Andhra Pradesh High Court - Amravati
G Venkateswara Rao vs The State Of Ap on 23 April, 2020
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
WRIT PETITION No.1429 of 2020
ORDER:
The petitioner seeks a Writ of Mandamus declaring the action of the respondents 2 to 4 in not registering the complaint dated 11.01.2020 as F.I.R and investigating into the contents of the complaint in spite of the allegations therein disclosing cognizable offence as illegal, arbitrary and contrary to the provisions of Cr.P.C and also the law laid down by the Hon'ble Apex Court in Lalita Kumari Vs. Government of U.P. and others1 for a consequential direction to respondents 2 to 4 to register the complaint dated 11.01.2020 as F.I.R and investigate the same.
2. The petitioner's case succinctly is thus:
a) The petitioner is a practising advocate at Guntur and incharge of legal cell wing of Janasena Party of Guntur District. He has been looking after the legal affairs of Janasena Party as per instructions of legal cell and the directions of the Party President.
b) On 11.01.2020 when the petitioner was in his office at #8/1, Arundalpet, Guntur and while he was checking the messages received in Whatsapp, he noticed a video in the Whatsapp group in which Mr.Dwarampudi Chandra Sekhara Reddy, M.L.A, Kakinada City was addressing public in a public meeting. During the course of his 1 2014 (1) ALT (Crl.) 100 2 address to the public, he used the following unparliamentary and abusive language against the president of Janasena Party.
"Pawan Kalyan is a Package Star, Nuvvu Oka Nayakudavena, Nuvvu lanjalu chese panulu chestunnavu Donganakodaka etc."
The said video was circulated in social media. The above abusive words were uttered in the public meeting at Kakinada in the presence of Smt.Vanga Geetha, M.P, some of the known people of the petitioner, fans of Sri K.Pawan Kalyan and also Janasena Party activists. Hearing those words, the petitioner was surprised as D.Chandra Sekhara Reddy, being M.L.A should be very careful while addressing the public and he has to respect the political party leaders. However, he acted in a manner unbecoming of a party leader. His intention was to provoke the supporters of Janasena Party to deviate from the prevailing agitations for shifting of Capital and create enmity between the groups and he thus provoked the public. Since the video was circulated in social media, particularly within the territorial jurisdiction of Arundalpet Police Station, where the petitioner happened to view the video and as he being the incharge of legal cell of Janasena Party, he thought it fit to lodge a complaint against Mr.D.Chandra Sekhara Reddy, M.L.A against his using unparliamentary language and provoking the public, particularly the sympathizers of Janasena Party and fans of Sri K.Pawan Kalyan. Hence, the petitioner lodged a complaint with the 4th respondent on 11.01.2020 by enclosing a C.D containing the speech of the M.L.A. 3 The complaint was acknowledged by the Inspector of Police, Arundalpet Police Station. The petitioner submits that the averments in the complaint specifically disclose the commission of cognizable offence.
c) Though a statutory obligation casts on the 4th respondent to register the complaint as F.I.R under Section 154 Cr.P.C and to investigate into it, no steps have been taken by him in that regard. Therefore, the petitioner has personally approached respondents 2 and 3 and brought to the notice about the inaction of 4th respondent in registering the F.I.R. It is pertinent to note that Hon'ble Apex Court in Lalita Kumari's case (supra), held that when the officer incharge of a police station receives any complaint disclosing cognizable offence, it is his statutory obligation to register the same as F.I.R and investigate into the matter. The respondents 2 to 4 have grossly violated the above dictum of Hon'ble Apex Court. The words uttered by the Mr.D.Chandra Sekhar Reddy, clearly reveal the offences under Section 153-A, 504, 506 and other offences under IPC and also Information & Technology Act, 2000 (for short 'I.T Act'), which are cognizable in nature. Therefore, the 4th respondent should have registered the F.I.R.
Hence, the writ petition.
