trichy Constituency, lodged a complaint before the first respondent police on 31.08.2017, alleging that on 31.08.2017 at about 2.00 pm, while he was at his home watching Polimer News Channel, he had seen that one Senthil (A1), a comedy actor had given an interview to the news channel by standing outside the house of one T.T.V.Dinakaran (A2), a former Member of the Parliament at the instigation of the said T.T.V.Dinakaran (A2) abusing the second respondent/de facto complainant with filthy language and intimidating him by calling him singularly.
https://www.mhc.tn.gov.in/judis
ii) Alleging that the interview given by A1 was not only with an 3 intention to cause disrepute to the de facto complainant, but also to provoke the supporters of T.T.V.Dinakaran (A2) as against the second respondent/de facto complainant, the complainant had sought for initiating action against A1 and for having given such an interview and against A2, who had instigated A1.
iii) The complaint has been registered as FIR in Crime No.43 of 2017 on the file of the first respondent.
iv) Seeking to quash the said criminal proceedings, the present Criminal Original Petitions have been filed by A1 and A2.
3. The submissions made by the learned counsel appearing for the petitioners are summarized hereunder:-
i) The case has been registered on account of political vendetta. A1 in this case is a Tamil Cinema Comedian and a party functionary. After the demise of the former Chief Minister, J.Jayalalithaa, there was a split in the party and A2, who is a former Member of Parliament, had defected from AIADMK party and he was heading a faction of supporters from the same party. A1, who is also a party functionary, is alleged to be a supporter of A2.
A1 is alleged to have made a speech in front of the house of A2. The edited version of the alleged speech in part was said to have been telecasted by a private news channel and that the second respondent/de facto complainant, who is said to have watched the news item, had given a complaint. Even assuming https://www.mhc.tn.gov.in/judis 4 for a moment that A1 had delivered the speech, the complaint discloses neither the full speech of A1 nor the ingredients of offences for which the case is registered for.
ii) In order to make out a case for the offence under Section 294(b) of IPC, there should be material evidence to show that the offender had done any obscene act in any public place or sung, recited or uttered any obscene song, ballad or words, in or near any public place, causing annoyance to others. Other than the allegation that A1, while delivering the speech, had addressed the second respondent/de facto complainant singularly, no other material has been shown that A1 had committed any offence punishable under Section 294(b) of IPC.
iii) There is also absolutely no material that the petitioner had wantonly given provocation with an intention to cause riot. Further, there is also no material to show that A1 had criminally intimidated the second respondent/de facto complainant. In order to make out a case for the offence under Section 506(i) of IPC, the threat should have been a real one and the petitioner also should have stated that on such intimidation, he feared threat to his life.
iv) Sofar as A2 is concerned, other than that A1 is stated to have made a speech in front of the house of A2, there is absolutely no material to https://www.mhc.tn.gov.in/judis 5 show that A2 had abetted A1 to do the Act.
v) Even as per the compliant, A1 is stated to have delivered the speech at Chennai and the complaint has been given by the second respondent/de facto complainant who is stated to have watched the news item at Trichy and thereby the registration of the case by the respondent police is without any jurisdiction.
vi) The complaint is an outcome of political vendetta and the case has been registered by the respondent police on such a complaint lodged by the de facto complainant, a Member of Parliament belonging to the then ruling party, having been antagonized against the second petitioner on account of his political activities against the interest of the then ruling party and therefore, the registration of FIR and further proceedings is nothing but an abuse of process of law and it is liable to be quashed.
4. The learned counsel for the petitioners, in support of his contention, has relied on the following decisions:-
(i) Pawan Kumar Vs State of Haryana and another, (1996) 4 SCC 17.
(ii) Murugavel Vs State represented by the Inspector of Police, All Women Police Station, 2019 SCC OnLine Mad 26824.
(iii) State of Haryana and others Vs Bhajan Lal and others, 1992 https://www.mhc.tn.gov.in/judis 6 Supp (1) SCC 335.
(iv) Thavalingam and another Vs State by Inspector of Police, 2019 SCC OnLine Mad 33284.
5. The first respondent police had filed separate counter affidavits in both the petitions, however, taking similar contentions, the crux of which is as under:-
i) The ground of jurisdiction taken by the petitioners does not arise as the interview given by A1 had been telecasted in the news channel throughout the State and therefore, the respondent police has got jurisdiction to register the FIR.
ii) There is no illegality in registering the FIR without conducting preliminary enquiry as claimed by the petitioners as the speech uttered by A1 in the interview given by him was sufficient for the investigating authority to register the FIR.
iii) The speech given by A1 had caused damage to the reputation of the de facto complainant in front of the society and due to political rivalry, the speech was given by A1 at the instigation of A2 with an intention to promote feelings of enmity and hatred between different classes of people and thereby, the offences punishable under Sections 294(b) and 153 IPC are made out.
iv) Since both petitioners belong to rival group and so many political https://www.mhc.tn.gov.in/judis 7 interested groups are acting one against another, the speech delivered by A1 would definitely be a life threat against the de facto complainant and thereby the offence punishable under Section 506(ii) IPC is also made out.
v) It is a well settled principle that whether the ingredients of the offences have been made out or not, is only a question of fact and that can be decided only at the time of trial, after letting oral evidence. There is no ground for quashing of FIR at the early stage of investigation as the FIR contains serious allegations and therefore, the petitions seeking quashment are liable to be dismissed.
