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Judgment
The accused in Crime No. 22 of 1991 on the file of the respondent have filed this petition under S. 482, Criminal P.C. praying to call for the
records in the aforesaid case and quash the same.
A Paneerselvam, Special Personal Assistant to the Chief Minister of Tamil Nadu, has given the complaint to the Inspector General of Police
(Crimes), Madras-4. He had endorsed on it that a case may be registered and investigated and sent it to the respondent. The respondent has
registered the case in Crime No. 22 of 1991 under Ss. 153-A(1)(b), 469, 471 read with Ss. 467 and 292(A), Penal Code. The allegations in the
complaint are briefly as follows :
In the Tamil Weekly ""Nakkeeran"", dated 24-8-91 in the article under he heading
Vernacular matter omitted
with sub-heading ""Vernacular matter omitted.
With the photo of the Chief Minister of Tamil Nadu, a letter said to be written by Natarajan, addressed to the complainant is embodied. No such
letter was addressed to him or received by him. He is well acquainted with the signature of Natarajan. The signature in the said letter is not that of
Natarajan. The letter and signature of Natarajan are forged. It is intended to harm his reputation. The contents of the Article are scurrilous and
defamatory of the Government and the Chief Minister and intended to mislead the public and prejudicial to the maintenance of harmony between
different political parties and regional groups and likely to disturb the public tranquillity. Hence he had requested action, according to law.
The respondent has filed counter. The allegations in it are briefly as follows :
The first petitioner is the Publisher and Executive Editor of ""Nakkeeran"". Petitioner No. 2 is the Editor and petitioner No. 3 is the Chief Reporter
of the said magazine. The offending Article was alleged to be written by petitioner No. 3. It contained an alleged letter written by Natarajan to
Paneerselvam. This letter is a forgery. The signature in it is not that of Natarajan. The forged letter is intended to harm the reputation of the
complainant and Natarajan. Prima facie case under Ss. 469, 471, 467, 153-A(a)(b) and 292(A) of Penal Code are made out. The complaints
preferred against the petitioner by the City Public Prosecutor for defamation under S. 500, I.P.C. are in no way connected with this case. They are
altogether different cases. The question of double jeopardy does not arise her. Hence the dismissal of the petition is prayed for.
Mr. P. H. Pandian, the learned counsel appearing for the petitioner, would contend that
(1) on the very same article, the City Public Prosecutor had filed one complaint on behalf of the Chief Minister in C.C. 57/91 on the file of
Principal Sessions Judge, City Civil Court, Madras for offence under S. 499, I.P.C. punishable under S. 500, I.P.C. and that he had filed another
complaint on behalf of the Private Secretary in respect of the very same article for offence under S. 499, I.P.C. punishable under S. 500, I.P.C. in
C.C. 58/91 and in view of these parallel proceedings, the First Information Report should be quashed.
(2) The allegations in the complaint and the contents of the article do not make out the offences for which F.I.R. was registered.
(3) The filing of the complaint and the investigation thereon are all mala fide and vindictive and that would be evident from the fact that two
complaints were filed with regard to the article in the Court of Principal Sessions Judge, as aforesaid and that the petitioners were arrested and
kept in detention for two days and it will vitiate the entire proceedings. This prosecution is against freedom of expression and freedom of press and
investigative journalism.
Per contra, Mr. B. Sriramulu, the learned Public Prosecutor, would contend that
(1) The offences for which this F.I.R. was registered are totally distinct and different from the offences for which the two complaints were given in
the Court of Principal Sessions Judge, Madras and hence that will not have any bearing on this First Information Report.
(2) The ingredients of the offences, alleged, are all mode out in the allegations made in the First Information Report and in the contents of the
objected Article.
(3) The question of mala fide is irrelevant and that if offences are made out as per the allegations made in the F.I.R. investigation is to be done and
it cannot be quashed on the ground of mala fide. Only with regard to the forged letter, action is being taken and freedom of expression or
investigative journalism are not in any way scuttled.
Before considering rival contentions, I shall narrate the relevant facts and scope of S. 482, Cr.P.C. First Information Report was registered on
16-8-91 for offences under Ss. 153-A(1)(b), 469, 471 read with Ss. 467 and 292(A) of Penal Code. The matter is under investigation. At this
stage, this petition is filed. The learned Public Prosecutor would contend that at this stage, when there is registration of a case on First Information
Report and Investigation is proceeding, it can be quashed only if the allegations in the First Information Report do not constitute the offences,
alleged. In this regard, he relied upon the ruling reported in State of Haryana and others Vs. Ch. Bhajan Lal and others, in para 107, the Apex
Court has given the categories of cases by way of illustration wherein powers under S. 482 of the Code can be exercised. They are.
