Madras High Court
K.Divya vs / on 2 January, 2020
Author: M.S.Ramesh
Bench: M.S.Ramesh
Crl.O.P.No.23298 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 28.11.2019
PRONOUNCED ON :02.01.2020
CORAM:
THE HONOURABLE MR.JUSTICE M.S.RAMESH
Crl.O.P.No.23298 of 2019
and
Crl.M.P.No.12223 of 2019
K.Divya ... Petitioner / Sole Accused
/vs./
The State represented by
The Sub-Inspector of Police,
Gudalur Police Station,
The Nilgris District.
Crime No.520/2018 ... Respondent / Complainant
PRAYER: Petition filed under Section 482 of Criminal Procedure Code, to call
for the records relating to the case in Crime No.520 of 2018 pending
investigation on the file of the respondent police, quash the same.
For Petitioner : Mr.Stalin Abhimanyu
For Respondent : Mr.C.Iyyapparaj
Additional Public Prosecutor
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Crl.O.P.No.23298 of 2019
ORDER
The petitioner herein, who is a documentary film maker, had directed the documentary film titled 'Orutharum Varela' touching upon the plight of the people affected by the Ockhi cyclone that hit the shores of TamilNadu and Kerala in December, 2017, which caused loss to many fishermen's lives.
The trailer of the film was released through Youtube on 27.06.2018 and the film was released on 27.08.2018. The Sub-Inspector of Police attached to Gudalur Police Station, who is the respondent herein, claims to have browsed the internet and watched the film 'Orutharum Varela' and was of the opinion that the film spreads rumour that the Government has not done anything to rescue the fishermen's lives and that it has caused fear and unrest among fishermen community and also promotes disharmony between their community and other residents in neighbourhood. It was his further opinion that the video depicts the picture of a mutilated Indian National Flag, which brings disrespect to the Indian National Flag and on all these aspects, he had registered an FIR against the petitioner herein for offences under Sections 153-A(1)(b) and 505 (1)(b) IPC along with Section 2/16 http://www.judis.nic.in Crl.O.P.No.23298 of 2019 2 of 'the Prevention of Insult to National Honour Act, 1971' (hereinafter referred to as 'said Act'). The said FIR is under challenge in the present petition.
2. The Learned counsel for the petitioner would submit that the ingredients of Section 153-A and 505 (1)(b) IPC are not attracted, since there was no mens rea on the part of the petitioner, which is a vital ingredient to constitute these two offences. He would further submit that the documentary film does not depict any insult to the Indian National Flag and therefore, the offence under the said Act is not made out in respect of the said contention. Learned counsel relied upon a few decisions, which I shall deal with later.
3. The learned Additional Public Prosecutor on the other hand relied on the averments made in the counter affidavit and submitted that the documentary film spreads mischievous rumour against the Government and since the entire film causes fear and unrest among fishermen community and also promotes disharmony between their community and other residents in neighbourhood, the offences are clearly made out. It is also his submission that the film depicts the Indian National Flag in a mutilated 3/16 http://www.judis.nic.in Crl.O.P.No.23298 of 2019 condition, which brings disrespect to the Indian National Flag and therefore, the offences under the said Act is also made out. Since the investigation is still pending, it would be pre-matured to have the FIR quashed under Section 482 Cr.P.C.
4. I have given careful consideration to the submissions made by the respective counsels.
5. The documentary film 'Orutharum Varela' is the second film of the petitioner. The present FIR has been viewed by the Investigation Officer on 02.07.2018 and based on his complaint, FIR came to be registered.
Pursuant to the registration of FIR, the same Sub-Inspector of Police had commenced the investigation, which is pending.
6. The sum and substance of the complaint seems to be that the film promotes disharmony between the fishermen community and others and also is a public mischief and thereby, the petitioner has been implicated for the offence under Sections 153-A (1)(b) and 505 (1)(b) IPC along with Section 2 of the Prevention of Insult to National Honour Act, 1971.
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7. For the sake of convenience, Sections 153-A (1)(b) and 505 (1)(b) IPC are extracted hereunder:
153-A. 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).....
(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,
(c).....
*****
505. Statements conducting to public mischief.-(1)Whoever makes, publishes or circulates any statement, rumour or report,-
(a).....
(b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility; or
(c) .....
