Madras High Court
P.Saravanakumar vs State Rep.By Its on 5 August, 2019
Equivalent citations: AIRONLINE 2019 MAD 2199
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 30.04.2019
Pronounced on : 05.08.2019
CORAM
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.No.232 of 2013
P.Saravanakumar ... Petitioner
Vs
1.State rep.by its
Inspector of Police,
Cyber Cell, Central Crime Branch,
Egmore, Chennai-600 008.
2.Chinmayi Sripada ... Respondents
Prayer:- Criminal Original Petition filed under Section 482 of Cr.P.C to
quash the crime No.528/2012 on the file of the respondent.
For Petitioner :Mr.M.Palanimuthu
For Respondents : Mr.Harihara Arunsomasankar
Government Advocate (Criminal Side)
Dr.V.Suresh for R2
ORDER
The petitioner / accused no.4 in Cr.No.528 of 2012 is before this Court to quash an FIR in Cr.No.528/2012 for the offence under Section http://www.judis.nic.in 2 506(i), 668 A of Information Technology (Amendment) Act, 2008 and under Section 4 of Tamil Nadu Prohibition of Women Harassment Act.
2. The petitioner was working as Associate Professor in the National Institute of Fashion Technology and he has been serving there without any bad remarks. The petitioner was on social networking like Twitter, Facebook and he always tweet with positive approach for betterment of the society with humanity. The contention of the petitioner is that he tweeted in the network as usual in response to a tweet of 2nd respondent.
3. The gist of the case is that the defacto complainant / 2nd respondent had lodged a complaint on 18.10.2012 and the relevant portion of the complaint, explaining the facts of the case are as follows:
I am a well-known singer in South India and the CEO of my entreprenuerial venture-Blue Elephant. In order to connect with my fans, Iam active on social media platforms like Twitter and Facebook. I have close to 1 lakh followers on Twitter. Since January 2011, I have been facing criminal intimidation on twitter. A few individuals have threatened to kill, rape and assault me. There are aspersions cast on my character as well as a chronic steam of extremely vulgar references and innuendoes http://www.judis.nic.in 3 even about my mother, patently false information that could pit groups against me, thereby endangering my life, has also been put out by trouble makers, Many of these tweets are in Tamil. Iam pasting an english translation of a sample of the offensive tweets. Screen shots of these pages on twitter are attached with this complaint.
The same people gang up, with new Ids and have also been saying Iam against Tamil, Tamil Tweeters and Tamil Bloggers and that I have also have taken up cudgels against srilankan tamils.
In addition to this online stalking and harassment on twitter, some of the offenders also target me in their blogs such as ''rajanleaks'' and http://mantra3787.blogspot.com/ (the blog has been removed as of a week ago. Investigation will reveal that these cyber criminals have also been posting obscene comments about several VVIPs in chennai.
May I please request you to have your cyber crime cell investigate this complaint, nab the culprits and prosecute them under the Indian Penal Code, Information Technology Act, the Tamilnadu Prohibition of Harassment Of Women Act and other provisions of law.
http://www.judis.nic.in 4
4. The contention of the petitioner is that the petitioner who is an Associate Professor in the National Institute of Fashion Technology, Chennai was in a social networking and whenever tweeted in a social networking, if taken in positive pretext, the words in it are all positive and it is only the 2nd respondent's negative approach to the words attributing motive to the tweets of the petitioner. In this case, criminal intimidation would not arise since there was no physical presence and they have not met ever. Further on the averments in the complaint, Tamil Nadu Prohibition of Women Harassment Act would not get attributed. Further submitted that Section 66 A, IT Act has been struck down by the Apex Court in the case of Shreya Singhal Vs. Union Of India, wherein it is held that 'mere discussion or even advocacy of a particular cause, however unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in'.
5. Further, the learned counsel for the petitioner submitted that though the incident is said to have been taken place on 04.01.2011, the 2nd respondent has made a complaint only on 18.10.2011 and the delay has not been explained. Subsequently, the petitioner was arrested on the false http://www.judis.nic.in 5 complaint of the 2nd respondent on 18.10.2012 and he was released on bail on 01.11.2012, which has caused innumerable sufferings and harassment. Further the 2nd respondent is actively tweeted with lakhs for her entrepreneurial venture-Blue Elephant business proposal and she has used this false complaint as a threat to others and curtailing others to have free expression of their thoughts and views. The 2nd respondent is propagating a particular group of people and she is against the social justice and the petitioner relied on several judgments to support his contention.
1. In Shreya Singhal Vs. Union of India reported in 2015 (5) SCC 1, it is held that ''Section 66 A of the Information Technology Act 2000 is struck down in its entirety being violative of Article 19(1) (a) and not saved under Article 19(2)''.
