REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 913 of 2010
[Arising out of SLP (Crl.) No. 4010 of 2008]
S. Khushboo … Appellant
Versus
Kanniammal & Anr. ... Respondents
WITH
Criminal Appeal 914/2010 @SLP (Crl.) No. 6127 of 2008
Criminal Appeal 915/2010 @SLP (Crl.) No. 6257 of 2008
Criminal Appeal 916/2010 @SLP (Crl.) No. 6258 of 2008
Criminal Appeal 917/2010 @SLP (Crl.) No. 6259 of 2008
Criminal Appeal 918/2010 @SLP (Crl.) No. 7049 of 2008
Criminal Appeal 919/2010 @SLP (Crl.) No. 6264 of 2008
Criminal Appeal 920/2010 @SLP (Crl.) No. 6277 of 2008
Criminal Appeal 921/2010 @SLP (Crl.) No. 7052 of 2008
Criminal Appeal 922/2010 @SLP (Crl.) No. 7053 of 2008
Criminal Appeal 923/2010 @SLP (Crl.) No. 7050 of 2008
Criminal Appeal 924/2010 @SLP (Crl.) No. 7051 of 2008
Criminal Appeal 925/2010 @SLP (Crl.) No. 4761 of 2008
Criminal Appeal 926/2010 @SLP (Crl.) No. 4772 of 2008
Criminal Appeal 927/2010 @SLP (Crl.) No. 4767 of 2008
Criminal Appeal 928/2010 @SLP (Crl.) No. 4763 of 2008
Criminal Appeal 929/2010 @SLP (Crl.) No. 4765 of 2008
Criminal Appeal 930/2010 @SLP (Crl.) No. 4762 of 2008
Criminal Appeal 931/2010 @SLP (Crl.) No. 4764 of 2008
Criminal Appeal 932/2010 @SLP (Crl.) No. 4770 of 2008
Criminal Appeal 933/2010 @SLP (Crl.) No. 4769 of 2008
J U D G M E N T
Dr. B.S. CHAUHAN, J
1. Leave granted in all the cases.
2. The appellant is a well known actress who has approached
this Court to seek quashing of criminal proceedings pending
against her. As many as 23 Criminal Complaints were filed
against her, mostly in the State of Tamil Nadu, for the
offences contemplated under Sections 499, 500 and 505 of
the Indian Penal Code, 1860 [hereinafter ‘IPC’] and
Sections 4 and 6 of the Indecent Representation of Women
(Prohibition) Act, 1986 [hereinafter ‘Act 1986’]. The
trigger for the same were some remarks made by the
appellant in an interview to a leading news magazine and
later on the same issue was reported in a distorted manner
in another periodical. Faced with the predicament of
contesting the criminal proceedings instituted against her
in several locations, the appellant had approached the High
Court of Madras, praying for the quashing of these
proceedings through the exercise of its inherent power
under Section 482 of the Code of Criminal Procedure, 1973
[hereinafter ‘Cr.PC.’]. The High Court rejected her plea
vide impugned judgment and order dated 30.4.2008. At the
same time, in order to prevent the inconvenience of
litigating the same subject-matter in multiple locations
directed that all the cases instituted against the
appellant be consolidated and tried together by the Chief
Metropolitan Magistrate, Egmore (Chennai). Aggrieved by the
aforesaid judgment, the appellant approached this Court by
way of a batch of Special Leave Petitions.
3. Before addressing the legal aspects of the case before
us, it would be useful to examine the relevant facts. In
September 2005, ‘India Today’ a fortnightly news magazine
had conducted a survey on the subject of the sexual habits
of people residing in the bigger cities of India. One of
the issues discussed as part of this survey was the
increasing incidence of pre-marital sex. As a part of this
exercise, the magazine had gathered and published the views
expressed by several individuals from different segments of
society, including those of the appellant. The appellant
expressed her personal opinion wherein she had noted the
increasing incidence of pre-marital sex, especially in the
context of live-in relationships and called for the
societal acceptance of the same. However, appellant had
also qualified her remarks by observing that girls should
take adequate precautions to prevent unwanted pregnancies
and the transmission of venereal diseases. This can be
readily inferred from the statement which was published, a
rough translation of which is reproduced below:
“According to me, sex is not only concerned with
the body; but also concerned with the conscious.
I could not understand matters such as changing
boyfriends every week. When a girl is committed
to her boyfriend, she can tell her parents and
go out with him. When their daughter is having a
serious relationship, the parents should allow
the same. Our society should come out of the
thinking that at the time of the marriage, the
girls should be with virginity.
None of the educated men, will expect that the
girl whom they are marrying should be with
virginity. But when having sexual relationship
the girls should protect themselves from
conceiving and getting venereal diseases.”
These remarks were published alongside a survey, the
relevant extracts of which are stated below:
“Will you marry a person who had relationship
with others?