8. The scope for implicating a person for these two offences has been dealt with by the Hon'ble Apex Court in its decision reported in 1997 (7) SCC 431 in the case of Bilal Ahmed Kaloo vs. State of A.P. & State of A.P. vs. Bilal Ahmed Kaloo wherein, it was held that the main ingredients for attracting the offences under these Sections would be for promotion of feeling of enmity, hatred or ill will between different religions or racial or 5/16 http://www.judis.nic.in Crl.O.P.No.23298 of 2019 linguistic or regional groups or castes or communities and that atleast two of such groups are involved. Mens rea was also held to be a vital ingredient. The relevant portion of the judgment relied upon by the learned counsel for the petitioner reads as follows:
'The common ingredient in both the offences is promoting feeling of enmity, hatred or ill will between different religious or racial or linguistic or regional groups or castes or communities. Section 153-A covers a case where a person by “words, either spoken or written, or by signs or by visible representations” promotes or attempts to promote such feeling. Under Section 505(2), promotion of such feelings should have been done by making and publishing or circulating any statement or report containing rumour or alarming news.
11. This Court has held in Balwant Singh vs. State of Punjab that mens rea is a necessary ingredient for the offence under Section 153-A. Mens rea is an equally necessary postulate for the offence under Section 505 (2) also as could be discerned from the words “with intent to creat or promote or which is likely to create or promote” as used in that sub-sectino.
12. The main distribution between the two offences is that while publication of the words or representation is not necessary under the former, such publication is sine qua non under Section 505. The words “whoever makes, publishes or circulates” used in the setting of Section 505 (2) cannot be interpreted disjunctively but only as supplementary to each other.
If it is construed disjunctively, anyone who makes a ment falling within the meaning of Section 505 would, without publication or circulation, be liable to conviction. But the same is the effect with Section 153-A also and then that section would have been bad for redundancy. The intention of the legislature in providing two different sections on the same subject would have been to cover two different fields of similar 6/16 http://www.judis.nic.in Crl.O.P.No.23298 of 2019 colour. The fact that both sections were included as a package in the same amending enactment lends further support to the said construction.
13. Yet another support to the above interpretation can be gathered from almost similar words used in Section 499 of the Penal Code as “whoever by words .. makes or pulishes any imputation ...”.
14. In Sunilakhya Chowdhury v. H.M.Jadwet, it has been held that the words “makes or publishes any imputation” should be interpreted as words supplementing each other. A maker of imputation without publication is not liable to be punished under that Section. We are of the view that the same interpretation is warranted in respect of the words “makes, publishes or circulates” in Section 505 IPC also.
15. The common feature in both sections being promotion of feeling of enmity, hatred or ill will “between different” religious or racial or linguistic or regional groups or castes and communities, it is necessary that at leats 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.
16. The result of the said discussion is that the 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 153-A or under Section 505 (2) of IPC.'
9. The complainant was not of the view that it was the intention of the petitioner to create or promote fear or alarm to the public, whereby any person may be induced to commit an offence against the State. As held by the Hon'ble Apex Court, in the case of Bilal Ahmed Kaloo (supra), merely 7/16 http://www.judis.nic.in Crl.O.P.No.23298 of 2019 to incite the feeling of the fishermen community and other residents of the neighbourhood cannot attract the aforesaid two offences. Incidentally, the substance of Section 505 (2) IPC which has been dealt with by the Hon'ble Apex Court in the case of Bilal Ahmed Kaloo (supra) could also be made applicable to the offence under Section 505 (1) (b) IPC. By applying the ratio laid down by the Hon'ble Apex Court in the case of Bilal Ahmed Kaloo (supra), it can be said that the offence under Sections 153-A (1)(b) and 505 (1)(b) IPC may not be made out.
10. Insofar as the offence under Section 2 of the Prevention of Insult to National Honour Act, 1971 is concerned, the said provision reads as follows:
'2.Insult to Indian National Flag and Constitution of India.-Whoever in any public place or in any other place within public view burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or [otherwise shows disrespect to or brings] into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag of the Constitution of India or any part thereof, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.
Explanation 1.-Comments expressing disapprobation or criticism of the Constitution or of the Indian National Flag or of the Indian National Flag or of any measures of the Government with a view to obtain an amendment of the Constitution of India or an alteration of the Indian National Flag by lawful means do not constitute 8/16 http://www.judis.nic.in Crl.O.P.No.23298 of 2019 an offence under this section.
