Telangana High Court
Dharmapuri Arvind vs The State Of Telangana on 18 December, 2024
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.1579 OF 2023
ORDER:
Heard Smt.B.Rachna Reddy, learned Senior Counsel representing Mr.Rahul Yerramreddy, learned counsel for the petitioner and Mr.Syed Yasar Mamoon, Additional Public Prosecutor appearing on behalf of respondent No.1 - State.
2. This Criminal Petition is filed under Section - 482 of the Code of Criminal Procedure, 1973, to quash the proceedings in C.C. No.355 of 2022 pending on the file of Special Judicial Magistrate of the First Class at Hyderabad.
3. The petitioner herein is arraigned as sole accused in the said case. The offences alleged against him are under Sections 504, 505(2) and 153A of the Indian Penal Code, 1860 (for short 'IPC') and Section 67 of the Information Technology Act, 2000 (for Short 'IT Act'). 2
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4. In the complaint of respondent No.2, the allegations leveled against the petitioner are as follows: Respondent No.2 is the Social Media Convener of Bharat Rashtra Samithi Party (BRS Party), BRS Party Office at Banjara Hills and he is a resident of Bandlaguda, Nagole, Hyderabad. He found the petitioner morphed the cartoon of Mr.Kalvakuntla Chandrasekhar Rao, the then Chief Minister of Telangana State, originally created by cartoonist Mrutyunjay, while he was working at his office. The same was posted and published by the petitioner in his social media account i.e., Facebook, which creates ruckus and promoting enmity between different groups and an imbalance in the harmony of the peaceful state.
5. Respondent No.2 lodged a complaint before P.S. Vanasthalipuram, who in-turn, transferred the same to P.S.Banjara Hills on the point of jurisdiction.
6. During the course of investigation, the Investigating Officer recorded the statement of respondent No.2 as LW.1. LWs.2 and 3 are circumstantial witnesses. LW.4 is the 3 KL,J Crl.P. No.1579 of 2023 Inspector of Police, P.S.Vanasthalipuram, who registered Zero First Information Report (FIR). LWs.5, 6 and 7 are the Investigating Officers.
7. Respondent No.2-LW.1 specifically stated before the Investigating Officer that the petitioner intentionally posted the said message which disturbed the law and order and also the feelings of the people of Telangana.
8. LW.2 is the friend of LW.1 and he also specifically stated that he came to know about the message posted by the petitioner in his facebook account through LW.1. He has gone through the said message and it is abusive and defaming the then Chief Minister. It dents the feelings of the party workers and fans of the Chief Minister. It also disturbs the law and order in the State.
9. LW.3 is also another friend of respondent No.2 and he also spoke in the very same lines as spoken by LW.2.
10. LW.4, who received complaint from respondent No.2, registered Zero FIR and the same was transferred to P.S.Banjara Hills on the point of jurisdiction. 4
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11. The Investigating Officer also considered the memo dated 28.12.2021 issued by the Chief Secretary, it is relevant and it is extracted below:
" In the circumstances reported by the Director, Prohibition & Excise, Hyderabad in the reference cited, Government, after careful consideration of the matter, hereby accord permission to the Director, Prohibition & Excise, Hyderabad, to permit the license holders of 2B (Bars), C1 Licensees (In-House) EP1 licensees (Event permit) and TD1 (In-House) licensees of Tourism Development Corporation to serve liquor up to 1.00 A.M on the intervening night of 31 December, 2021 and 1 January, 2022 end to keep A4 licenses (Retail Shops) open up to 12.00 midnight of 31.12.2021 on the eve of New Year's day celebrations in relaxation of the rules in Vogue, subject to observance of SOP for COVID-19.
2. The Director, Prohibition & Excise, Hyderabad, shall take necessary action in the matter, accordingly."
12. LW.5 Investigating Officer collected the certificate under Section 65(B)(4)(c) of the Indian Evidence Act, 1872 from respondent No.2. He has also secured the presence of LWs.2 and 3 and recorded their statements under Section 161 of Cr.P.C.
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13. LW.6 is the another Investigating Officer addressed a letter to the Commissioner of Police, Hyderabad, with a requisition to obtain permission from the Government of Telangana to prosecute the petitioner, who is a Member of Parliament from Nizambad Constituency. Government granted permission to prosecute the petitioner for the offences punishable under Sections 504, 505(2) and 153A of IPC and Section 67 of IT Act, vide G.O.Rt.No.358, dated 15.07.2022.
