TaxTMI 
TaxTMI 
2010 (4) TMI 1028
X X X X Extracts X X X X
X X X X Extracts X X X X
....t 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 differe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t 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 person....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 wer....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ry 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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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, 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sion 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 w....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 impu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....llant 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 accus....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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....