6. The second respondent/de facto complainant had also filed separate counter affidavits in both the petitions reiterating the stand taken by the first respondent police.
7. Learned Additional Public Prosecutor for the first respondent would submit that A1 had given a TV interview in front of the house of A2. He would further submit that A1 had abused the second respondent/de facto complainant by calling him in singular terms and had called the second respondent/de facto complainant a vagabond. He would further submit that A1 had delivered the speech at Chennai in front of the house of A2 and the second respondent/de facto complainant had watched the news item at Trichy in his residence. He would further submit that investigation in this case is still https://www.mhc.tn.gov.in/judis 8 pending.
8. Though the second respondent/de facto complainant is being represented by a learned counsel, there is no representation for the second respondent/de facto complainant. On the earlier occasion also, there was no representation for the second respondent and thereby this Court had posted the case under the caption 'for orders' today. Even today, there is no representation for the second respondent/de facto complainant and thereby, the court had decided to proceed with the case with the available materials.
9. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the first respondent and perused the materials available on record.
10. Based on the complaint given by the second respondent/de facto complainant, a case has been registered by the first respondent against the petitioners for the offences under Sections 294(b), 153, 506(i) and 109 of IPC.
11. For ready reference, the legal provisions are extracted hereunder:-
"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 utter 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.
https://www.mhc.tn.gov.in/judis 9
153. Wantonly giving provocation with intent to cause riot - if rioting be committed - if not committed -
Whoever, malignantly, or wantonly, by doing anything which is illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed, shall, if the offence of rioting be committed in consequence of such provocation, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both; and if the offence of rioting be not committed, with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
506. Punishment for criminal intimidation - Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc - and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment - Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express https://www.mhc.tn.gov.in/judis 10 provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence."
12. Now coming to the complaint, A1 is alleged to have given an interview to a private news channel and it had been telecasted on 31.08.2017 and it was watched by the second respondent/de facto complainant. As per the complaint, A1 is stated to have addressed the second respondent/de facto complainant in singular terms and called him a vagabond in order to spoil his name and to instigate the supporters of A2 to cause rioting against him. Even as per the complaint of second respondent/de facto complainant, he had seen the news telecast at his house in Trichy. The entire speech had not been disclosed in the complaint and that even as per the FIR, there is nothing to suggest that A2 had abetted A1 to do the offence.
13. In order to make out a case for the offence under Section 294(b) of IPC, there should be averment that the accused should have sung, recited or uttered any obscene song, ballad or words, in or near any public place, to cause annoyance to others. In this case, there is no averment that A1 had caused annoyance to others. Further, the FIR also did not state that A1 had done any illegal act malignantly or wantonly, to provocate any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed. Further, for an offence of criminal intimidation, the threat https://www.mhc.tn.gov.in/judis 11 should have been a real one and the complainant also should have stated that on such intimidation, he feared threat to his life.
14. The Hon'ble Apex Court in Pawan Kumar Vs State of Haryana and another, (1996) 4 SCC 17, in Paragraph Nos.8 & 9, has held as follows:-
"8. Section 294 of the Indian Penal Code reads 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 utter 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.
9. In order to secure a conviction the provision requires two particulars to be proved by the prosecution, i.e., (i) the offender has done any obscene act in any public place or has sung, recited or uttered any obscene songs or words in or near any public place; and (ii) has so caused annoyance to others. If the act complained of is not obscene, or is not sung, recited or uttered in or near any public place, or that it causes no annoyance to others, the offence is not committed."
15. Further, in this case, there is absolutely no material to show that A1, by delivering the speech, caused annoyance to others, more particularly, when the speech is stated to have been made at Chennai and it was watched by the second respondent/de facto complainant at Trichy. Further, the second https://www.mhc.tn.gov.in/judis 12 respondent/de facto complainant has made a vague or general statement in the FIR that the accused uttered obscene words and it would not be enough to constitute the offence either under Section 294(b) of IPC or under Section 153 of IPC.
16. This Court, in Murugavel Vs State represented by the Inspector of Police, All Women Police Station, 2019 SCC Online Mad 26824, has held as under:-
"4. ........
9. This Court in a decision in Noble Mohandass Vs State. 1989 Crl.J 669 has held as follows:
Further for being an offence under Section 506(ii) which is rather important offence punishable with imprisonment which may extend to seven years, the threat should be a real one and not just a mere word when the person uttering it does exactly mean what he says and also when the person at whom threat is launched does not feel threatened actually. In Fact PW 1 when she filed the complaint to the police office, did not express any fear for her life nor asked for any protection.