14. Thus, on consideration of the same, the Investigating Officer laid the charge sheet against the petitioner herein stating that the petitioner morphed the cartoon of the Chief Minister, originally created by cartoonist Mrutyunjay.
15. The petitioner morphed the cartoon of the Chief Minister with a beer bottle by morphing original cartoon has garnered several views between different groups and an imbalance in the harmony and created ruckus and promote enmity between different groups in the harmony of the peaceful state and the same was adversely affecting the 6 KL,J Crl.P. No.1579 of 2023 public order as the morphed cartoon is derogatory and insulting the then Chief Minister of the Telangana State. Therefore, the petitioner committed the offences punishable under Sections 504, 505(2) and 153A of IPC and Section 67 of IT Act.
16. Smt.B.Rachna Reddy, learned Senior Counsel appearing for the petitioner, contended that the contents of the charge sheet including the statements of LWs.1 to 4 lack ingredients of the aforesaid offences. The petitioner is a Member of Parliament from Nizambad Constituency and due to political rivalry, respondent No.2 lodged complaint against the petitioner herein.
17. According to learned Senior Counsel, respondent No.2 is a Social Media Convener of BRS Party and therefore, he has implicated the petitioner in a false case due to political rivalry. Even if the contents of the charge sheet are admitted to be true, there is no enmity between two groups, therefore, the ingredients of Section 153A of IPC are lacking. Without considering the said aspects, the 7 KL,J Crl.P. No.1579 of 2023 Investigating Officer laid charge sheet against the petitioner herein and it is an abuse of process of law. Therefore, proceedings in C.C.No.355 of 2022 are liable to be quashed. She has also placed reliance on the principle laid down by the Hon'ble Apex Court in Patricia Mukhim v. State of Meghalaya 1, Kollu Ankababu v. Tirupathi Ramesh 2, Asif Iqbal Naik v. State of Jammu and Kashmir 3, Tejinder Pal Singh Bagga v. State of Punjab 4, and Santanu Kumar Takri v. Gangadhar Nanda 5.
18. Whereas, Mr.Syed Yasoor Mamoon, learned Additional Public Prosecutor, would contend that LWs.1, 2 and 3 specifically stated about the message posted by the petitioner in his facebook account and perusal of the same would reveal that the petitioner intentionally posted the said posting in facebook which created ruckus and also promote enmity between two groups i.e., BRS party workers, supporters of Mr.Kalvakuntla Chandrasekhar Rao 1 2021 SCC Online SC 258 2 2022 SCC Online AP 2812 3 2023 SCC Online J&K 65 4 2022 SCC Online P&H 2655 5 2022 SCC Online Ori 3911 8 KL,J Crl.P. No.1579 of 2023 and the people who are opposing Mr.Kalvakuntla Chandrasekhar Rao and it also affected the public order. The morphed cartoon is derogatory and insulting in nature. Therefore, on consideration of the said aspects and the statements of LWs.1 to 4, the Investigating Officer laid charge sheet against the petitioner.
19. Learned Additional Public Prosecutor further submits that the contents of the charge sheet constitute the offences alleged against the petitioner herein. The contentions of the learned Senior Counsel appearing for the petitioner are triable issues, the petitioner has to take the said defences before the trial Court and it is for the trial Court to consider the same. Therefore, the proceedings in C.C.No.355 of 2022 cannot be quashed on the same grounds. He has also placed reliance on the principle laid down by the Hon'ble Apex Court in Pravasi Bhalai Sangathan v Union of India 6, Kedar Nath Singh v. State of Bihar 7 and Kumar Vishwas v. State of Punjab 8. 6 (2014) 11 Supreme Court Cases 477 7 1962 SCC Online SC 6 8 2022 SCC Online P&H 2637 9 KL,J Crl.P. No.1579 of 2023
20. The gist of the message posted by the petitioner in his aforesaid Facebook account is as follows: 10
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21. It is not in dispute that the petitioner herein is a Member of Parliament in Lok Sabha from Nizamabad Parliamentary Constituency. He defeated the daughter of Mr.Kalvakuntla Chandrasekhar Rao in the parliament elections held in 2014. Even according to the petitioner, he carried out several social activities for the development of the society.
