Karnataka High Court
Sri. G.Madhusudhan vs The State And Anr on 13 January, 2022
Author: V.Srishananda
Bench: V.Srishananda
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO.201401/2017
BETWEEN:
SRI. G.MADHUSUDHAN
S/O LATE H.S. GOPALAKRISHNACHAR,
AGED ABOUT 58 YEARS,
MEMBER OF LEGISLATIVE COUNCIL,
GOVERNMENT OF KARNATAKA,
BENGALURU-560001.
RESIDING AT NO.2241,
KESARI 5th CROSS,
BASAVESHWARA ROAD,
K.R. MOHALLA, MYSORE-570004.
... PETITIONER
(BY SRI AMEET KUMAR DESHPANDE SENIOR COUNSEL for
SRI ANANTH S. JAGIRDAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY THE
STATION HOUSE OFFICER,
DEVADURGA POLICE STATION,
DEVADURGA TALUK,
RAICHUR DISTRICT-584111.
REPRESENTED THROUGH S.P.P.
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH.
2
2. SRI BHEEMASHANKAR YARAMASAL
AGED ABOUT 40 YEARS,
AMBEDKAR SENE (R), PRESIDENT,
DEVADURGA TALUK,
RAICHUR DISTRICT-584111.
... RESPONDENTS
(SRI GURURAJ V. HASILKAR, HCGP FOR R1;
SRI SHAMBULING SANGALAGI ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 OF CR.P.C PRAYING TO ALLOW THIS
PETITION AND QUASH THE COMPLAINT FIR IN CRIME
NO.0231/2017 PENDING ON THE FILE OF THE
DEVADURGA POLICE STATION, RAICHUR DISTRICT, VIDE
ANNEXURE-A AND B RESPECTIVELY.
THIS PETITION COMING ON FOR FINAL HEARING
THIS DAY, THE COURT MADE THE FOLLOWING HEARING:
ORDER
The present petition is filed under Section 482 of Cr.P.C with the following prayer :-
"To allow the petition and quash the compliant and FIR in Crime No.0231/2017 pending on the file of Devadurga Police Station, Raichur District, vide Annexures 'A' and 'B' respectively.3
2. Brief facts of the case are as under :-
In the wake of Tippu Jayanthi to be celebrated by the State Government, there was a TV debate in Suvarna News Channel which was telecasted between 7.00 p.m. and 9.00 p.m. on 09.11.2017. The discussion was bifurcated to number of talks and uploaded in YouTube channel on 10.11.2017. During the course of said TV debate, petitioner said to have made comments as under:-
"¸ÀA«zsÁ£ÀzÀ°è K£ÉÆà MAzÀÄ EzÉà C£ÉÆßà PÁgÀtUÉÆøÀÌgÀªÁV J®èzÀÄ MAzÀÄ ¸ÀA«zsÁ£ÀzÀ°è CªÀvÀÄÛ §gÉ¢gÀĪÀÅzÉ®èªÀÅ J®èªÀÇ ¥À«vÀæ C£ÀÄߪÀAvÀºÀÄzÁzÀgÉ £ÀªÀÄä ¸ÀA«zsÁ£ÀzÀPÉÌ 125 CªÉÄAqÀªÉÄAmïUÀ¼ÀÄ ªÀiÁqÀ¨ÉÃPÁzÀ CªÀ±ÀåPÀvÉ E®è £ÀªÀÄUÉ."
3. Taking note of the said comments/observations made by the petitioner, the Ambedkar Sene (R), Taluk Ghataka Devadurga, Raichur District lodged a complaint to the Police Inspector, Devadurga on 14.11.2017 contending that the accused/petitioner has committed an offence punishable under Section 124A of Indian Penal Code (for short, 'IPC') as he has violated Article 51A of the 4 Constitution of India. Based on the said complaint, Devadurga police registered a case on 15.11.2017 at about 9.15 p.m. in Crime No.0231/2017 against the petitioner.