18% - Yes, 71% - No
Is it necessary to be a virgin till the time of
marriage?
65% - Yes, 26% - No
The remaining percentage of people said: Do not
know/Cannot say
82% women had given an opinion that a girl should
be a virgin at the time of marriage.”
4. Subsequently, ‘Dhina Thanthi’, a Tamil daily carried a
news item on 24.9.2005 which first quoted the appellant’s
statement published in ‘India Today’ and then opined that
it had created a sensation all over the State of Tamil
Nadu. This news item also reported a conversation between
the appellant and a correspondent from ‘Dhina Thanthi’,
wherein the appellant had purportedly defended her views in
the following manner (rough translation reproduced below):
“The persons who are protesting against my
interview, are talking about which culture? Is
there anyone who does not know about sex in Tamil
Nadu? Is there anyone who does not know about
AIDS? How many men and women do not have sex
before marriage?
Why are people saying that after the marriage the
husband and wife should be honest and faithful to
each other? One should have confidence in the
other, only to avoid the mistakes from being
committed. If the husband, without the knowledge
of the wife, or the wife, without the knowledge
of the husband, have sex with other persons, if a
disease is caused through that, the same will
affect both the persons. It will also affect the
children. Only because of this, they are saying
like that.”
However, soon after the publication of the above mentioned
news item, the appellant had sent a legal notice dated
2.10.2005 to the Editor of ‘Dhina Thanthi’, categorically
denying that she had made the statement quoted above. In
fact, the appellant had asked the publisher to withdraw the
news-item carried on 24.9.2005 and to publish her
objections prominently within three days of receipt of the
notice, failing which the appellant would be constrained to
take appropriate legal action against the newspaper.
5. As outlined above, the publication of these statements
in ‘India Today’ and ‘Dhina Thanthi’ drew criticism from
some quarters and several persons and organisations filed
criminal complaints against the appellant. For instance,
the complainant in the appeal arising out of SLP (Crl) No.
4010 of 2008 has stated that she is a married woman who is
the Treasurer of a District-level unit of the Pattali Makal
Katchi [hereinafter ‘PMK’], a political party, and is also
involved in social service. She had quoted some parts of
the statements published in ‘India Today’ and ‘Dhina
Thanthi’ to allege that the appellant’s interview had
brought great shame on her since it had suggested that
women of her profile had engaged in premarital sex. The
complainant further alleged that the appellant’s remarks
had caused mental harassment to a large section of women,
and in particular women from Tamil Nadu were being looked
down upon with disrespect and contempt.
6. In the appeal arising out of SLP (Crl.) 4764 of 2008,
the complainant is a male advocate who is a District
Secretary of the PMK for Salem District. In his complaint,
there is no direct reference to the news-item published in
‘Dhina Thanthi’ on 24.9.2005. Instead the complainant has
stated that he found second-hand accounts of the same to be
quite shocking since the appellant had questioned the need
for women to maintain their virginity or chastity. It was
alleged that these remarks were an abuse against the
dignity of the Tamil women and that they had grossly
affected and ruined the culture and morality of the people
of the State. It was further submitted that these
statements could persuade people to involve themselves in
unnatural crimes and that the appellant’s acts amounted to
commission of offences punishable under Sections 499, 500,
504, 505(1)(b) and 509 IPC read with Section 3 and 4 of
Act 1986. Similarly, in the appeal arising out of SLP
(Crl.) 6127 of 2008, the complainant is a lady advocate who
has been practicing in the Trichy District Courts for more
than 10 years. She has quoted some portions from the
statements published in ‘India Today’ and ‘Dhina Thanthi’
to submit that the appellant’s acts were punishable under
Sections 292, 500, 504, 505(1)(b) and (c), 505(2) and 509
IPC read with Section 6 of Act 1986.
7. Likewise, in the appeal arising out of SLP (Crl.) 6259
of 2008, the complainant has stated that she is a married
woman belonging to a reputed family and that she is serving
as the President of the District Magalir Association of the
PMK (in Thiruvarur) and rendering social service. In her
complaint, some parts of the appellant’s statements have
been quoted to allege that she had suffered great mental
agony and shame since it was suggested that all women in
Tamil Nadu had lost their virginity before marriage. In
this respect, the complainant has alleged that the
appellant had committed offences punishable under Sections
499, 500, 504, 505(1)(b) and 509 IPC read with Section 6
of Act 1986. It is noteworthy that in most of the other
cases filed in various districts of Tamil Nadu, the
complainants are functionaries of the PMK and similar
allegations have been levelled against the appellant. Oddly
enough, one of the complaints had even been filed in
Indore, Madhya Pradesh.