3. Learned Government Pleader for Home filed counter affidavit on behalf of the respondents interalia contending as follows: 4
a) Firstly it is contended that a writ petition under Article 226 of Constitution of India against the alleged inaction on the part of the police in registering the complaint dated 11.01.2020 as F.I.R is not maintainable, as the petitioner without exhausting the efficacious alternative remedy available under the provisions of Cr.P.C, hastily filed the writ petition.
b) The petitioner has no locus to prefer the complaint with regard to alleged incident of uttering of unparliamentary language against the president of the Janasena Party by Dwarampudi Chandra Sekhar Reddy as the petitioner is not an aggrieved person and the contents of the complaint are referable to the provisions under Chapter XXI of Indian Penal Code, but not any cognizable offence. Further, the alleged incident had taken place outside the territorial jurisdiction of Arundalpet Police Station, Guntur District. Hence, the writ petition is not maintainable.
c) A bare perusal of complaint preferred by the writ petitioner does not disclose commission of any cognizable offence so as to register the F.I.R. Therefore, the aggrieved person has got statutorily engrafted remedies to ensure that his complaint is taken to its logical end. It is submitted that when the F.I.R is not registered by the police, the remedy is not under Article 226 of Constitution of India, but under Section 156 (3) of Cr.P.C. The contents of the writ petition have got no legal basis. The writ petitioner cannot construe himself as an aggrieved person. Further, the contents of the complaint do not 5 disclose cognizable offence. The writ petition also suffers legal infirmity as the writ petitioner has not joined necessary parties in the writ petition.
4. Heard learned counsel for the petitioner Sri K.Chidambaram and learned Government Pleader for Home.
5. Severely castigating the act of respondents in not registering the complaint of the petitioner as F.I.R, learned counsel Sri K.Chidambaram would argue that the scurrilous and vituperative remarks made by Mr.D.Chandra Sekhara Reddy in a public meeting at Kakinada against the president of Janasena Party are not only abysmally low of the standards of contemporary civilized society but they are against the morality and decency practised by an average and ordinary sensible man and therefore, such remarks are highly condemnable, reprehensible and punishable in a Court of law, for, they being highly offensive in nature. He would argue that the words uttered by D.Chandra Sekhar Reddy, M.L.A attract the offences under Section 153-A, 504, 506 IPC and also the offence under Section 67 of I.T Act, which are cognizable in nature. Therefore, having regard to the guidelines rendered by Hon'ble Apex Court in Lalita Kumari's case (supra), the police concerned are obligated to register F.I.R basing on the complaint lodged by the petitioner. However, they miserably committed truancy. He thus prayed to allow the writ petition.
6
6. In oppugnation, learned Government Pleader for Home strenuously argued that the contents of objectionable speech of Sri D.Chandra Sekhara Reddy, may at best, amount to defamation attracting the offence under Section 500 IPC which is a non- cognizable offence and therefore, the police cannot register the F.I.R and the aggrieved has to file a private complaint. He would further argue that having regard to the nature of the offence and restriction imposed under Section 199 Cr.P.C., the aggrieved person alone is entitled to file private complaint. In the instant case, since the allegation is that the scandalous words were uttered against the president of Janasena Party, he alone can be said to be aggrieved person and therefore, he alone is entitled to file a private complaint. He would thus argue that at any rate the police cannot be blamed for not registering the F.I.R. He finally argued that even assuming that the complaint disclosed the cognizable offence and the same was not registered as F.I.R, the efficacious remedy for the petitioner is to file a private complaint under Section 200 Cr.P.C, but not recoursing to writ jurisdiction. He thus prayed to dismiss the writ petition.
7. The point for consideration is, whether there are merits in the writ petition to allow?
8. The crux of the issue is whether the speech said to be made by Mr.Dwarampudi Chandra Sekhar Reddy, M.L.A Kakinada do contain the statements attracting a cognizable offence, so that by virtue of the 7 directions issued by Hon'ble Apex Court in Lalita Kumari's case (supra) concerned police are obligated to register the F.I.R on lodging the complaint. In Lalita Kumari Kumari's case (supra), the Apex Court has given the following directions:
i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/ family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating
criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.8
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.