2. In Gouresh Mehra Vs. .State (Crl.O.P.No.13501 of 2010 dated 25.10.2010), it is held that ''This Court considers it reasonable to hold that Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act 1988 was meant to deal with offences occurring in the places informed or in places of like nature. If not so read, the mention of particular places in Section 4 would be rendered found sufficient cause to take cognizance... http://www.judis.nic.in 6
6. The 2nd respondent / defacto complainant submits that she is a trained singer in both Hindustani and classical carnatic music and got trained under prominent singers and celebrities. She is also trained as a classical odissi dancer and she is a recognized Gold medalist singer of the All India Radio and is a graded artist for both Hidustani and Ghazal music by the All India Radio. She is also a play back singer and has sung over a 1000 songs in eight languages including Tamil, Telugu, Kannada, Malayalam, Marathi, Gujarati, Tulu and Hindi and she uses the social media including Facebook, Twitter and Instagram and she has over 7,50,000 followers on Twitter and she uses the Twitter medium to interact with her fans and followers.
7. On 04.01.2011, the 2nd respondent received a tweet, requesting for financial assistance from a student pursuing medical education on grounds of economic backwardness. The 2nd respondent could not financially afford a seat in a private medical college and she replied that it was sad that meritorious students were losing out on education. This provoked 1st accused against her and she has received tweets on the basis of her caste http://www.judis.nic.in 7 origin. Since the tweets were intimidating and vulgar, she stopped tweets with the accused persons. Soon after, several persons wrote in an abusive, insulting and intimidating way about her and her mother. They threatened her with physical harm like rape, acid attacks. Amongst those persons, the accused persons in the complaint are the most persistent.
8. In continuation of the same, five accused persons were persistent in sending her hate messages, insulting her by her gender, threatening physical harm including rape and ashame her, with acid attacks and worse to both the 2nd respondent and her mother. During such time, A3 sent a proposal of marriage to the 2nd respondent's mother stating that he wished to marry 2nd respondent, which was subsequently turned down. Thereafter A3 also blogged an essay in social network by abusing the 2nd respondent. The 2nd respondent and her mother appealed to these people to resist them from such activities. However, the act of the accused persons continued and therefore, the 2nd respondent left with no other option, blocked the accounts of about 50 persons, who were in tandem with the tweets of A1 to A5. However, A1 to A5 somehow managed to enter into Twitter discussion by changing their names or twitter handles.
http://www.judis.nic.in 8
9. The 2nd respondent submits that every time she blocked a Twitter Account of the accused, they would open new Twitter handles and would enter the discussions using these new Twitter handles. For example, A3 has five Twitter handles (1)@rajanleaks; (2)@rajan-alinall; (3)@rajarajan; (4)@Zhavinci and (5) @reniguntaboys. Numerous messages were sent by A1 abusing the 2nd respondent using any of these 5 twitter handles. The petitioner herein, whose Twitter handle is @sharankay would keep changing his Twitter name and would sent tweets in the name of 'vasantham'.
10. The act of all the accused was in tandem with each other and they continued to tweet against the 2nd respondent and her mother by insulting them.
11. The 2nd respondent further states that during this time a number of trends on Twitter was also initiated against her. For example, #Asingapattalachinmayi, #Chinmayihatesus and so on which was followed by hundreds of people. The resultant public campaign was emotionally and http://www.judis.nic.in 9 personally traumatic, which affected the respondent's livelihood and fundamental right to occupation, and also spread rumours about her, affecting her professional standing. The #asingapattalchinmayi'' hashtag was started by A1, it was used and promoted by A2 and A4. A4 in particular, kept bullying and commenting about the caste identity of the second respondent and threatened that if she did not unblock him, he would insult and attack her. Further the 2nd respondent would state that the virulence of the campaign forced her mother to approach many of those participating in the personalized hate campaigns and attacks against the 2nd respondent explaining the true facts and the insidious nature of the smear campaign and that the message itself was totally false. Her mother also requested them to stop disparaging and shaming the 2nd respondent and herself as she needed to get the 2nd respondent married off with dignity and she also tried to reach the 5 accused person named in the complaint. She spoke to A-2 Senthil Kumar requesting him to stop the vicious campaign and the type of emotional, mental and personal trauma which had affected the respondent is life seriously. She also asked him to arrange a meeting with the other accused so she could explain and request them not to harass the 2 nd respondent. But A2 was very hostile and cut the call of the 2nd respondent http://www.judis.nic.in 10 mother. A2 tweeted saying that a ''Kezhavi' (old woman) claiming to be Chinmayi's mother had called him requesting him to stop the personalized Twitter attacks on the 2nd respondent. This started a Twitter conversation between A2 Senthil Kumar and A4 Saravana Kumar Perumal (this can be found as page 1 in the typed set of the petitioner). A-2 Senthil Kumar's above tweet-''Konjam vayasayiduche...paravayillai umakku settaagum use pannikum;-)'' (She is a little old, but it doesn't matter, she will suit you, ''use her'). The '',-)'' symbol meant a winking image. The deeply insulting and humiliating content of the tweets above, compelled the 2nd respondent to copy the display picture of A-4, Sarava Kumar Perumal @ Vasantham who tweeted as @ sharankay and post the same picture on her facebook page, asking her followers if they could identify the man. This prompted A4 to send a tweet on 06.10.2012 threatening the 2nd respondent to remove her Facebook post. Despite their repeated entreaties to desist from continuing this online tirade against the 2nd respondent and her mother, the accused in a very brazen manner continued with their insulting messages and personalized attacks using their vulnerabilities as women. Left with no option, the 2nd respondent approached the police in view of clear evidence of cyber-harassment, bullying and insult meted to her and her mother as http://www.judis.nic.in 11 women, which are all offences under the IT Act, IPC and Womens Harassment Act. The FIR came to be registered on 19.10.2012.