8. As mentioned earlier, the appellant approached the High
Court of Madras to seek quashing of all the criminal
proceedings instituted against her in this connection. In
its judgment dated 30.4.2008, the High Court refused to
quash the proceedings by exercising its inherent powers
under Section 482 Cr.PC, on the premise that the relevant
considerations in this case were questions of fact which
were best left to be determined by a trial judge. The High
Court noted that two basic questions were involved in the
case. Firstly, whether the appellant could claim any of the
recognised defences against the allegations of having
committed defamation, as contemplated by Section 499 IPC.
Secondly, whether the complainants could at all be
described as ‘aggrieved persons’ within the meaning of
Section 199 Cr.PC since that was linked to the question of
whether the complaints had been made in a bona fide manner.
The High Court thought it fit to leave both these questions
for consideration by a trial judge, and in a partial
reprieve to the appellant it was directed that all the
criminal proceedings pending against her be consolidated
and tried by the Chief Metropolitan Magistrate at Egmore,
Chennai. However, the High Court also proceeded to record
its own views regarding the contents of the appellant’s
statements and even made some strong observations
condemning the incidence of premarital sex and live-in
relationships.
9. In the proceedings before us, Ms. Pinki Anand, learned
counsel appearing for the appellant, has submitted that the
complainants (respondents in these appeals) were not
‘persons aggrieved’ within the meaning of Section 199(1)(b)
Cr.PC and hence they were not competent to institute
private complaints for the alleged offences. It was stated
that the appellant had made a fair and reasonable comment
as a prudent person, and therefore, the opinion expressed
by the appellant is fully protected under Article 19(1)(a)
of the Constitution of India which guarantees freedom of
speech and expression to all citizens. Furthermore, it was
contended that even if the allegations in the various
complaints are taken on their face value and accepted in
their entirety, the same do not disclose any offence
whatsoever and the opinion of the appellant does not, by
any means, fall within the ambit of Sections 499, 500 and
505 IPC or Sections 3 and 4 of Act 1986. It was also
canvassed that the criminal proceedings had been instituted
in a mala fide manner by the workers of a particular
political party, with the intention of vilifying the
appellant and gaining undue political mileage.
10. In response, Sh. Kanagaraj, Sr. Adv., Sh. S. Gowthaman,
Adv. and Sh. B. Balaji, Adv. appearing for the respondents,
submitted that since the High Court has refused to quash
the complaints, this Court should not interfere either
since the complaints require determination of factual
controversies that are best left to be decided by a court
of first instance. They have asserted that the complainants
in these cases are mostly women belonging to Tamil Nadu,
who were personally aggrieved by the appellant’s remarks.
It was argued that the endorsement of pre-marital sex by a
prominent person such as the appellant would have a morally
corruptive effect on the minds of young people. Her
statement would definitely obscure some basic moral values
and expose young people to bizarre ideas about premarital
sex, thereby leading to deviant behaviour which would
adversely affect public notions of morality. It was
contended that the constitutional protection for speech and
expression is not absolute and that it is subject to
reasonable restrictions based on considerations of ‘public
order’, ‘defamation’, ‘decency and morality’ among other
grounds.
11. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
12. In order to decide this case, it will not be proper for
us to either condemn or endorse the views expressed by the
appellant. When the criminal law machinery is set in
motion, the superior courts should not mechanically use
either their inherent powers or writ jurisdiction to
intervene with the process of investigation and trial.
However, such forms of judicial review can be exercised to
prevent a miscarriage of justice or to correct some grave
errors that might have been committed by the subordinate
courts. [See decision of this Court in: M/s Pepsi Foods
Ltd. & Anr. Vs. Special Judicial Magistrate & Ors., AIR
1998 SC 128]. In the past, this Court has even laid down
some guidelines for the exercise of inherent power by the
High Courts to quash criminal proceedings in such
exceptional cases. We can refer to the decision in State of
Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., AIR 1992 SC 604,
to take note of two such guidelines which are relevance for
the present case :-
“(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 entirety do not prima facie constitute any
offence or make out a case against the accused.
… (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.”
13. It is of course a settled legal proposition that in a
case where there is sufficient evidence against the
accused, which may establish the charge against him/her,
the proceedings cannot be quashed. In M/s Medchl Chemicals
& Pharma Ltd. Vs. M/s Biological E. Ltd. & Ors., AIR 2000
SC 1869, this Court observed that a criminal complaint or a
charge sheet can only be quashed by superior courts in
exceptional circumstances, such as when the allegations in
a complaint do not support a prima facie case for an
offence. Similarly, in M/s Zandu Pharmaceutical Works Ltd.
