Suhasini Maniratnam vs D. Balachandran and Others

C.S. Karnan, J.—The petitioner, who has been implicated for the alleged offences under Sections 500, 504, 505(2), 294(b) and 499 of

I.P.C. has come forward with these petitions, seeking for the relief of quashing the proceedings in the following cases:

Crl. O.P. No. 33173 of 2005 against C.C. No. 1107 of 2005, on the file of the learned Judicial Magistrate No. I, Erode,

Crl. O.P. No. 33369 of 2005 against C.C. No. 648 of 2005, on the file of Judicial Magistrate Court, Tiruchengode,

Crl. O.P. No. 33797 of 2005 against C.C. No. 293 of 2005, on the file of Judicial Magistrate Court, Vandavasi,

Crl. O.P. No. 33370 of 2005 against C.C. No. 649 of 2005, on the file of Judicial Magistrate Court, Tiruchengode,

Crl. O.P. No. 33174 of 2005 against C.C. No. 644 of 2005, on the file of the District Munsiff-cum-Judicial Magistrate, Kattumannarkoil,

Cuddalore District,

Crl. O.P. No. 34055 of 2005 against C.C. No. 462 of 2005, on the file of the Judicial Magistrate-II, Tiruppur,

Crl. O.P. No. 34538 of 2005 against C.C. No. 303 of 2005, on the file of the Judicial Magistrate-II, Tiruvannamalai,

Crl. O.P. No. 4110 of 2006 against C.C. No. 28 of 2006, on the file of the Judicial Magistrate-II, Walajapet in C.C. No. 28 of 2006,

2.The private complaint filed against her by the respondents seeking to punish her for alleged offences under Sections 500, 504 and 505(2) of the

I.P.C. has been taken cognizance of by the learned Judges of the above mentioned Courts, hereinafter referred to as ""Trial Courts"" and summons

has been issued to her seeking for her personal appearance before the Trial Court. The ground on which the impugned summon is sought to be

quashed is that it is in gross violation of Section 204 Cr.P.C. as the copy of the complaint and the list of witnesses were not enclosed with the

summons for appearance.

3.The circumstances under which the above petition has come to be preferred may be briefly narrated as under:

The petitioner herein is preferring this petition seeking to quash a summon dated 07.12.2005 in C.C. No. 303 of 2005 issued by the Court of

Judicial Magistrate-II, Tiruvanamalai, on the basis of a private complaint filed by the respondent herein before the said court seeking to punish this

petitioner for alleged offences under Sections 500, 504 and 505(2) of the I.P.C. The above complaint has been taken cognizance of by the learned

Judge (hereinafter referred to as ""Trial Court"") and summons has been issued to this petitioner seeking for her personal appearance before the Trial

Court on 09.01.2006. The ground on which the impugned summon is sought to be quashed is that in gross violation of Sec.204 Cr. P.C, a copy of

the Complaint and the list of witnesses were not enclosed with the Summons for appearance.

Aggrieved by the above action of the Trial Court in taking cognizance of the private complaint and issuance of the summons as aforesaid, the

petitioner herein is constrained to approach this Hon''ble Court invoking its inherent jurisdiction u/s 482 Cr.P.C.

The circumstances under which the above petition has come to be preferred may be briefly narrated as under:

The petitioner herein was born in a traditional Tamil family in the Village of Paramakkudi in Tamil Nadu.

The petitioner completed her entire elementary education in Tamil medium and thereafter did her further studies in Film Technology hailing as she

does from a family of renowned cinema artists. After completing her education, the petitioner herein joined the film industry as a technician and

later as an actress and in the last 25 years of her association, she has been involved as a technician, producer, director and more importantly as a

leading actress in over 185 films in Tamil as well as in other languages such as Telugu, Kannada and Malayalam. The petitioner can proudly state

that she has the unique distinction of being part of the only father and daughter combination to win the coveted National Award for best acting, the

petitioner for the Tamil Film Sindhu Bhairavi and her father Shri.Charuhasan (renowned actor, lawyer and social activist) for the Kannada Film

''Taparanna Kathe''. The petitioner''s uncle is also a renowned Indian and Tamil cinema hero Padmashri Kamal Hassan.