22. In paragraph No.3 of the criminal petition, the petitioner specifically state that a cartoon of Mr.Kalvakuntla Chandrasekhar Rao, the then Chief Minister, Telangana State, is going viral in social media, which is originally created by a cartoonist Mrutyunjay. The said cartoon description will be like this a 'Shanknath' (Conch) was placed in the hands of Mr.Kalvakuntla Chandrasekhar Rao cartoon which was circulating in the social media.
23. In paragraph No.4 of the criminal petition, he has specifically stated about the memo dated 28.12.2021 issued by the Government of Telangana granting 11 KL,J Crl.P. No.1579 of 2023 permission to sell/serve liquor by 2B(Bar), C1 (In House), EP1(Event Permit) and TD1 (In House) licenses of Tourism Development Corporation upto 01.00 A.M. on the intervening night of 31st December, 2021 and 1st January, 2022 and to keep the A4 licenses (Retails Shops) open upto 12.00 midnight of 31st December on the eve of New Year's day celebrations.
24. In paragraph No.5 of the Criminal Petition, it is stated that the cartoon of Mr.Kalvakuntla Chandrasekhar Rao, the then Chief Minister with 'Shanknath' (Conch) in his hands is morphed with alcohol bottle in his hand instead of 'Shanknath' (Conch). The morphed post was circulated on social media.
25. In paragraph No.6, it is stated by the petitioner that he is active in social media platforms such as 'twitter', 'facebook', etc. The petitioner, being the member of opposition party publishes various posts and contents questioning and criticizing the policies and actions of the Government and as part of the same, the petitioner while 12 KL,J Crl.P. No.1579 of 2023 going through the social media account in facebook has come across the aforementioned post. He had shared the same on the facebook account. Thus, he has admitted about posting of the said post in his facebook through the aforesaid account.
26. According to LWs.1 to 3, it is derogatory in nature, insulting the people of Telangana, apart from, Mr.Kalvakuntla Chandrasekhar Rao, the then Chief Minister. It also promotes enmity between two groups and an imbalance in the harmony and peace of the state and it adversely affect the public order. Therefore, the said act of the petitioner amounts to intentional insult with an intent to provoke the breach of the peace, engrave substance containing defamatory matter, promoting enmity between different groups, which are prejudicial to the maintenance of harmony. The same is obscene in electronic form.
27. In the light of the same, it is relevant to refer Sections 504, 505(2) and 153A of IPC and Section 67 of IT Act, and the same are extracted hereunder:
13
KL,J Crl.P. No.1579 of 2023 "504. Intentional insult with intent to provoke breach of the peace-Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
505(2). Statements creating or promoting enmity, hatred or ill-will between classes.-- Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different reli-gious, racial, language or regional groups or castes or communities, shall be punished with imprisonment which may extend to three years, or with fine, or with both.
153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.--
(1)Whoever--
(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of 14 KL,J Crl.P. No.1579 of 2023 enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or
(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, or
(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both. Offence committed in place of worship, etc.--
(2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine. 15
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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.
28. In Patricia Mukhim (supra), wherein the accused person was charge sheeted for the offences under Sections 153A, 500 and 505(1)(c) of IPC. The allegations leveled against him are that he uploaded a post on the Facebook condemning the assault committed by certain non-tribal youth on tribal boys in strong words. On consideration of the said facts, the Apex Court in paragraph No.13 held as follows:
13. In the instant case, applying the principles laid down by this Court as mentioned above, the question that arises for our consideration is whether the Facebook post 16 KL,J Crl.P. No.1579 of 2023 dated 04.07.2020 was intentionally made for promoting class/community hatred and has the tendency to provoke enmity between two communities. A close scrutiny of the Facebook post would indicate that the agony of the Appellant was directed against the apathy shown by the Chief Minister of Meghalaya, the Director General of Police and the Dorbar Shnong of the area in not taking any action against the culprits who attacked the non-tribals youngsters. The Appellant referred to the attacks on non- tribals in 1979. At the most, the Facebook post can be understood to highlight the discrimination against non- tribals in the State of Meghalaya. However, the Appellant made it clear that criminal elements have no community and immediate action has to be taken against persons who had indulged in the brutal attack on non-tribal youngsters playing basketball. The Facebook post read in its entirety pleads for equality of non-tribals in the State of Meghalaya. In our understanding, there was no intention on the part of the Appellant to promote class/community hatred. As there is no attempt made by the Appellant to incite people belonging to a community to indulge in any violence, the basic ingredients of the offence under Sections 153 A and 505 (1) (c) have not been made out. Where allegations made in the FIR or the complaint, even if they are taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the FIR is liable to be quashed.17