10. In a similar offence, the Punjab and Haryana High Court quashed the proceedings in respect of the offence under Section 506(ii) IPC in a case in Usha Bala v.State of Pubjab (P&H), 2002(2) C.C. Cases 320(P&H), that "Empty threat does not prima facie mean that the case U/s.506, IPC is made out against the petitioner. Hence, in face no case is made out against the petitioner.
https://www.mhc.tn.gov.in/judis 13 Consequently FIR No.313 dated 15.07.1999 U/s.406/498(A) IPC of Police Station, Sadar, Patiala is quashed qua the petitioner only"
5. He also relied on the judgment of the Apex Court in the case of Vikram Johnar vs State of Uttar Pradesh and another in Criminal Appeal No.759 of 2019.
"27. Now, reverting back to Section 506, which is offence of criminal intimidation, the principles laid down by Fiona Shrikhande (supra) has also to be applied when question of finding out as to whether the ingredients of offence are made or not. Here, the only allegations is that the appellant abused the complainant. For proving an offence under Section 506 IPC, what are ingredients which have to be proved by the prosecution? Ratanlal & Dhirajlal on Law of Crimes, 27th Edition with regard to proof of offence states following:
The prosecution must prove
(i) That the accused threatened some person
(ii) That such threat consisted of some injury to his person, reputation or property of some one in whom he was interested
(iii) That he did so with intent to cause alarm to that person; or to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of such threat".
17. The Hon'ble Apex Court in State of Haryana and others Vs Bhajan Lal and others, 1992 Supp (1) SCC 335, in Paragraph No.102, has https://www.mhc.tn.gov.in/judis 14 held as under:-
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
https://www.mhc.tn.gov.in/judis 15 (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
18. In Thavalingam and another Vs State by Inspector of Police, 2019 SCC OnLine Mad 33284, this court has held as under:-
"26. Further, in order to prove the offence under Section 294(b) of IPC, the Prosecution should prove the necessary ingredients of Section 294(b) of IPC, viz. (i) an obscene act must have been https://www.mhc.tn.gov.in/judis 16 done in a public place, or (ii) acts were done by the accused causing annoyance to others.
27. In (1996) 4 SCC 17 (Pawan Kumar v. State of Haryana), the Honourable Supreme Court had held thus:—
9. In order to secure a conviction the provision requires two particulars to be proved by the prosecution, i.e. (i) the offender has done any obscene act in any public place or has sung, recited or uttered any obscene songs or words in or near any public place; and (ii) has so caused annoyance to others. If the act complained of is not obscene, or is not done in any public place, or the song recited or uttered is not obscene, or is not sung, recited or uttered in or near any public place, or that it causes no annoyance to others, the offence is not committed. ….”
28. In (2010) 8 SCC 628 (Madan Mohan Singh v. State of Gujarat), it was held that where FIR itself did not have any material or was not capable of being viewed as having material for offence under Sections 306 and 294(b) IPC, the First Information Report was liable to be quashed.
29. In 2019 SCC OnLine Ker 2112 (James Jose v. State of https://www.mhc.tn.gov.in/judis 17 Kerala), it was held as under:— “6. On a perusal of Annexure A2, it would reveal that none of the ingredients under Section 294(b) of the Penal Code, 1860 is attracted. The vague allegation or general statement that there was utterance of obscene words in the FIR is not enough to constitute an offence under Section 294(b) of the Penal Code, 1860. In order to attract Section 294(b) IPC, the place of occurrence should be a “public place” or near a “public place”. The allegation against the petitioner is that he has threatened the victim and uttered obscene words by using mobile phone and that will not tantamount to prove that he called obscene words in a public place or near a public place. So, the ingredients as contemplated under Section 294(b) of the IPC is not attracted…”"
19. In this case, admittedly the allegations made in the complaint or in the FIR, even if they are taken at their face value and accepted in their entirety, do not, prima facie, constitute any offence or make out a case against the accused. Further, the complaint is manifestly attended with mala fide and the proceeding is maliciously instituted with an ulterior motive for wreaking https://www.mhc.tn.gov.in/judis 18 vengeance on the accused and with a view to spite him due to private and personal grudge. The case of the petitioners falls within the illustration category Nos.1 and 7 of Paragraph 102 in Bajan Lal Case (referred to supra).
20. In view of the above, this Court is of the view that the proceedings in Crime No.43 of 2017 on the file of the first respondent is nothing but an abuse of process of law and is liable to be quashed and accordingly, it is quashed. The Criminal Original Petitions stand allowed. Consequently, the connected Criminal Miscellaneous Petitions are closed.
08.04.2022.
Index : Yes/No
Internet : Yes/No
Speaking/Non-speaking order
rgm/arb/ssk.
To
1.The Inspector of Police,
City Crime Branch, Trichy City.
2.The Public Prosecutor,
High Court of Madras.
https://www.mhc.tn.gov.in/judis
19
A.D.JAGADISH CHANDIRA,J.
rgm/arb/ssk
Crl.O.P(MD).Nos.12404 & 13535 of 2017
and
Crl.M.P(MD).Nos.8574 & 9097 of 2017
08.04.2022
https://www.mhc.tn.gov.in/judis