4. The petitioner being aggrieved by the same, has filed this petition under Section 482 of Cr.P.C contending that the very registration of the case by the Devadurga Police is in correct as there is no ingredient made out to attract the offence under Section 124A of IPC and there is no disrespect shown by the petitioner either to the Constitution of India more particularly to Dr.B.R.Ambedkar.
5. It is also contended that the expressions made by the petitioner as a participant in the TV debate is very much preserved under the right of freedom of speech and none of the remarks made by the petitioner had the semblance of showing disrespect to the Constitution of India, more particularly to Dr.B.R.Ambedkar or for that matter any individual.
56. It is also contended that the petitioner was entitled to express his views about Tippu Sulthan when the very debate itself is about the requirement of celebrating 'Tippu Jayanthi', which was the decision taken by the then Government.
7. Per contra, learned High Court Government Pleader opposes the petition on the ground that the expressions made by the petitioner herein has effected a section of the society, more particularly, 'the Dalits' and therefore, Ambedkar Sene (R) organization at Devadurga was entitled to lodge a complaint as the expressions made by the petitioner per se attract the offence under Section 124A of IPC and police were right in registering the case and there is no abuse of process which would warrant this court to interfere under Section 482 of Cr.P.C and sought for dismissal of the petition.
8. In order to ascertain what exactly is the remarks made by the petitioner while participating in the TV debate held on 09.11.2017 in Suvarna News Channel 6 between 7.00 p.m. to 9.00 p.m. in the wake of the decision of the Government to celebrate Tippu Jayanthi, this court arranged for viewing the program that was telecasted in Suvarna News Channel on 09.11.2017 which is now available on YouTube channel. The telecasted portion which is available on YouTube channel is played before this court in the presence of the counsel for the petitioner and learned High Court Government Pleader with the technical assistance of the concerned persons attached to this court. On such viewing of the program between 7.00 p.m. to 9.00 p.m. it has been expressed by the petitioner is as under :-
"¸ÀA«zsÁ£ÀzÀ°è K£ÉÆà MAzÀÄ EzÉà C£ÉÆßà PÁgÀtUÉÆøÀÌgÀªÁV J®èzÀÄ MAzÀÄ ¸ÀA«zsÁ£ÀzÀ°è CªÀvÀÄÛ §gÉ¢gÀĪÀÅzÉ®èªÀÅ J®èªÀÇ ¥À«vÀæ C£ÀÄߪÀAvÀºÀÄzÁzÀgÉ £ÀªÀÄä ¸ÀA«zsÁ£ÀzÀPÉÌ 125 CªÉÄAqÀªÉÄAmïUÀ¼ÀÄ ªÀiÁqÀ¨ÉÃPÁzÀ CªÀ±ÀåPÀvÉ E®è £ÀªÀÄUÉ."
9. In order to find out whether such remarks would attract the offence under Section 124A of IPC, it is 7 necessary for this court to cull-out Section 124A of IPC which reads as under:-
"124A. Sedition.--Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in [India], shall be punished with [imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
Explanation 1.--The expression "disaffection"
includes disloyalty and all feelings of enmity.
Explanation 2.--Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3.--Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section."
810. As could be seen from the definition of Section 124A of IPC and the ingredients to attract the offence, it is necessary for this court also to quote the decision of the Hon'ble Apex Court in the case of Billal Ahamed Kaloo v. State of Andra Pradesh reported in (1997) 7 Supreme Court Cases 431. Wherein the Hon'ble Apex Court gave the meaning of sedition as under:-
"The offence of sedition under Section 124A of IPC is the doing certain acts which would bring the Government established by law in India into hatred or contempt, or create disaffection against it."