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29. In Bilal Ahmed Kaloo v. State of A.P. 9, the allegations leveled against the accused are that he was telling others that the Army personnel have been committing atrocities on Muslims in Kashmir. The offences alleged against him are under Sections 153A and 505(2) of IPC. On consideration of the said facts, the Hon'ble Apex Court held that the common feature in both sections being promotion of feeling of enmity, hatred or ill-will between different religious or racial or language or regional groups or castes and communities it is necessary that atleast two such groups or communities should be involved. Merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either of the two sections. The result of the said discussion is that appellant who has not done anything as against any religious, racial or linguistic or regional group or community cannot be held guilty of either the offence under Section 153A or under Section 505(2) of IPC. 9 1997 (7) SCC 431 18 KL,J Crl.P. No.1579 of 2023
30. In Asif Iqbal Naik (supra), the accused is a reputed journalist and associated with Early Times Newspaper, Jammu and Kashmir, as also with Times Now English News Channel and has broken down various stories of national importance. He has taken screen shot of a news bite in Early Times Newspaper of Kisthwar. The offences alleged against the petitioner therein were under Sections 504, 505, 506 and 336 of RPC. On consideration of the said facts and placing reliance on the judgments of the Hon'ble Supreme Court, the High Court of Jammu and Kashmir held that the complainant, who was also present in the Court, denied to have lodged any complaint so as to the base the impugned FIR, secondly, SHO in his status report has also stated that the complainant had not assisted with the investigation despite several requests and thirdly that the District Magistrate as an Executive Magistrate was not competent to issue directions for investigation of the case. On the said three grounds, High Court of Jammu and Kashmir quashed the proceedings against the accused therein.
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31. In Tejinder Pal Singh (supra), the petitioner was a Spokes-person of BJP-Delhi, he gave an interview in the media criticizing Mr.Arvind Kejriwal, the Chief Minister of Delhi. Therefore, a case was registered against him for the offences under Sections 153A, 505, 505(2) and 506 of IPC and on examination of the facts that Punjab and Haryana High Court held that the contents of the charge sheet lack the ingredients of the said offences against the petitioner therein.
32. In Santanu Kumar Takri (supra) the allegations leveled against the petitioner therein are that he addressed issues related to prevention of cruelty to animals delivered a speech stressed upon the demand of meat of the Indian cows and bulls abroad thereby committed an offence punishable under Section 505(2) of IPC. On consideration of the said facts, High Court of Orissa held that the contents of the charge sheet lack the ingredients of the offences alleged against the petitioner therein. 20
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33. In Pravasi Bhalai Sangathan (supra), the Hon'ble Supreme Court relied on a decision of 'Saskatchewan (Human Rights Commission) v. Whatcott 10. In the said Judgment, Supreme Court of Canada held that word "hatred" as is used in legislative provisions prohibiting hate speech. Three main prescriptions must be followed. First, Courts must apply the hate speech prohibition objectively. The question Courts must ask is whether a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred. Second, the legislative term "hatred" or "hatred or contempt" must be interpreted as being restricted to those extreme manifestations of the emotion described by the words "detestation" and "vilification". This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimisation and rejection that risk causing discrimination or other harmful effects. Third, Tribunals must focus their analysis on the effect of the expression at issue, namely whether it is likely to 10 (2013) 1 SCR 467 21 KL,J Crl.P. No.1579 of 2023 expose the targeted person or group to hatred by others. The repugnancy of the ideas being expressed is not sufficient to justify restricting the expression, and whether or not the author of the expression intended to incite hatred or discriminatory treatment is irrelevant. The key is to determine the likely effect of the expression on its audience, keeping in mind the legislative objectives to reduce or eliminate discrimination.