& Ors. Vs. Mohd. Sharaful Haque & Ors., AIR 2005 SC 9, this
Court has held that criminal proceedings can be quashed but
such a power is to be exercised sparingly and only when
such an exercise is justified by the tests that have been
specifically laid down in the statutory provisions
themselves. It was further observed that superior courts
“may examine the questions of fact” when the use of the
criminal law machinery could be in the nature of an abuse
of authority or when it could result in injustice. In
Shakson Belthissor Vs. State of Kerala & Anr., (2009) 14
SCC 466, this Court relied on earlier precedents to clarify
that a High Court while exercising its inherent
jurisdiction should not interfere with a genuine complaint
but it should certainly not hesitate to intervene in
appropriate cases. In fact it was observed:
“One of the paramount duties of the superior
courts is to see that a person who is apparently
innocent is not subjected to prosecution and
humiliation on the basis of a false and wholly
untenable complaint.”
14. There can be no quarrel about this Court’s competence
to quash criminal proceedings pending before the
subordinate courts. However, this power must be exercised
sparingly and with circumspection. In light of the position
summarized above, we can examine the present case with two
considerations in mind, namely whether the allegations made
against the appellant support a prima facie case for the
offences mentioned in the respective complaints, and
whether the complaints were made in a bona fide manner.
15. Perusal of the complaints reveals that most of the
allegations have pertained to offences such as defamation
(Sections 499, 501 and 502 IPC), obscenity (Section 292
IPC), indecent representation of women and incitement among
others. At the outset, we are of the view that there is
absolutely no basis for proceeding against the appellant in
respect of some of the alleged offences. For example, the
Act, 1986 was enacted to punish publishers and advertisers
who knowingly disseminate materials that portray women in
an indecent manner. However, this statute cannot be used in
the present case where the appellant has merely referred to
the incidence of pre-marital sex in her statement which was
published by a news magazine and subsequently reported in
another periodical. It would defy logic to invoke the
offences mentioned in this statute to proceed against the
appellant, who cannot be described as an ‘advertiser’ or
‘publisher’ by any means. Similarly, Section 509 IPC
criminalises a ‘word, gesture or act intended to insult the
modesty of a woman’ and in order to establish this offence
it is necessary to show that the modesty of a particular
woman or a readily identifiable group of women has been
insulted by a spoken word, gesture or physical act. Clearly
this offence cannot be made out when the complainants’
grievance is with the publication of what the appellant had
stated in a written form. Likewise, some of the complaints
have mentioned offences such as those contemplated by
Section 153A IPC (‘Promoting enmity between different
groups etc.,’) which have no application to the present
case since the appellant was not speaking on behalf of one
group and the content of her statement was not directed
against any particular group either.
16. Coming to the substance of the complaints, we fail to
see how the appellant’s remarks amount to ‘obscenity’ in
the context of Section 292 IPC. Clause (1) to Section 292
states that the publication of a book, pamphlet, paper,
writing, drawing, painting, representation, figure, etc.,
will be deemed obscene, if –
• It is lascivious (i.e. expressing or causing sexual
desire) or
• Appeals to the prurient interest (i.e. excessive
interest in sexual matters), or
• If its effect, or the effect of any one of the items,
tends to deprave and corrupt persons, who are likely
to read, see, or hear the matter contained in such
materials.
In the past, authors as well as publishers of artistic and
literary works have been put to trial and punished under
this section. In the present case, the appellant takes full
responsibility for her statement which was published in
‘India Today’, a leading news magazine. It would be apt to
refer back to the decision of this Court in Ranjit D.
Udeshi Vs. State of Maharashtra, AIR 1965 SC 881, wherein
it was held that if a mere reference to sex by itself is
considered obscene, no books can be sold except those which
are purely religious. It was observed that in the field of
art and cinema, the adolescent is shown situations which
even a quarter of a century ago would be considered
derogatory to public morality, but having regard to changed
conditions, the same are taken for granted without in any
way tending to debase or debauch the mind. What is to be
considered is whether a class of persons, not an isolated
case, into whose hands the book, article or story falls
will suffer in their moral outlook or become depraved by
reading it or might have impure and lecherous thoughts
aroused in their minds. Even though the decision in that
case had upheld a conviction for the sale of a literary
work, it became clear that references to sex cannot be
considered obscene in the legal sense without examining the
context of the reference.
17. This position was later clarified in Samaresh Bose Vs.
Amal Mitra, AIR 1986 SC 967, where the Court held that in
judging the question of obscenity, the judge in the first
place should try to place himself in the position of the
author and from the viewpoint of the author, the judge
should try to understand what is it that the author seeks
to convey and whether what the author conveys has any
literary and artistic value. Judge should thereafter place
himself in the position of a reader of every age group in
whose hands the book is likely to fall and should try to
appreciate what kind of possible influence the book is
likely to have on the minds of the reader.
18. There are numerous other decisions, both from India and
foreign country which mandate that ‘obscenity’ should be
gauged with respect to contemporary community standards
that reflect the sensibilities as well as the tolerance
levels of an average reasonable person. Owing to the clear
formulation on this issue it is not necessary for us to
discuss these precedents at length. In the present case,
the appellant has merely referred to the increasing
incidence of pre-marital sex and called for its societal
acceptance. At no point of time appellant described the
sexual act or said anything that could arouse sexual
desires in the mind of a reasonable and prudent reader.
