Dr. Subramanian Swamy vs C. Pushparaj

The petitioner in this petition is seeking for quashing of the proceedings in P.R.C.No.51 of 1995 on the file of the Judicial Magistrate,

Tambaram.

The facts in brief are; - that the complaint in P.R.C.No.51 of 1995 was filed by the respondent herein based on a speech delivered by the

petitioner at Bharathi Thidal, Tambaram on 18.3.1995, alleging that the petitioner herein committed the offence under Sections 307, 504 and

506(II) of the Indian Penal Code. The objectionable part of the speech on which the respondent has based the complaint is as follows:

(Transcript of the speech made in Tamil and the translation reads thus):-

... Tamil Nadu has become a State without self respect. In no other State such circumstance is in existence. Some here felt sorry that there is no

security for political leaders in Tamil Nadu. At number of places in Tamil Nadu violence is at high peak. Number of attempts were made on my life

by throwing acid bulbs. Violence cannot be the ""answer for violence. Even if nothing can be done in Tamil Nadu when Miss. Jayalalitha comes to

Delhi, there she can be held and nicely beaten up. Tamil Nadu House where Miss. Jayalalitha stays is only 25 yeads away from my house. I am

living in Safdarjung Road, New Delhi. If I het a rocket from my house top it will go and fall in the bed room of Jayalalitha''s house. But that is not

democracy. I think a change should be brought about only by democratic means...

The petitioner herein contended that the entire complaint and the other materials taken in its totality do not disclose any offence and the

complaint is frivolous and fictitious in nature. It is also averred that there is no specific averment in the complaint or in the sworn statement as to

what was the criminal intimidation and to whom it was intended and whether alarm was caused etc., to attract Section 506(II) of the Indian Penal

Code. There is also no allegation that the petitioner intentionally insulted with an intent to provoke breach of peace and the actual words used or

supposed to have been used by the petitioner which the complainant understood to be words of insult is not mentioned. In such a situation, it is not

possible for the Court to decide whether there is any intentional insult. According to him in the absence of an attempt to murder, namely, mens rea

and actus reus and in the absence of the ingredients of Section 504 and 506(II) of the Indian Penal Code, even if allegations made in the complaint

are taken at their face value and accepted in their entirety do not prima facie constitute an offence and the proceeding is maliciously instituted with

an ulterior motive for wreaking vengeance with a view to spite him due to his effectiveness in impressing upon the public mind the corrupt nature of

the then Government.

The learned Magistrate keeping in view the averments in the complaint and the statements in the depositions, declined to take cognizance of the

complaint and dismissed holding that there is no prima facie case to proceed with the complaint.

The complainant preferred a Criminal Revision Petition No.23 of 1995 on the file of the learned Sessions Judge, Chengalpattu M.G.R. District

against the order of the learned Judicial Magistrate, Tambaram, made in C.C.No. 460 of 1995 on 19.6.1995. In the revision, the learned Sessions

Judge set aside the order of the learned Judicial Magistrate, Tambaram and directed to take the complaint on his file, issue process and dispose of

the matter according to law.

The point for consideration in this petition is whether the uncontroverted allegations in the complaint and sworn statements establish prima facie a

triable case for offences under Sections 307, 504 and 506(II) of the Indian Penal Code?

The power u/s 482, Cr.P.C. should be used very sparingly. The test is, taking the allegations in the complaint and the statements given in Court

without adding or substracting anything, if no offence is made out, then only, the Court is justified in exercising its powers for quashing the

proceedings u/s 482, Cr.P.C. But the test to be done without evaluating the evidence or looking into the documents meticulously and there must be

prima facie case touching the ingredients of the offences alleged. The Apex Court in several decisions has cautioned that the High Court should not

embark upon an enquiry as to the reliability or genuineness of the allegations made in the F.I.R. etc. on the basis of the evidence collected during

the investigation because it amounts to by passing the normal process of criminal trial.

But in Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, , the Apex Court has taken the view that it is

for the Court to take into consideration any special feature which appears in a particular case to consider whether it is expedient and in the interest

of justice to permit a prosecution to continue. This is so, on the basis that the Court cannot be utilised for any oblique purpose and where in the

opinion of the court chances of an ultimate conviction are bleak and no useful purpose is likely to be served by allowing a criminal prosecution to

continue, and in that situation, the Court can resort to quash the proceedings even though it may be at a preliminary stage.

In Natarajan v. Venkatachalam1996 (1) L.W. (Crl.) 284in para 18, it has been held thus:-

In State of Haryana and others Vs. Ch. Bhajan Lal and others, , the Supreme Court has held that the power under Sec. 482, Cr.P.C. should

be exercised sparingly and that too, in the rarest of rare cases, where if the complaint and the materials placed for cognizance 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; or where the complaint

is so absurd and inherently improbable or where it is instituted maliciously with an ulterior motive to take vengeance and with a view to spite him

due to private and personal grudge; or where the averments are so absurd in such fact situation, the continuance of the criminal prosecution is

nothing but an abuse of the process of the Court, resulting in miscarriage of justice"".