Explanation 2.-The expression “Indian National Flag” includes any picture, painting, drawing or photograph, or other visible representation of the Indian National Flag, or of any part or parts thereof, made of any substance or represented on any substance.
Explanation 3.-The expression “public place” means any place intended for use by, or accessible to, the public and includes any public conveyance.
Explanation 4.-The disrespect to the Indian National Flag means and includes-
(a)a gross affront or indignity offered to the Indian National Flag; or
(b)dipping the Indian National Flag in salute to any person or thing; or
(c)flying the Indian National Flag is flown at half-
mast on public buildings in accordance with the instructions issued by the Government; or
(d)using the Indian National Flag as a drapery in any form whatsoever except in State funerals or armed forces or other para-military forces funerals; or
(e)using the Indian National Flag,-
(i)as a portion of costume, uniform or accessory of any description which is worn below the waist of any person ; or
(ii)by embroidering or printing it on cushions, handkerchiefs, napkins, undergarments or any dress material; or
(f)putting any kind of inscription upon the Indian National Flag; or
(g)using the Indian National Flag as a receptacle for receiving, delivering or carrying anything except flower petals before the Indian National Flag is unfurled as part of celebrations on special occasions including the Republic Day or the Independence Day; or
(h)using the Indian National Flag as covering for a statue or a monument or a speaker's desk or a speaker's platform; or
(i)allowing the Indian National Flag to touch the ground or the floor or trail in water intentionally; or
(j)draping the Indian National Flag over the hood, top and sides or back or on a vehicle, train, boat or an 9/16 http://www.judis.nic.in Crl.O.P.No.23298 of 2019 aircraft or any other similar object; or
(k)using the Indian National Flag as a covering for a building; or
(l)intentionally displaying the Indian National Flag with the “saffron” down.
COMMENTS Burning, mutilating defacing, defiling, disfiguring, destroying, trampling upon or otherwise showing disrespect to or bringing into contempt (whether by words, either spoken or written, or by acts) the National Flag or the Constitution of India or any part thereof in any public place or in any other place within public view is punishable with imprisonment upto three years, or with fine or with both.'
11. To have a better understanding as to how the overt act attributed in the complaint could attract the aforesaid offence pertaining to the Indian National Flag, I had personally viewed the documentary film on a social network. The film is about the aftermath of the Ockhi cyclone, which caused immense damage to the coastal areas of the States of TamilNadu and Kerala. In the course of film, devastation caused by the cyclone was depicted by capturing the damages in the cyclone affected areas. In one such clip, the film exhibits a flag, which came to be damaged by the cyclone. Other than that, the film does not even remotely indicate that the Indian National Flag was mutilated by any one of the makers of the film. In order to constitute the offence under Section 2 of the said Act, the culpability should be cast on an individual, since the provision intends to 10/16 http://www.judis.nic.in Crl.O.P.No.23298 of 2019 bring within its purview the culpability on said person, who causes insult to the Indian National Flag. Even as per the complaint, it is not the case of the respondent that the petitioner herein had mutilated the flag and therefore, by no stretch of imagination can the petitioner be made liable for this offence also.
12. The incident question that may arise and which could be relevant, is with regard to the rights of the petitioner to release such a film, expressing the Directors personal views on the theme of the film. In the case of the Hon'ble Apex Court in S.Rangarajan vs. P.Jagjivan Ram and Others reported in (1989) 2 SCC 574, freedom of expression has been held to be fundamental freedom under Article 19(1)(a) of the Constitution of India or open criticism of Government policies and operations is not a ground for restricting expression. The relevant portion reads thus:
'53. We end here as we began on this topic. Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom by an intolerant group of people. The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency. Open criticism of government policies and operations is not a ground for restricting expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself.' 11/16 http://www.judis.nic.in Crl.O.P.No.23298 of 2019
13. The Hon'ble Division Bench of this Court in the case of S.Tamilselvan and another vas. The Government of Tamil Nadu reported in 2016 (3) L.W., 577 also had an occasion to express its views by holding that the State has responsibility to maintain law and order and that there is presumption in favour of free speech and expression as envisaged under Article 19 (1) (a) of the Constitution of India. The Hon'ble Division Bench of this Court thus held as follows:
'181. We do not believe that there was any mala fide endeavor of the police and the administration, but would call it more of a knee jerk reaction arising out of mere apprehension of law and order situation. But then, the solution was to prevent the breach of law and order through lawful means. We do not say that the peace meeting initiative itself can be said to be faulty, but it ought not to have proceeded the way it did. We may also say that the State and the police authorities would not be the best ones to judge such literary and cultural issues, which are best left to the wisdom of the specialists in the field and thereafter, if need be, the Courts.