34. In Kedar Nath Singh v. State of Bihar 11 while upholding the constitutional validity of Section 505 of IPC has observed:
"It is only necessary to add a few observations with respect to the constitutionality of Section 505 of the Indian Penal Code. With reference to each of the three clauses of the section, it will be found that the gravamen of the offence in making, publishing or circulating any statement, rumour or report (a) with intent to cause or which is likely to cause any member of the Army, Navy or Air Force to mutiny or otherwise disregard or fail in his duty as such; or (b) to cause fear or alarm to the public or a section of the public which may induce the commission of an offence against the State or against public tranquility; or (c) to incite or which is likely to 11 AIR 1962 SC 955 22 KL,J Crl.P. No.1579 of 2023 incite one class or community of persons to commit an offence against any other class or community. It is manifest that each one of the constituent elements of the offence under Section 505 has reference to, and a direct effect on, the security of the State or public order. Hence, these provisions would not exceed the bounds of reasonable restrictions on the right of freedom of speech and expression. It is clear, therefore, that clause (2) of Article 19 clearly saves the section from the vice of unconstitutionality."
35. In Kumar Vishwas (supra), the petitioner therein, during Vidhan Sabha elections, gave a video interview, leveling imputations about the involvement of Mr.Arvind Kejriwal, Chief Minister of Delhi, with certain nefarious and anti-social elements. On the complaint lodged by the District Collector, a case was registered against the petitioner therein for the offences under Sections 153, 153A, 505, 505(2), 116, 143, 147, 323, 341 and 120B of IPC and Section 125 of the Representation of Peoples Act, 1951. On examination of the facts therein, the High Court of Punjab and Harayana held that the contents are lacking ingredients of the aforesaid offences against the petitioner. 23
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36. In the light of the law laid down in the aforesaid Judgments, it is relevant to note that the ingredients to attract the offence under Section 153A of IPC and the same are extracted hereunder:
"a) The actions should cause enmity between groups; Ill will against one group would not attract the above provisions;
b) These actions should be committed with the intention of causing such enmity;
c) This provision would be applicable only where enmity is caused on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever;
d) The term "or any other ground whatsoever" would have to be read in tandem with the preceding words and as such the scope of this term would be that the grounds would only have to be grounds akin to the preceding grounds set out in the provision;
e) The groups between whom such enmity or disharmony or hatred or ill-will is caused would be groups defined on the basis of their religion, race, language, place of birth, caste or community; and
f) Differences or ill-will caused between two groups which are not defined on the basis of the above requirements would not attract the provisions of Section 153-A IPC.24
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37. As discussed supra, in Bilal Ahmad Kaloo (supra), the Apex Court held that mens rea is an essential ingredient of offence under Section 505 RPC and as Section 505 RPC provides a reasonable restriction on the fundamental right to freedom of speech and expression, therefore, the same is required to be strictly construed. The intention to generate the consequences as contained in section 505 RPC must be forthcoming from the plain reading of the statement/report or rumour and should not be left at the discretion of a particular person. The said principle was also laid down by the High Court of Andhra Pradesh in Kollu Ankababu (supra).
38. As discussed supra, in the present case, the petitioner himself admitted about the posting of the aforesaid message in his facebook account. According to him, the said message was circulating in social media groups including facebook and on coming to know the same, he has posted the same in his facebook account. 25
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39. There is no dispute that respondent No.2 is a Social Media Convener of BRS Party. LWs.2 and 3 are his friends. They have also gone through the aforesaid post.
40. In fact, the said cartoon was originally created by Mr.Mrutyunjay, a renowned cartoonist. The allegations against the petitioner are that he has morphed the said cartoon and posted the same. Therefore, according to respondent No.2, the said post is derogatory and insulting the then Chief Minister and the same was also hurt the feelings of well-wishers of Mr.Kalvakuntla Chandrasekhar Rao and workers of BRS Party. It also hurts the feelings of the people of Telangana. Therefore, according to the prosecution, the said post created enmity between two groups i.e., well-wishers of Mr.Kalvakuntla Chandrasekhar Rao, workers of BRS Party, etc on one hand and opponents of Mr.Kalvakuntla Chandrasekhar Rao on the other.
41. It is the specific contention of respondent No.2 that the petitioner posted the said post in his facebook with an 26 KL,J Crl.P. No.1579 of 2023 intention to create hatred or ill-will among the people and it disturbs the law and order. According to the petitioner, there is no mens rea and he has not posted the same with an intention to create hatred or ill-will by promoting enmity between two groups. Further, the said aspect is a triable issue and the petitioner has to take the said defence during the trial and it is for the trial Court to consider the same. This Court cannot consider the said aspect of mens rea in a petition filed under Section 482 of Cr.P.C. Therefore, this Court is not inclined to quash the proceedings against the petitioner in C.C.No.355 of 2022 for the offence under Section 153A of IPC.