Furthermore, the statement has been made in the context of
a survey which has touched on numerous aspects relating to
the sexual habits of people in big cities. Even though this
survey was not part of a literary or artistic work, it was
published in a news magazine thereby serving the purpose of
communicating certain ideas and opinions on the above-
mentioned subject. In the long run, such communication
prompts a dialogue within society wherein people can choose
to either defend or question the existing social mores. It
is difficult to appreciate the claim that the statements
published as part of the survey were in the nature of
obscene communications.
19. We must also respond to the claim that the appellant’s
remarks could have the effect of misguiding young people by
encouraging them to indulge in premarital sex. This claim
is a little far-fetched since the appellant had not
directed her remarks towards any individual or group in
particular. All that the appellant did was to urge the
societal acceptance of the increasing instances of
premarital sex when both partners are committed to each
other. This cannot be construed as an open endorsement of
sexual activities of all kinds. If it were to be considered
so, the criminal law machinery would have to take on the
unenforceable task of punishing all writers, journalists or
other such persons for merely referring to any matter
connected with sex in published materials. For the sake of
argument, even if it were to be assumed that the
appellant’s statements could encourage some people to
engage in premarital sex, no legal injury has been shown
since the latter is not an offence.
20. “Offence” means ‘an act or instance of offending’;
‘commit an illegal act’ and illegal means, ‘contrary to or
forbidden by law’.
“Offence” has to be read and understood in the context
as it has been prescribed under the provisions of Sections
40, 41 and 42 IPC which cover the offences punishable under
I.P.C. or under special or local law or as defined under
Section 2(n) Cr.P.C. or Section 3(38) of the General
Clauses Act, 1897 (vide Proprietary Articles Trade
Association Vs. Attorney General for Canada AIR 1931 PC 94;
Thomas Dana Vs. State of Punjab AIR 1959 SC 375; Jawala Ram
& Ors. Vs. The State of Pepsu (now Punjab) & Ors. AIR 1962
SC 1246; and Standard Chartered Bank & Ors. Vs. Directorate
of Enforcement & Ors. AIR 2006 SC 1301).
21. While it is true that the mainstream view in our
society is that sexual contact should take place only
between marital partners, there is no statutory offence
that takes place when adults willingly engage in sexual
relations outside the marital setting, with the exception
of ‘adultery’ as defined under Section 497 IPC. At this
juncture, we may refer to the decision given by this Court
in Lata Singh Vs. State of U.P. & Anr., AIR 2006 SC 2522,
wherein it was observed that a live-in relationship between
two consenting adults of heterogenic sex does not amount to
any offence (with the obvious exception of ‘adultery’),
even though it may be perceived as immoral. A major girl
is free to marry anyone she likes or “live with anyone she
likes”. In that case, the petitioner was a woman who had
married a man belonging to another caste and had begun
cohabitation with him. The petitioner’s brother had filed a
criminal complaint accusing her husband of offences under
Sections 366 and 368 IPC, thereby leading to the
commencement of trial proceedings. This Court had
entertained a writ petition and granted relief by quashing
the criminal trial. Furthermore, the Court had noted that
‘no offence was committed by any of the accused and the
whole criminal case in question is an abuse of the process
of the Court’.
22. It would also be instructive to refer to a decision of
the House of Lords (U.K.) in Gillick Vs. West Norfolk and
Wisbech Area Health Authority, (1985) 3 All ER 402. In that
case, mother of a teenage girl had questioned the decision
of the National Health Service (NHS) to issue a circular to
local area health authorities which contained guidelines
for rendering advice about contraceptive methods to girls
under the age of 16 years. Objections were raised against
this circular on the ground that the health service
authorities had no competence to render such advice and
that doing so could adversely affect young children while
at the same time interfering with parental autonomy in the
matter of bringing up children. The majority decision
rejected the challenge against the circular by clarifying
that the rendering of advice about contraceptive methods
and their provision by medical professionals did not amount
to a sexual offence. Among the several aspects discussed in
that case, it was held that the provision of information
about contraceptive facilities to girls under the age of 16
years could not be opposed on the ground that such
information could potentially encourage more sexual
activity by the teenagers. For the purpose of the present
case, this decision supports the reasoning that we must
fully understand the context and the purpose for which
references to sex have been made in any given setting.