11. Further, in a recent judgment of the Hon'ble Apex Court in the case of Vinod Dua vs. Union of India & others reported in AIR 2021 Supreme Court 3239:AIR Online 2021 SC 275, the Hon'ble Apex Court after conducting the detail surveying of the case law in the field of what amounts to sedition has held in paragraph 28.6 has held as under :-
9"28.6. The scope of Section 124A of IPC was considered thus :-
xxx xxx xxx xxx 28.6.1 Finally, while considering the applicability of Section 124A of the IPC3, especially in the context of the Right guaranteed under Article 19(1)(a) of the Constitution, this Court concluded: -
"It has not been questioned before us that the fundamental right guaranteed by Article 19(1)(a) of the freedom of speech and expression is not an absolute right. It is common ground that the right is subject to such reasonable restrictions as would come within the purview of clause (2), which comprises (a) security of the State, (b) friendly relations with foreign States, (c) public order, (d) decency or morality, etc. etc. With reference to the constitutionality of Section 124- A or Section 505 of the Indian Penal Code, as to how far they are consistent with the requirements of clause (2) of Article 19 with particular reference to security of the State and public order, the section, it must be noted, penalises any spoken or written words or signs or visible representations, etc. which have the effect of bringing, or which attempt to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law. Now, the expression "the Government established by law"
has to be distinguished from the persons for the time being engaged in carrying on the administration." Government established by law" is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted. Hence, the continued existence of the Government established by law is an essential condition of the stability of the State. That is why "sedition", as the offence 10 in Section 124-A has been characterised, comes, under Chapter VI relating to offences against the State. Hence, any acts within the meaning of Section 124-A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence. In other words, any written or spoken words, etc. which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term "revolution", have been made penal by the section in question. But the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.
It has not been contended before us that if a speech or a writing excites people to violence or have the tendency to create public disorder, it would not come within the definition of "sedition". What has been contended is that a person who makes a very strong speech or uses very vigorous words in a writing directed to a very strong 11 criticism of measures of Government or acts of public officials, might also come within the ambit of the penal section. But in our opinion, such words written or spoken would be outside the scope of the section. In this connection, it is pertinent to observe that the security of the State, which depends upon the maintenance of law and order is the very basic consideration upon which legislation, with a view to punishing offences against the State, is undertaken. Such a legislation has, on the one hand, fully to protect and guarantee the freedom of speech and expression, which is the sine qua non of a democratic form of Government that our Constitution has established. This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case. But the freedom has to be guarded against becoming a licence for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. The Court has, therefore, the duty cast upon it of drawing a clear line of demarcation between the ambit of a citizen's fundamental right guaranteed under Article 19(1)(a) of the Constitution and the power of the legislature to impose reasonable restrictions on that guaranteed right in the interest of, inter alia, security of the State and public order. We have, therefore, to determine how far the Sections 124-A and 505 of the Indian Penal Code could be said to be within the justifiable limits of legislation. If it is held, in consonance with the views expressed by the Federal Court in the case of Niharendu Dutt Majumdar v. King-Emperor31 that the gist of the offence of "sedition" is incitement to violence or the tendency or the intention to create 12 public disorder by words spoken or written, which have the tendency or the effect of bringing the Government established by law into hatred or contempt or creating disaffection in the sense of disloyalty to the State, in other words bringing the law into line with the law of sedition in England, as was the intention of the legislators when they introduced Section 124-A into the Indian Penal Code in 1870 as aforesaid, the law will be within the permissible limits laid down in clause (2) of Article 19 of the Constitution. If on the other hand we give a literal meaning to the words of the section, divorced from all the antecedent background in which the law of sedition has grown, as laid down in the several decisions of the Judicial Committee of the Privy Council, it will be true to say that the section is not only within but also very much beyond the limits laid down in clause (2) aforesaid.