(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.
(2) Where the allegation in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence,
justifying an investigation by police officers under S. 156(1) of the Code except under an order of a Magistrate within the purview of S. 155(2) of
the Code.
(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.
(4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is
permitted by a police officer without an order of a Magistrate as contemplated under S. 155(2) of the Code.
(5) Where the allegations made in the F.I.R. or 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.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the aggrieved party.
(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.
I shall now proceed to consider whether the case on hand will fall in any one of the above categories and as well consider the contentions put forth
by the learned counsel on either sides.
Regarding the first contention, this F.I.R. is registered or offences under Ss. 153-A(1)(b), 469, 471 read with Ss. 467 and 292(A), Penal
Code. The two complaints by City Public Prosecutor filed against Durai and Rajagopal viz., accused 1 and 2 herein are for alleged offence under
S. 499, I.P.C. punishable under S. 500, I.P.C. The offences covered by those complaints and the offences relating to this F.I.R. are distinct and
different offences. While so, the filing of the complaints for offence under S. 499, I.P.C. would not vitiate this F.I.R. The learned Public Prosecutor
relied upon S. 26 of the General Clauses Act, 1897 which read as follows :
Provision as to offences punishable under two or more enactments. - Where an act or omission constitutes an offence under two or more
enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments. but shall not be liable to be
punished twice for the same offence.
This section provides for prosecution under two different enactments. In our case, the prosecutions were under different sections of the same Penal
Code. But yet the principle is applicable. In The State of Bombay Vs. S.L. Apte and Another, , in para 15, the Apex Court has held as follows :
If, therefore, the offences were distinct there is no question of the rule as to double jeopardy as embodied in Art. 20(2) of the Constitution being
applicable.
In para 16, the Apex Court has observed as follows :
Though S. 26 in its opening words refers to ""the act or omission constituting an offence under two or more enactments"", the emphasis is not on the
facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made
clear by the concluding portion of the section which refers to ""shall not be liable to be punished twice for the same offence."" If the offences are not
the same but are distinct, the ban imposed by this provision also cannot be invoked. It therefore follows that in the present case as the respondents
are not being sought to be punished for ""the same offence"" twice but for two distinct offences constituted or made up of different ingredients the
bar of the provision is inapplicable.
This ruling is applicable to the facts of the case on hand. Further more, this F.I.R. was given on 16-8-91. The two complaints filed by the City
Public Prosecutor are dated 19-8-91, as seen from the copy of the complaints filed. Those complaints are later in point of time then the F.I.R. with
which we are concerned. So they cannot have the effect of vitiating the F.I.R. which is earlier in point of time. Thus looking to the case from the
any angle, the contention put forth by the learned counsel appearing for the petitioners that there are parallel proceedings by virtue of C.C. 57 and
58 of 1991 on the file of Principal Sessions Judge, City Civil Court, Madras and hence this F.I.R. should be quashed, cannot be accepted.
Coming to the second contention, the case was registered for offences under Ss. 153-A(1)(b), 469, 471 read with Ss. 467 and 292(A), Penal
Code. S. 153-A(1)(b) reads as follows :
153-A(1) Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts
prejudicial to maintenance of harmony. Whoever -
(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or
communities, and which disturbs or is likely to disturb the public tranquility, or.
In the F.I.R. it is alleged as follows :
the contents of the article are scurrilous and defamatory of the Government and the Hon''ble Chief Minister and intended to mislead the public and
prejudicial to the maintenances of harmony between different political parties and regional groups and likely to disturb the public tranquility.''
These allegations fit in with the language of S. 153-A(1)(b), I.P.C. So allegations are there in the F.I.R. for making out an offence under S. 153-
A(1)(b), Penal Code. Mr. P. H. Pandian contended that the Article which is the subject-matter of this F.I.R. is with regard to the some alleged
order of the Chief Minister for telephone tapping of certain telephone numbers and it also contains a letter purported to have been written by
Natarajan to Paneerselvam and by any stretch of imagination this would not amount to an act promoting enmity between different groups on
grounds of religion, race, place of birth, residence, language etc. The learned Public Prosecutor would state that the word ""community"" referred to
in the above sub-section may even mean body of men having common interest and such interest may be social, economic or political and this
impugned Article is likely to create disharmony between different political groups and the offence will fall within the section alleged. In this regard,
he relied upon the following passage which is found at page 1282-3 of the Penal Law of India by Dr. H. S. Gour, Volume II. It reads as follows :
Community. - The dictionary meaning of the word ''community'' is very wide. It may even mean the body of men having common interest. Such
interest may be social, economic or political.
One thing is that allegations in the F.I.R. do fit in the language of the section. Secondly possibility of such interpretation has also been pointed out.