42. With regard to Section 504 of IPC, the ingredients are that there shall be intentional insult with an intention to provoke the breach of the peace. As discussed supra, according to respondent No.2 (LW.1), LWs.2 and 3, the aforesaid post is insulting in nature and it insulted the then Chief Minister, his well-wishers, family members, party workers and also the Telangana people. There is breach of peace. It was posted by the petitioner 27 KL,J Crl.P. No.1579 of 2023 intentionally with an intention to insult the then Chief Minister and thus it was provoking in nature. It also disturbed the peace and harmony in the Telangana. Therefore, this Court is of the considered view that prima facie, the contents of the charge sheet constitute the offence under Section 504 of IPC.
43. Section 505(2) of IPC deals with creating or promoting enmity, hatred or ill-will between the classes. As discussed supra, the aforesaid post, which in electronic form, created enmity between two groups i.e., well-wishers, family members of Mr.Kalvakuntla Chandrasekhar Rao, party workers of BRS Party and the opponents of Mr. Kalvakuntla Chandrasekhar Rao. Therefore, prima facie the contents of the charge sheet constitute the offence punishable under Section 505(2) of IPC against the petitioner.
44. Section 67 of IT Act deals with publishing of information which is obscene in electronic form. Perusal of the aforesaid post, posted by the petitioner in his facebook 28 KL,J Crl.P. No.1579 of 2023 account would reveal that the same is Mr.Kalvakuntla Chandrasekhar Rao, the then Chief Minister is holding a bottle and got it in his mouth. It is in electronic form. It is obscene in nature. Therefore, prima facie the contents of charge sheet also constitute the offence under Section 67 of IT Act.
45. In State of Haryana v. Bhajan Lal 12, the Apex Court cautioned that power of quashing should be exercised very sparingly and circumspection and that too in the rarest of rear cases. While examining a complaint, quashing of which is sought, Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint. The Apex Court in the said judgment laid down certain guidelines/parameters for exercise of powers under Section
- 482 of Cr.P.C., which are as under:
"(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 12 . (1992) Supp. 1 SCC 335 29 KL,J Crl.P. No.1579 of 2023 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.
(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 Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the 30 KL,J Crl.P. No.1579 of 2023 proceedings and/or where there is a specific provision in the Code or Act concerned, 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."
The said principle was reiterated by the Apex Court in catena of decisions.
46. In Skoda Auto Volkswagen India Private Limited v. The State of Uttar Pradesh and Ors 13, the Hon'ble Apex Court referring to the various Judgments rendered by it categorically held that the High Courts in exercise of its inherent powers under Section 482 of Cr.P.C. has to quash the proceedings in criminal cases in rarest of rare cases with extreme caution.
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47. As discussed supra, the petitioner herein being a Member of Parliament from Nizamabad Constituency, should have been more careful. Having gone through the said post, more particularly, morphed cartoon wherein the bottle was got in the mouth of the then Chief Minister. Prima facie, it will hurt the feelings of the well-wishers, family members of Mr.Kalvakuntla Chandrasekhar Rao, party workers of BRS party etc.
48. The petitioner instead of restraining himself from posting the same in his facebook account, posted the said post in his facebook account, and he has admitted the said fact in the criminal petition itself.
49. In the light of the aforesaid discussion, this Court is of the considered opinion that the aforesaid contentions raised by the petitioner are defences, which he has to take before the trial Court and it is for the trial Court to consider the same. This Court cannot quash the proceedings in C.C.No.355 of 2023 against the petitioner on the aforesaid grounds. This is not a rarest of rare case 32 KL,J Crl.P. No.1579 of 2023 to quash the proceedings against the petitioner in C.C.No.355 of 2023. The petitioner herein failed to make out any case, therefore, this Criminal Petition is liable to be dismissed.
50. Accordingly, this Criminal Petition is dismissed. However, the trial Court shall decide the aforesaid Calender Case basing on the material available on its own merits, without being influenced by any of the findings of this Court in this order. The petitioner is a Member of Parliament. His identity is not in dispute. Therefore, his presence in C.C.No.355 of 2023 pending on the file of the Special Judicial Magistrate of the First Class, Hyderabad, is dispensed with, however, he shall appear before the trial Court as and when his presence is required.
As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.
__________________ K. LAKSHMAN, J 18 December, 2024 ynk