23. We now turn to the question whether the appellant’s
remarks could reasonably amount to offence of defamation as
defined under Section 499 IPC. In the impugned judgment
dated 30.4.2008, the High Court observed that as to whether
the appellant could claim a defence against the allegations
of defamation was a factual question and thus would be
decided by a trial Court. However, even before examining
whether the appellant can claim any of the statutory
defences in this regard, the operative question is whether
the allegations in the impugned complaints support a prima
facie case of defamation in the first place. It is our
considered view that there is no prima facie case of
defamation in the present case. This will become self-
evident if we draw attention to the key ingredients of the
offence contemplated by Section 499 IPC, which reads as
follows:
“499. Defamation.- Whoever, by words either
spoken or intended to be read, or by signs or by
visible representations, makes or publishes any
imputation concerning any person intending to
harm, or knowing or having reason to believe that
such imputation will harm, the reputation of such
person, is said, except in the cases hereinafter
expected, to defame that person.
Explanation 1. – It may amount to defamation to
impute anything to a deceased person, if the
imputation would harm the reputation of that
person if living, and is intended to be hurtful
to the feelings of his family or other near
relatives.
Explanation 2. – It may amount to defamation to
make an imputation concerning a company or an
association or collection of persons as such.
Explanation 3. – An imputation in the form of an
alternative or expressed ironically, may amount
to defamation.
Explanation 4.- No imputation is said to harm a
person’s reputation, unless that imputation
directly or indirectly, in the estimation of
others, lowers the moral or intellectual
character of that person, or lowers the character
of that person in respect of his caste or of his
calling, or lowers the credit of that person, or
causes it to be believed that the body of that
person is in a loathsome state, or in a state
generally considered as disgraceful. …”
(emphasis supplied)
The definition makes it amply clear that the accused must
either intend to harm the reputation of a particular person
or reasonably know that his/her conduct could cause such
harm. Explanation 2 to Section 499 further states that ‘It
may amount to defamation to make an imputation concerning a
company or an association or collection of persons as
such.’
24. With regard to the complaints in question, there is
neither any intent on part of the appellant to cause harm
to the reputation of the complainants nor can we discern
any actual harm done to their reputation. In short, both
the elements i.e. mens rea and actus reus are missing. As
mentioned earlier, the appellant’s statement published in
‘India Today’ (in September 2005) is a rather general
endorsement of premarital sex and her remarks are not
directed at any individual or even at a ‘company or an
association or collection of persons’. It is difficult to
fathom how the appellant’s views can be construed as an
attack on the reputation of anyone in particular. Even if
we refer to the remarks published in ‘Dhina Thanthi’ (dated
24.9.2005) which have been categorically denied by the
appellant, there is no direct attack on the reputation of
anyone in particular. Instead, the purported remarks are in
the nature of rhetorical questions wherein it was asked if
people in Tamil Nadu were not aware of the incidence of
sex. Even if we consider these remarks in their entirety,
nowhere has it been suggested that all women in Tamil Nadu
have engaged in premarital sex. That imputation can only be
found in the complaints that were filed by the various
respondents. It is a clear case of the complainants reading
in too much into the appellant’s remarks.
25. This takes us to the question of whether the impugned
complaints were made in a bona fide manner. As we have
already noted, most of the complainants are associated with
the PMK, a political party which is active in the State of
Tamil Nadu. This fact does add weight to the suggestion
that the impugned complaints have been filed with the
intention of gaining undue political mileage. It may be
reiterated here that in respect of the offence of
defamation, Section 199 Cr.PC mandates that the Magistrate
can take cognizance of the offence only upon receiving a
complaint by a person who is aggrieved. This limitation on
the power to take cognizance of defamation serves the
rational purpose of discouraging the filing of frivolous
complaints which would otherwise clog the Magistrate’s
Courts. There is of course some room for complaints to be
brought by persons other than those who are aggrieved, for
instance when the aggrieved person has passed away or is
otherwise unable to initiate legal proceedings. However, in
given facts of the present case, we are unable to see how
the complainants can be properly described as ‘persons
aggrieved’ within the meaning of Section 199(1)(b) Cr.PC.
As explained earlier, there was no specific legal injury
caused to any of the complainants since the appellant’s
remarks were not directed at any individual or a readily
identifiable group of people. In M.S. Jayaraj Vs.
Commissioner of Excise, Kerala & Ors., (2000) 7 SCC 552,
this Court observed as under:
“The ‘person aggrieved’ means a person who is
wrongfully deprived of his entitlement which he
is legally entitled to receive and it does not
include any kind of disappointment or personal
inconvenience. ‘Person aggrieved’ means a person
who is injured or one who is adversely affected
in a legal sense.”
26. We can also approvingly refer to an earlier decision of
this Court in G. Narasimhan & Ors. Vs. T.V. Chokappa, AIR
1972 SC 2609. In that case a controversy had arisen after
‘The Hindu’, a leading newspaper had published a report
about a resolution passed by the Dravida Kazhagham, a
political party, in its conference held on January 23-24,
1971. Among other issues, the resolution also included the
following words:
“It should not be made an offence for a person’s
wife to desire another man.”