12. The 2nd respondent further submitted that though Section 66 A of Information Technology Act has been struck down, the offence committed by the petitioner would squarely fall under Section 67 and the investigation Agency on conclusion of investigation can alter the charges depending upon the materials collected and placed reliance on following judgments.
1. Rupan Deol Bajaj Vs. Kanwar Pal Singh Gill. Reported in 1995 (6) SCC 194. 'Modesty is given as ''Womanly propriety of behaviour , scrupulous chastity of thought, speech and conduct. ''Modesty is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman, the ingredients being states of mind may have to be inferred from the offending circumstances of a given case'.
2.Additional District and Sessions Judge Vs. Registrar General High Court of Madhya Pradesh reported in 2015 (4) SCC 1991 ''Whether the perception of the harassed individual was conveyed to the person accused, would be very material in a case falling in the realm of over sensitivity.
3.Deputy Inspector General of Police Vs. S.Samuthiram http://www.judis.nic.in 12 reported in 2013 (1) SCC 598. ''Every citizen in this country has the right to live with dignity and honour which is a fundamental right guaranteed under Article 21 of the Constitution of India. Sexual harassment like eve teasing of women amounts to violation of rights guaranteed under Article 14, 15 as well.
Eve-teasing today has become a pernicious, horrid and disgusting practice.
Eve-teasing categorised into five heads.
1. Verbal eve-teasing
2. Physical eve-teasing
3. Pshychological harassment
4. Sexual harassment and
5. Harassment through some object.
4. Dr.Sanjay Prabakar Gadekar Vs. State of Maharastra reported in 2017 SCC online. Bom 2167. In view of Section 66 (A) of IT Act being struck down, it does not impede to proceed with other offences on the materials available.
13. The learned Government Advocate submitted that investigation in this case is in progress and the main server of twitter is in United States and hence, a communication has been sent to the Registrant-Twitter, San Francisco, United States for furnishing necessary details for further http://www.judis.nic.in 13 investigation. Further, the witnesses have been examined and charge sheet would be filed shortly. Further the specific contention of the 2nd respondent that offence under Section 67 of Information Technology Act has been made out would be considered based on the materials. It is also submitted that the other offences are also made out.
14. Considering the rival submissions and perusal of materials it is seen that petitioner has not denied sending such Twitter messages. According to the petitioner the messages are trivial and to be expected by female celebrities from men. The harassment continued despite 2nd respondent and her mother made clear their sensitiveness to such messages, shocking the sense of decency of a woman. Hence the petitioner's contention that he had not harassed the 2nd respondent cannot be countenanced.
15. Every person has the right to live with dignity and honour, which is a fundamental right guaranteed under Article 21 of the Constitution of India. The act of the petitioner amounts to violation of rights guaranteed under Articles 14, 15 of Constitution of India.
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16. The Apex Court has in categorical terms has held that quashing of FIR should not to be entertained and it has to be viewed with great care and caution. Investigation cannot be scuttled at the threshold and FIR is not an encyclopedia.
17. The respondent Police had found materials against the petitioner and charge sheet would be filed shortly. The petitioner and other accused having accessed the defacto complainant through communication device to communicate and transmit text, transmitting obscene material in electronic form are in violation of Information Technology Act, apart from IPC. Striking of 66 A of IT Act will no way hamper the investigation of the case for other offences under IT Act.
18. In view of the same, the petition is dismissed. Taking into consideration that the FIR in this case came to be registered during 2012, the respondent Police is directed to give priority in completing the investigation and file final report within a stipulated time preferably within a period of 3 months from the date of receipt of this order. http://www.judis.nic.in 15 05.08.2019 sk Internet:Yes/No Index : Yes/No Speaking/Non speaking order To
1.The Inspector of Police, Cyber Cell, Central Crime Branch, Egmore, Chennai-600 008.
2.The Public Prosecutor, Madras High Court.
M.NIRMAL KUMAR, J.
sk http://www.judis.nic.in 16 Pre-Delivery Judgment in Crl.O.P.No.232 of 2013 05.08.2019 http://www.judis.nic.in