Aroon Purie vs H.L. Varma and Another

T.K. Chandrashekhara Das, J.—This petition arises out of process that was issued by the Additional Chief Metropolitan Magistrate, 5th Court at Dadar, Bombay in case No. 64/S/91 against the petitioner. This process was issued by the Magistrate on a complaint filed by the first respondent alleging that the petitioner has committed an offence u/s 153 read with 114 of the IPC.

The complainant before the Magistrate is a practising advocate in Bombay. It is alleged in the complaint that he is a worshipper of Chhatrapati Shivaji, who was considered as an incarnation of God, sent to the earth to preserve, protect and propagate the Sanatah Hindu Dharma. It is alleged that the magazine INDIA TODAY has organized a debate on the subject of ''secularism" in 1991. In the said debate prominent personalities of different walks of life M/s. M. J. Akbar, Bipan Chandra, Sitaram Ycchuri, Jawed Habeeb. Swapan Dasgupta, Girilal Jain, Arun Jaitley. Ashis Nandy, Khushwant Singh, Jaswant Singh participated. Petitioner Arun Purie who had chaired the said debate in which each of the participants expressed their views about the subject ''secularism''. In the course of debate accused No. 3 Mr. Khuswant Singh made following remarks, allegedly derogatory.

India is secular, Advani says, because of the Hindus, All right, I am willing to concede that if the Muslims had been the same number as the Hindus are they would have declared it an Islamic State. But our pride is that we are a secular State, despite it being over 80 per cent Hindus.

It is Hindus like Gandhi and Nehru who did it and not Hindus like these. They are fanatics, narrow-minded with no vision of the future in this Court. Anyone who is anti-Muslim is there heroes Rana Pratap, Prithiviraj Chauhan, Guru Govind Singh, Shivaji, they all fought Muslims. They are the national heroes. Well, there is obviously some distortion in our history. You have the Shivaji-Afzal Khan episode. Quite obviously Shivaji behaved like a bastard, he murdered a man who was embracing him, stories that he plunged a dagger into Shivaji are all made up, we have to move away from all this.

According to the petitioner, the aforesaid remarks made by Mr. Khuswant Singh accused No. 3 has committed an offence u/s 153 of the IPC and the remarks made by the speakers in the debate had featured in the issue of ''INDIA TODAY published on 15-5-1991 titled as "CROSS FIRE. Admittedly, the petitioner was only presiding over the debate and according to him he was only publishing the speech made by different speakers who expressed different opinions about the ''secularism''. It is averred in the petition that the remarks made by Khuswant Singh about Chhatrapathi Shivaji create a wave of opposition among the protagonist of Shivaji. In view of this Khuswant Singh had made a public apology.

I heard the senior counsel for the petitioner Shri P. R. Vakil and Mrs. Jyoti S. Pawar APP for the State. Shri Vakil submits that no offence has been committed by the petitioner as he was only presiding over the debate and was only passive listener of the speeches and INDIA TODAY carried only the true reports of the speeches made in the debate. According to the counsel this conduct of the petitioner however will not amount to any offence coming within the ambit of Section 153 IPC.

The second contention of the learned counsel for the petitioner is that the debate was conducted in New Delhi and INDIA TODAY published in New Delhi and the seat of the Editor is also at New Delhi. Therefore the learned Additional Chief Metropolitan Magistrate, at Dadar, Bombay has no jurisdiction to entertain the complaint as the offence is not alleged to have been committed within the territorial jurisdiction of the Magistrate.

I have examined the contentions of the learned counsel for the petitioner. In order to appreciate the contention of the petitioner we have to refer Section 153 of IPC which reads as follows :-

Whoever, malignantly, or wantonly, by doing anything which is. illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed shall if the offence of rioting be committed in consequence of such provocation, be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both; and if the offence of rioting be not committed, with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

it is argued by the counsel for the petitioner that an act in order to .fall within the ambit of Section 153, the act must be done malignantly to provoke any person, to cause riot. Apart from that the act must be illegal. In other words in order to attract the provisions of Section 153, three important ingredients have to be present.

The act must be illegal.

Such illegal act must be malignantly done, and

As a result of such illegal act, there must be a situation which may cause-riot.

Even on the allegation contained in the complaint it is seen that the act done by the petitioner was only to preside over the debate and to punish the matter. According to me there is substance in the contention of Mr. Vakil. Presiding over a debate on a subject of ''secularism'' cannot be said to be an illegal act. The true publication of the speeches made in the debate also cannot be said to be an illegal act. An Editor who does publish, in good faith, truly publishes the debate however cannot be said to be an illegal act. It may be that any remarks made by any speaker on sentiment of others will not come within the ambit of Section 153 IPC. liven such remarks might result in defamation. However, that is not the allegation contained in the complaint.

In view of this, I have no hesitation to hold that no offence u/s 153 is made out. If the petitioner is successful in asserting that no offence has been disclosed in the complaint u/s 153, it is unnecessary for me to go into the second question urged by the counsel with regard to the territorial jurisdiction of the Magistrate to entertain the complaint. According to me the presiding of a debate on a subject of "secularism", participated by eminent journalist and other personalities and true publication of those debates however will not amount to an offence u/s 153 IPC. As I indicated above, in order to come within the ambit of Section 153 IPC apart from the malignant or derogatory remarks published, that act must be-an illegal act. The presiding over a debate and publication of the speeches cannot be considered to be an illegal act. The Magistrate ought not to have issued summons against the petitioner when an offence is not disclosed even on the basis of the averment made in the complaint.

9-10. In the result the writ petition is allowed. Rule is made absolute in terms of prayer Clause (a).

In the circumstances no order as to costs.

Prayer Clause (a):-

That the complaint and the proceedings in case No. 64/S/1991, pending in the Court of the Additional Chief Metropolitan Magistrate, 5th Court, Dadar, Bombay, may be quashed by issuing an appropriate writ, order or direction under Article 227 of the Constitution of India or by an order u/s 482 of the Code of Criminal Procedure.