The Hindu, in its report, gave publicity to this resolution
by using the following words:
“The Conference passed a resolution requesting
the Government to take suitable steps to see that
coveting another man’s wife is not made an
offence under the Indian Penal Code.”
A complaint under Sections 499, 500 and 501 IPC was filed
in response to this report. Like the present case, the
Court had to consider whether the complainant had the
proper legal standing to bring such a complaint. The Court
did examine Section 198 of the Code of Criminal Procedure,
1898 (analogous to Section 199 of the Cr.PC. 1973) and
observed that the said provision laid down an exception to
the general rule that a criminal complaint can be filed by
anyone irrespective of whether he is an “aggrieved person”
or not. But there is a departure from this norm in so far
as the provision permits only an “aggrieved person” to move
the Court in case of defamation. This section is mandatory
and it is a settled legal proposition that if a Magistrate
were to take cognizance of the offence of defamation on a
complaint filed by one who is not an “aggrieved person”,
the trial and conviction of an accused in such a case by
the Magistrate would be void and illegal. This Court
further noted that the news-item in question did not
mention any individual person nor did it contain any
defamatory imputation against any individual. Accordingly,
it was held that the complainant was not a ‘person
aggrieved’ within the meaning of Section 198 CrPC, 1898.
The Court also took note of Explanation 2 to Section 499
IPC which contemplates defamation of ‘a company or an
association or any collection of persons as such’.
Undoubtedly, the explanation is wide but in order to
demonstrate the offence of defamation, such a collection of
persons must be an identifiable body so that it is possible
to say with precision that a group of particular persons,
as distinguished from the rest of the community stood
defamed. In case the identity of the collection of persons
is not established so as to be relatable to the defamatory
words or imputations, the complaint is not maintainable. In
case a class is mentioned, if such a class is indefinite,
the complaint cannot be entertained. Furthermore, if it is
not possible to ascertain the composition of such a class,
the criminal prosecution cannot proceed.
While deciding the case, this Court placed reliance on
the judgment of the House of Lords in Knupffer Vs. London
Express Newspaper Ltd. (1944) 1 ALL ER 495, wherein it had
been held that it is an essential element of the cause of
action for defamation that the words complained of should
be published “of the complainant/plaintiff”. Where he is
not named, the test would be whether the words would
reasonably lead people acquainted with him to the
conclusion that he was the person referred to.
In fact, it is the reputation of an individual person
which must be in question and only such a person can claim
to have “a legal peg for a justifiable claim to hang on”.
27. Coming back to the facts of the present case, the
complainants have alleged defamation in respect of
imputations against the character of Tamil-speaking women,
which could perhaps be viewed as a class of persons.
However, we have already explained, the appellant’s
remarks did not suggest that all women in Tamil Nadu have
engaged in premarital sex. In fact her statement in ‘India
Today’ did not refer to any specific individual or group at
all. If we refer to one of the questions asked as part of
the concerned survey, one of the answers shows that 26% of
the people who responded to the same did not think that it
was necessary for women to retain their virginity till the
time of marriage. Clearly the appellant was not alone in
expressing such a view, even though it may be unpopular or
contrary to the mainstream social practices. Even if it
were assumed that the news-item carried in ‘Dhina Thanthi’
caused mental agony to some sections of women in Tamil
Nadu, there is no prima facie case for any offence. What is
interesting to note is that not all of the complainants are
women, and in fact almost all the complainants are
associated with a particular political party.
28. We are of the view that the institution of the numerous
criminal complaints against the appellant was done in a
mala fide manner. In order to prevent the abuse of the
criminal law machinery, we are therefore inclined to grant
the relief sought by the appellant. In such cases, the
proper course for Magistrates is to use their statutory
powers to direct an investigation into the allegations
before taking cognizance of the offences alleged. It is not
the task of the criminal law to punish individuals merely
for expressing unpopular views. The threshold for placing
reasonable restrictions on the ‘freedom of speech and
expression’ is indeed a very high one and there should be a
presumption in favour of the accused in such cases. It is
only when the complainants produce materials that support a
prima facie case for a statutory offence that Magistrates
can proceed to take cognizance of the same. We must be
mindful that the initiation of a criminal trial is a
process which carries an implicit degree of coercion and it
should not be triggered by false and frivolous complaints,
amounting to harassment and humiliation to the accused.