9. Thus, it has now to be seen whether the speech of Mr.D.Chandra Sekhar Reddy depict the commission of any cognizable offence. It should be noted that the petitioner relied upon a particular statement said to be made by the said D.Chandra Sekhar Reddy and extracted in Para-4 of the writ petition, which is as follows:
"Pawan Kalyan is a Packages Star, Nuvvu Oka Nayakudavena, Nuvvu lanjalu chese panulu chestunnavu Donganakodaka etc."
It should be noted that the petitioner has not added D.Chandra Sekhar Reddy as a party respondent to either confirm or disown the above statement. Be that it may, the question is, even assuming that during his speech Mr.D.Chandra Sekhar Reddy has made the above statement, whether it would attract any cognizable offence. The abusive language only reveals as if Sri K.Pawan Kalyan, the president of Janasena Party is a package star and poses a question as to whether by any means he is a leader and he has been doing the acts as the 9 prostitutes do and he is a thief. In the complaint dated 11.01.2020 also the petitioner alleged as if D.Chandra Sekhar Reddy abused their Party President in similar lines as stated supra. When the aforesaid utterings are analysed, as rightly argued by the learned Government Pleader, they may at best attract the offence of defamation elucidated under Section 499 and 500 IPC. As per the first Schedule of Cr.P.C, the offence under Section 500 IPC is only a non-cognizable and bailable offence. In that view, in terms of Section 155 Cr.P.C, the police are not obligated to register the F.I.R and investigate into the offence. In terms of Section 199 Cr.P.C, the concerned aggrieved person may file a private complaint. The submission of learned counsel for the petitioner that the offences under Section 153-A and Section 67 of I.T Act would attract cannot be countenanced. Section 153-A IPC reads thus:
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 enmity, hatred or ill-will between different reli-gious, racial, language or regional groups or castes or communi-ties, 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, 2[or] 2[(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall 10 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 partici-pants 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 wor-ship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.]
10. To attract the above offence the words spoken or written or signs or visible representations made shall have the tendency to promote disharmony or feelings of enmity, hatred or ill-will between different, religious, racial, language or regional groups or castes or communities on ground of religion, race, place of birth, residence, language, castes or community. It must be noted that the alleged speech of the M.L.A, if assumed to be true, was only directed against the president of a political party and it was not intended to promote disharmony or feelings of enmity or hatred or ill-will between different religious, racial, language or regional groups or castes or communities. Therefore, Section 153-A IPC is only a bull in the china's shop.
11
11. Then, Section 67 of I.T Act too has no application. The said section reads thus:
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.
To attract this section publication or transmission of a material in electronic form should be "lascivious" or appeals to the prurient interest or it tend to deprave or corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. Then such act can be termed as an offence under this section. The terms lascivious, prurient interest, deprave and corrupt were delineated by a learned Judge of this Court in his judgment dated 03.12.2019 in W.P.No.17635 of 2019 thus:
"In view of the specific allegations made in the complaint, the words employed in Section 67 of the I.T.Act are required to be analysed to find out whether any of the allegations made by Byreddy Siddarth Reddy and others would fall within the ambit of Section 67 of the I.T.Act. The specific words lascivious, prurient and deprave have their meaning. The meaning of "Lascivious" is "feeling or revealing an overt sexual interest or desire". Similarly, prurient means "having or encouraging an excessive interest in sexual matters, especially the sexual activity of others". The 12 other word deprave means "morally corrupt; wicked". If the allegations satisfies any of these acts, including obscenity, the Court can issue a direction to register a complaint."
12. It must be noted that in the present context, the utterings of the M.L.A even assumed to be true, do not satisfy the above meanings. Therefore, section 67 of I.T Act also cannot get attracted.
13. So on a conspectus, the respondents cannot be found fault for non-registration of the F.I.R. Therefore, while dismissing the writ petition, liberty is given to the concerned aggrieved person to take appropriate legal recourse, if he is so advised. No costs.
As a sequel, interlocutory applications, if any pending, shall stand closed.
__________________________ U. DURGA PRASAD RAO, J Date: 23.04.2020.
PVD