In view of the conflicting decisions of the Federal Court and of the Privy Council, referred to above, we have to determine whether and how far the provisions of Sections 124-A and 505 of the Indian Penal Code have to be struck down as unconstitutional. If we accept the interpretation of the Federal Court as to the gist of criminality in an alleged crime of sedition, namely, incitement to disorder or tendency or likelihood of public disorder or reasonable apprehension thereof, the section may lie within the ambit of permissible legislative restrictions on the fundamental right of freedom of speech and expression. There can be no doubt that apart from the provisions of clause (2) of Article 19, Sections 124- A and 505 are clearly violative of Article 19(1)(a) of the Constitution. But then we have to see how far the saving clause, namely, clause (2) of Article 19 protects the sections aforesaid. Now, as already pointed out, in terms of the amended clause (2), quoted above, the expression "in the interest of ... public order" are words of great amplitude and are much more comprehensive then the expression "for the 13 maintenance of", as observed by this Court in the case of Virendra v. State of Punjab - (1958) CR
308. Any law which is enacted in the interest of public order may be saved from the vice of constitutional invalidity. If, on the other hand, we were to hold that even without any tendency to disorder or intention to create disturbance of law and order, by the use of words written or spoken which merely create disaffection or feelings of enmity against the Government, the offence of sedition is complete, then such an interpretation of the sections would make them unconstitutional in view of Article 19(1)(a) read with clause (2). It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order. It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the 14 mischief it seeks to suppress [vide (1) Bengal Immunity Company Limited v. State of Bihar - (1955) 2 SCR 603 and (2) R.M.D. Chamarbaugwala v. Union of India - (1957) SCR 930] Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.
We may also consider the legal position, as it should emerge, assuming that the main Section 124-A is capable of being construed in the literal sense in which the Judicial Committee of the Privy Council has construed it in the cases referred to above. On that assumption, is it not open to this Court to construe the section in such a way as to avoid the alleged unconstitutionality by limiting the application of the section in the way in which the Federal Court intended to apply it? In our opinion, there are decisions of this Court which amply justify our taking that view of the legal position. This Court, in the case of R.M.D. Chamarbaugwalla v. Union of India (1957) SCR 930 has examined in detail the several decisions of this Court, as also of the courts in America and Australia. After examining those decisions, this Court came to the conclusion that if the impugned provisions of a law come within the constitutional powers of the legislature by adopting one view of the words of the impugned section or Act, the Court will take that view of the matter and limit its application accordingly, in preference to the view which would make it unconstitutional on another view of the interpretation of the words in question. In that case, the Court had to choose between a definition of the expression "Prize Competitions" as limited to those competitions which were of a gambling character and those which were not. The Court chose the former interpretation which made the rest of the provisions of the Act, Prize Competitions Act (42 of 1955), with particular reference 15 to Sections 4 and 5 of the Act and Rules 11 and 12 framed thereunder, valid. The Court held that the penalty attached only to those competitions which involved the element of gambling and those competitions in which success depended to a substantial degree on skill were held to be out of the purview of the Act. The ratio decidendi in that case, in our opinion, applied to the case in hand insofar as we propose to limit its operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace."
(Emphasis supplied)"
12. In the background of meaning of Sedition as referred to supra, when the remarks made by the petitioner in the TV channel as referred to supra is analyzed, this court is of the considered opinion mere saying that something being told in the Constitution cannot be treated as sacrosanct for all time to come and therefore the constitution has undergone number of amendments itself could not be treated as words or the remarks which would attract the ingredients of Section 124A of IPC. Police are required to go through the contents of the complaint and then register the case.16
13. However, in the case on hand, since the words expressed by the petitioner would not prima facie attract the ingredients of the offence under Section 124A of IPC, continuation of the criminal proceedings in Crime No.0231/2017 registered by Devadurga Police Station, Raichur would only result in futile exercise and abuse of process of law.
14. In the background of above recent pronouncement of the Hon'ble Apex Court, the complaint averments if viewed, this court is of the considered opinion that no ingredients whatsoever is made out from the complaint averments which would attract the police to register the case under Section 124A of IPC against the petitioner.
15. Accordingly, continuation of further proceedings in Crime No.0231/2017 registered by the Devadurga Police, Raichur District results in futile exercise and also abuse of process of law. Accordingly, this court is of the considered opinion that a case is made out to 17 exercise the power vested in this court under Section 482 of Cr.P.C to quash the FIR. Hence, the following :
ORDER Petition is allowed.
The FIR registered by the Devadurga Police, Raichur District in Crime No.0231/2017 in pursuance of the complaint dated 14.11.2017 by the Ambedkar Sene (R), Taluk Ghataka, Devadurga, is hereby quashed.
Sd/-
JUDGE sn