The case is only at the investigation stage. In view of the above, at this stage, even with regard to S. 153-A(1)(b), F.I.R. cannot be quashed. The
ruling of the Apex Court, which I have referred to supra would state that only if allegations in the F.I.R. do not make out the offence, that can be
quashed. Such is not the case here.
S. 469, I.P.C. is forgery for the purpose of harming reputation. Forgery is defined in S. 463, I.P.C. which reads as follows :
Forgery - Whoever makes any false documents or part of a document, with intent to cause damage or injury, to the public or to any person,
or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to
commit fraud or that fraud may be committed, commits forgery.
S. 471, Indian Penal Code provides for punishment for using as genuine a forged document. A forged document is defined in S. 470, I.P.C. which
reads as follows :
In the Tamil Weekly dated 24-8-91 ''Nakkeeran'' (Vernacular matter omitted) in the Article under the heading ""Vernacular matter omitted"" with
sub-heading ""Vernacular matter omitted"" with the photo of the Hon''ble chief Minister of Tamil Nadu, a letter said to be written by Thiru Natarajan
addressed to Paneer (i.e. me) is embodied. No such letter was addressed to me or received by me. I am familiar and well acquainted with the
signature of Mr. Natarajan. The signature in the said letter is not that of Mr. Natarajan. The letter and signature of Mr. Natarajan is forged and it is
intended to harm my reputation.
Forged Document. - A false document made wholly or in part by forgery is designated"" a forged document. Now I shall advert to the
relevant allegation in the F.I.R. which are as follows :
Thus there are allegations which make out the ingredients of the offences under Ss. 469 and 471 read with S. 467, Indian Penal Code.
The next offence alleged is S. 292(A), I.P.C. S. 292(A) provides for punishment for printing etc., of grossly indecent of scurrilous matter
intended for blackmail. Explanation (1) is relevant. It reads as follows.
Explanation 1. - For the purpose of this section, the word ''scurrilous'' shall be deemed to include any matter which is likely to be injurious to
morality or is calculated to injure any person :
Provided it is not scurrilous to express in good faith in anything whatever respecting the conduct of -
(i) a public servant in the discharge of his public functions or respecting his character so far as his character appears in that conduct and no further;
or
(ii) any person touching any public question, and, respect his character, so far as his character appears in that conduct and no further.
The relevant averment in the F.I.R. reads as follows :
The contents of the article are scurrilous and defamatory of the Government and the Hon''ble Chief Minister ....
Mr. P. H. Pandian contended that news magazine is published with all good faith and the article does not contain any scurrilous matter or matter
intended for blackmail. There is an allegation in the complaint alleging that this matter is scurrilous. When there are allegations in the complaint, the
investigating officer is bound to investigate it. Now it is in the region of investigation. Proceedings against an accused in the initial stages can be
quashed only if on the face of the complaint, no offence is constituted. Such is not the case here. Thus there are allegations in the F.I.R. which
constitute offences alleged. Hence I am unable to accept the contention of Mr. P. H. Pandian that the allegations in the complaint do not make out
the offences for which the F.I.R. is registered.
Regarding mala fides, the learned public Prosecutor would contend that no mala fides could be attributed to the complaint or to the prosecuting
agency. According to Mr. P. H. Pandian, lodging of the two complaints in the Court of Principal Sessions Judge, City Civil Court and the arrest of
the petitioners and keeping them under detention for two days do point out the mala fides on the part of the complainant and the Government.
These are all matters which occurred after the filing of the F.I.R. According to the learned Public Prosecutor, they do not constitute mala fides. He
pointed out that in State of Bihar and Another Vs. P.P. Sharma, IAS and Another, in para 23 at page 1448 (of Cri LJ) the Apex Court has
observed as follows :
The allegations of mala fide, therefore, against the informant based on the facts after the lodging of the F.I.R. are of no consequence and cannot
be the basis for quashing the proceedings.
These observations are relevant to our case. For the present, on the materials available, no mala fides can be made out. Regarding freedom of
speech and freedom of press and investigative journalism, the learned Public Prosecutor has rightly stated any article based on a forged document
is always exposed to prosecution and it will not in any way infringe the freedom of expression or freedom of press or investigative journalism.
Those basic fundamental rights are very sacred. If they are violated, definitely any prosecution shall be quashed. At this stage, I do not find any
material to come to a conclusion that the F.I.R. registered on this article and investigation thereon infringes any of the fundamental rights. In view of
the above, the investigation on the fact of the above F.I.R. cannot be quashed at the threshold. The facts of the case do not fall within any one of
the categories or similar categories indicated in the judgments of the Apex Court, which I have referred to supra.
In view of my discussion above, the petition shall stand dismissed.
Petition dismissed.