182. We do believe that a clear distinction has to be carved out between situations involving the right to expression of an individual or a body of individuals as opposed to a routine law and order tension, where the State intervenes to diffuse the situation. Even in matters of this nature, the State may endeavor to diffuse the situation, but not permit proponents of free speech, authors and artistes, as the case may be, to be put under pressure by surrounding circumstances.
On the other hand, the endeavor should be to preserve the rights of expression through other modes. There is thus a requirement of mixing care 12/16 http://www.judis.nic.in Crl.O.P.No.23298 of 2019 with caution so that such endeavors do not result in malicious proceedings merely based on a perspective of another set of people, who may have different mores.
183. Dr.V.Suresh, learned counsel for the publisher sought guidelines to be framed by this Court in matters where peace initiatives are hedl. There is a legal process for holding such peace initiatives and to that extent, we would not like to curtail the same. However, as conceded before us, the authorities certainly could not have issued 'Summons' showing some kind of a compelling attendance without even a reference to any provision of law. Every action of a State authority must be in accordance and in conformity with law. If a power is sought to be exercised by the State Agency, the person receiving a notice must be shown as under what provision of law it is being done.
184. We, however, find some important aspects in the suggested guidelines, which we would like to put down as under:-
(vi) There is bound to be a presumption in favour of free speech and expression as envisaged under Article 19(1)(a) of the Constitution of India unless a court of law finds it otherwise as falling within the domain of a reasonable restriction under Article 19(2) of the Constitution of India. This presumption must be kept in mind if there are complaints against publications, art, drama, film, song, poem, cartoons or any other creative expressions.
(vii) The State's responsibility to maintain law and order would not permit any compulsion on the artistes concerned to withdraw from his/her stand and non-
State players cannot be allowed to determine what is permissible and what is not.
(viii) It is high time the Government constitutes an expert body to deal with situations arising from such conflicts of views, such expert body to consits of qualified persons in the branch of creative literature and art so that an independent opinion is forthcoming, keeping in mind the law evolved by the judiciary. Such an expert body or panel of experts would obviate the 13/16 http://www.judis.nic.in Crl.O.P.No.23298 of 2019 kind of situations we have seen in the present case. In such matters of art and culture, the issue cannot be left to the police authorities or the local administration alone, especially when there is a spurt in such conflicts.
(ix) The State has to ensure proper police protection where such authors and artistes come under attack from a section of the society.'
14. By applying the ratio laid down in the aforesaid decisions of the Hon' ble Apex Court as well as the Hon'ble Division Bench of this Court, the releasing of the film by the petitioner herein cannot be fault with, since it is a right vested with the petitioner to express her views. The reasonable restrictions for said freedom of expression have also not been violated in the film. When the Constitution itself asserts the petitioner to release such film and in the absence of any of the ingredients to constitute all the three offences, for which the petitioner has been implicated, further investigation into the complaint may not be warranted.
15. The Hon'ble Apex Court in the case of State of Haryana vs. Chaudhary Bhajanlal reported in AIR 1992 SC 604 had observed that an FIR can be quashed, if it does not disclose an offence and there is no need for any investigation or recording of statement.
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16. In view of this dictum laid down in Bhajanlal case (supra) and in the light of the observations made above, this Court is of the view that inherent powers vested with Section 482 Cr.P.C., can be invoked in this exceptional case, for the purpose of quashing the FIR.
17. In the light of the above, the case in Crime No.520 of 2018 pending investigation on the file of the respondent police is quashed. This Criminal Original Petition stands allowed accordingly. Connected Miscellaneous Petition is closed.
02.01.2020 Index : Yes Internet : Yes sm To The Sub-Inspector of Police, Gudalur Police Station, The Nilgris District.
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Sm Order made in Crl.O.P.No.23298 of 2019 Dated:
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