The petitioner is constrained to state all the above facts which are otherwise irrelevant in a quash petition to demonstrate her and her family''s deep

rooted involvement and attachment in Tamil culture and Tamil tradition since that is something integral to this case.

One of the petitioner''s colleagues in the film industry by name Ms. Khushboo is alleged to have given an interview in September 2005 to a

nationally renowned magazine India Today (Tamil Edition). The said interview was to elicit her response to an information poll conducted on

certain matters of present day youth and sex and the dangers of AIDS. She is also attributed to have made statements in the said interview inter

alia on present day girls and virginity, allegedly suggesting that in present society, bridegrooms should be liberated from ideas of their brides being

virgins. Her actual statement was apparently to caution youth and guard against pregnancy, venereal disease and AIDS; but the same was quoted

out of context while being reported in other newspapers and other media.

The petitioner herein does not propose to embark upon on any defence or justification of any statement of Ms. Khusbhoo though she has no

contrary views to express. Several self styled ""guardians"" of Tamil Culture"" spear-headed by a few opportunist so called ""political parties"" started

not only voicing vehement dissent against Ms. Khushboo but also went to the indecent extent of burning her effigies, demonstrating in front of her

residence, parading donkeys (naming them Khushbhoo) and even threatened to hurl cow dung on her, thereby making her seek for police

protection for her very safety. Few political parties are alleged to have involved themselves in this demonstration. Some of them even went to the

extent of filing private complaints against her alleging various offences (similar to the present case) and several Magistrates have taken cognizance

of those complaints u/s 200 Cr.P.C. And issued summons to her to appear, including in one case when a non-bailable warrant was issued. Over

15 cases have been filed against her through the length and breadth of Tamil Nadu compelling her to move this Hon''ble Court to quash such

complaints. In various criminal original petitions filed by her both at Chennai as well as in the Bench at Madurai, this Hon''ble Court has been

pleased to admit all those quash petitions and further proceedings in every one of the criminal cases has been stayed while also dispensing with her

personal appearance.

During much of the period of controversy involving Ms. Khushbhoo''s instance, this petitioner was not in station though she had expressed her

sympathy and support to her friend and colleague. The petitioner recently attended the inaugural function of the International Film Festival held at

the South Indian Film Chamber of Commerce at Chennai on 09.11.2005. The petitioner herein was one of the speakers as was Ms. Khushbhoo.

This petitioner is alleged to have spoken in her address inter alia expressing her solidarity and support to Ms. Khushbhoo. The petitioner is further

alleged to have expressed her unhappiness that her friend''s statement made in the context of prevention of AIDS and AIDS awareness have been

misread and misinterpreted. The petitioner is also alleged to have expressed her apology to Ms. Khushbhoo for the insults meted out to her on

behalf of all Tamils. This speech and it''s alleged contents have been reported in several newspapers.

The petitioner respectfully states that it was an impromptu address and not a prepared speech but more a dialogue with her friend who was also

in the dais. There were less than 50 people present in the auditorium including leading film personalities and the attendance to the function was

purely by invitation. Other than the said press report there is nothing to show the actual contents of her address or dialogue. At any event the

petitioner bonafide believes that her above address was a personal expression of support to her friend and colleague as well as her free expression

of thought on a matter of public debate. No member of the audience present on that day has filed any complaint or even expressed any dissenting

opinion.

While large sections of the public have openly come forward and expressed their happiness and support over the reports of the above

expression of Ms. Khushbhoo, the same group of self styled ""guardians of Tamil culture"" who had earlier tormented Ms. Khushbhoo immediately

started targeting this petitioner as well. This handful of narrow minded bigoted persons started to indulge in abuse and insults on this petitioner and

as perpetrated on Ms. Khushbhoo, also started staging small demonstrations, burning of effigies etc., with further threats of continuous harassment.

The petitioner has now received summons from the Trial Court in the complaint filed by the respondent herein claiming to be aggrieved by the

petitioner''s address made on 09.11.2005. The petitioner understands now from articles in newspapers that several such similar criminal cases have

also been filed against her in various parts of the State by other self proclaimed guardians of ""Tamil Culture"". The petitioner herein has already

received summons from the following Courts:

i) District Munsiff-cum-Judicial Magistrate, Kattumannarkoil,

ii) Judicial Magistrate No. I, Erode,

iii) Judicial Magistrate, Thiruchengode, (2 cases),

iv) Judicial Magistrate Court-II, Tiruppur (impugned summon),

v) Judicial Magistrate II, Tiruvannamalai,

The petitioner further understands that cases have also been filed in Chennai and other parts of Tamil Nadu; but no summons have been received

as yet.