In State of Haryana and others Vs. Ch. Bhajan Lal and others, , the Apex Court has detailed the categories and circumstances when the High

Court may exercise the power u/s 482, Cr.P.C. thus:-

(i) where if the allegations made in the F.I.R. 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; or (ii) where the allegations made in the complaint are so absurd and inherently

improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the

accused; or (iii) where the proceeding is manifestly attended with male fide or where the proceeding is maliciously instituted with an ulterior motive

for wreaking vengeance with a view to spite the accused due to private and personal grudge"".

Same view was expressed even in earlier cases, viz., Raj Kapoor and Others Vs. State and Others, ; Smt. Nagawwa Vs. Veeranna Shivalingappa

Konjalgi and Others, and Chandrapal Singh and Others Vs. Maharaj Singh and Another, .

It is appropriate at this stage to refer to the ingredients of the offences alleged and the averments in the complaint and the statements made in

the depositions. Generally speaking, whether there has been an attempt to commit a crime depends on the state of mind and the conduct of the

accused in the attempted consummation of his design. The concept of ""attempt"" in criminal jurisprudence, the elements of mens rea and actus reus

are essential. The deed must be one performed in actual furtherance of the crime intended and in addition, the deed must be such that it raises a

presumption that the accused was aiming at the crime in question. The act always amounts to more than mere preparation and move directly

towards the commission of the crime. No degree of intent will of itself suffice to constitute an indictable attempt to commit a crime, no matter how

evil or malignant it may be. Mere, intention alone or the harbouring of an evil design is not by itself punishable. There must be a manifestation of that

intention by an overt act. An intention and manifestation of that intention by an overt act amounts to an attempt.

To attract Section 307, IPC, there must be prima facie material that the accused committed an act and that the act was done with such

intention or knowledge. An object is entertained in the human mind and it being merely a mental attitude, no direct evidence can be available, and

like intention as generally to be gathered from the act the person commits and the results therefrom, his words or utterances are not enough to

indicate the real mental attitude and it is the act committed and the result therefrom that are the main features. The liability should be limited to the

act, which actually did and should not be extended so as to embrace the consequences of another act which he (might have done) but did not do.

In Abhayanand Mishra Vs. The State of Bihar, , the Supreme Court has held when a person commits an offence thus:

A person commits the offence of ''attempt to commit a particular offence'' when (i) he intends to commit that particular ""offence and (ii) he, having

made preparations and with the intention to commit the offence, does an act towards its commission, such an act need hot be the penultimate act

towards the commission of that offence but must be an act during the course of committing that offence"".

So far as Section 504, IPC is concerned what is punishable under this Section is something very much graver than that, Section is something

very much graver than that, in the sense insult intended to provoke a breach of the peace or the commission of the offence or whether it was likely

that such provocation would cause breach of the peace. To constitute the essential elements of the offence u/s 504, IPC, there should have been

an act or conduct amounting to intentional insult where that act is by the use of abusive words, it is necessary to know whether the using of those

words amounted to intentional insult. In the absence of those words, it is not possible whether the ingredient of intentional insult is present. An insult

even if gross one is not an offence in itself u/s 504, IPC. Part II of Sec. 506, IPC is attracted if the criminal intimidation includes threat to cause

death or grievous hurt. Mere outburst is not sufficient to hold that it would fall within the mischief of Sec. 506, IPC. In the instant case, the

averment in the complaint and the statements in the depositions, if taken together, there are no allegations in the whole complaint that the petitioner

ever made any attempt or did any act in pursuance of his alleged expression. So also, the actual words used or supposed to have been used by the

petitioner is not stated either in the complaint or in the depositions. Regarding criminal intimidation to whom it was intended, whether alarm was

caused, it so, what are the actual words employed are not stated either in the complaint or in the depositions. In the absence of these averments

touching the ingredients, mere mentioning of sections and putting a person to face the trial is nothing but the abuse of the process of the Court. The

learned Magistrate has rightly dismissed the complaint holding that there is no prima facie case made out as per the allegations in the complaint and

the statements made in the depositions. This is a case where even if the entire material placed before the Court are taken on its face value without

evaluating, adding or substracting anything, there will be no prima facie material to constitute the offences alleged against the petitioner. In such an

event, to continue the proceedings is nothing but the abuse of the process of the Court and hence the complaint in PRC.No.51 of 1995 on the file

of the Judicial Magistrate, Tambaram is quashed and the petition is allowed.