29. Even though the constitutional freedom of speech and
expression is not absolute and can be subjected to
reasonable restrictions on grounds such as ‘decency and
morality’ among others, we must lay stress on the need to
tolerate unpopular views in the socio-cultural space. The
framers of our Constitution recognised the importance of
safeguarding this right since the free flow of opinions and
ideas is essential to sustain the collective life of the
citizenry. While an informed citizenry is a pre-condition
for meaningful governance in the political sense, we must
also promote a culture of open dialogue when it comes to
societal attitudes. Admittedly, the appellant’s remarks did
provoke a controversy since the acceptance of premarital
sex and live-in relationships is viewed by some as an
attack on the centrality of marriage. While there can be no
doubt that in India, marriage is an important social
institution, we must also keep our minds open to the fact
that there are certain individuals or groups who do not
hold the same view. To be sure, there are some indigenous
groups within our country wherein sexual relations outside
the marital setting are accepted as a normal occurrence.
Even in the societal mainstream, there are a significant
number of people who see nothing wrong in engaging in
premarital sex. Notions of social morality are inherently
subjective and the criminal law cannot be used as a means
to unduly interfere with the domain of personal autonomy.
Morality and Criminality are not co-extensive. In the
present case, the substance of the controversy does not
really touch on whether premarital sex is socially
acceptable. Instead, the real issue of concern is the
disproportionate response to the appellant’s remarks. If
the complainants vehemently disagreed with the appellant’s
views, then they should have contested her views through
the news media or any other public platform. The law should
not be used in a manner that has chilling effects on the
‘freedom of speech and expression’. It would be apt to
refer to the following observations made by this Court in
S. Rangarajan Vs. P. Jagjivan Ram & Ors., (1989) 2 SCC 574,
which spell out the appropriate approach for examining the
scope of ‘reasonable restrictions’ under Art. 19(2) of the
Constitution that can be placed on the freedom of speech
and expression:-
“ … Our commitment of freedom of expression
demands that it cannot be suppressed unless the
situations created by allowing the freedom are
pressing and the community interest is
endangered. The anticipated danger should not be
remote, conjectural or far-fetched. It should
have proximate and direct nexus with the
expression. The expression of thought should be
intrinsically dangerous to the public interest.
In other words, the expression should be
inseparably locked up with the action
contemplated like the equivalent of a ‘spark in a
powder keg’.
The Court further held:
“ … The standard to be applied by the Board or
courts for judging the film should be that of an
ordinary man of common sense and prudence and not
that of an out of the ordinary or hypersensitive
man … The different views are allowed to be
expressed by proponents and opponents not because
they are correct, or valid but because there is
freedom in this country for expressing even
differing views on any issue. … 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 of the
views of others. Intolerance is as much dangerous
to democracy as to the person himself.”
30. Thus, dissemination of news and views for popular
consumption is permissible under our constitutional scheme.
The different views are allowed to be expressed by the
proponents and opponents. A culture of responsible reading
is to be inculcated amongst the prudent readers. Morality
and criminality are far from being co-extensive. An
expression of opinion in favour of non-dogmatic and non-
conventional morality has to be tolerated as the same
cannot be a ground to penalise the author.
31. Before saying omega, it is necessary for us to point
out certain unwarranted developments that have taken place
ever since the matter was heard till date. In fact, during
the course of hearing, certain queries were put to the
learned counsel appearing for parties so as to clarify the
legal issue involved in the matter but unfortunately, those
queries have been highly misunderstood not only by media
but also by common man. As a result thereof, we have been
flooded with several letter petitions making a prayer for
review of the order passed by us. It is pertinent to
mention here that no order was passed by us and only during
the course of hearing, we had either given some instances
or put some questions to the learned counsel which were
answered by them. Thus, this hyper active attitude of the
common man was, indeed, not called for. Some have even
gone to the extent of telling us that we should have known
the Indian mythology before putting such question. Thus,
whatever we have said during the course of the hearing
should be reviewed. We fail to understand how such an
attitude could be adopted by those learned persons who were
involved in sending various letter petitions to us.
Admittedly, all those persons who have sent letters to us
were not present on that particular date but must have
gathered information from the print and electronic media
which evoked their sentiments to such an extent that they
prayed for review.
32. It is, therefore, not only desirable but imperative
that electronic and news media should also play positive
role in presenting to general public as to what actually
transpires during the course of the hearing and it should
not be published in such a manner so as to get unnecessary
publicity for its own paper or news channel. Such a
tendency, which is indeed growing fast, should be stopped.
We are saying so as without knowing the reference in
context of which the questions were put forth by us, were
completely ignored and the same were misquoted which raised
unnecessary hue and cry.
33. We hope and trust in future, they would be little more
careful, responsible and cautious in this regard.
34. In conclusion, we find that the various complaints
filed against the appellant do not support or even draw a
prima facie case for any of the statutory offences as
alleged. Therefore, the appeals are allowed and the
impugned judgment and order of the High Court dated
30.4.2008 is set aside. The impugned criminal proceedings
are hereby quashed.
……………………….CJI.
.………………………. J.
(DEEPAK VERMA)
.………………………. J.
(Dr. B.S. CHAUHAN)
New Delhi
April 28, 2010
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