The petitioner may relevantly state here that contrary to the mandatory provisions contained in Section 204(3) of the Code of Criminal

Procedure, none of the summons received by her, including the impugned summons, enclosed either the list of witnesses or a certified copy of the

complaint. The petitioner having been aggrieved by the Criminal Court taking cognizance of such private complaints and issuing summons including

the present case is consequently constrained to approach this Hon''ble Court with the present petition seeking to quash all the summons

proceedings dated 16.11.2005 issued by the Court of Judicial Magistrate-I, Erode, in C.C. No. 1107 of 2005; dated 21.11.2005 issued by the

Court of District Munsiff-cum-Judicial Magistrate, Kattumannarkoil, Cuddalore, in C.C. No. 644 of 2005; C.C. No. 648 of 2005, on the file of

Judicial Magistrate Court, Tiruchengode; C.C. No. 649 of 2005, on the file of Judicial Magistrate Court, Tiruchengode; C.C. No. 293 of 2005,

on the file of Judicial Magistrate Court, Vandavasi; dated 29.11.2005, issued by the Court of Judicial Magistrate-II, Tiruppur, in C.C. No. 462 of

2005; dated 07.12.2005 issued by the Court of Judicial Magistrate-II, Tiruvannamalai in C.C. No. 303 of 2005 and dated 30.01.2006 issued by

the Court of Judicial Magistrate-II, Walajapet in C.C. No. 28 of 2006.

The learned Advocate General appearing for the petitioner has contended the issue on the following Grounds:

a) In cases of private complaints of an alleged crime u/s 200 of the Cr.P.C., after following the procedure contemplated by Section 201 and 202

of the Cr.P.C., the Court shall either dismiss the complaint after recording reasons under Sections 203 or in case of taking cognizance of the

matter, issue process u/s 204. In the instant case, the Trial Court having thought fit to take cognizance, the provisions of Section 204(3) ought to

have been followed.

b) The provision requiring the summons to be accompanied along with a copy of complaint as well as the list of witnesses is not a matter of

procedure but a substantive right of the accused to know what he or she is facing in a private complaint.

c) The complete violation of all these mandatory provisions by all the trial courts is unfortunate despite judicial precedents on the subject. In the

instant case the summons was served to the petitioner without enclosing a complaint copy.

d) The petitioner has a fundamental right to life and liberty and also the remedy available under law to challenge a complaint inter alia through

criminal quash proceedings u/s 482 Cr.P.C.

e) In the instant case, by the time the trial court has taken cognizance of this complaint, it was already well known throughout Tamil Nadu that all

the criminal proceedings arising out of complaints filed against Ms. Kushboo have already been stayed by this Hon''ble Court. Indeed, it was even

reported that some criminal courts have resorted to section 203 Cr.P.C. And dismissed the complaint as not making out a criminal case. The

impugned summons is not only for taking cognizance for the matter which clearly does not disclose an offence, but more importantly has violated

the petitioner''s right by not enclosing the relevant documents.

The petitioner is hence being compelled to respond to a summon without being aware of the nature of the complaint made against her.

Consequently, the principles of natural justice are violated.

f) The impugned summons dated 16.11.2005 issued by the Court of Judicial Magistrate-I, Erode, in C.C. No. 1107 of 2005; dated 21.11.2005

issued by the Court of District Munsiff-cum-Judicial Magistrate, Kattumannarkoil, Cuddalore, in C.C. No. 644 of 2005; C.C. No. 648 of 2005,

on the file of Judicial Magistrate Court, Tiruchengode; C.C. No. 649 of 2005, on the file of Judicial Magistrate Court, Tiruchengode; C.C. No.

293 of 2005, on the file of Judicial Magistrate Court, Vandavasi; dated 29.11.2005, issued by the Court of Judicial Magistrate-II, Tiruppur, in

C.C. No. 462 of 2005; dated 07.12.2005 issued by the Court of Judicial Magistrate-II, Tiruvannamalai in C.C. No. 303 of 2005 and dated

30.01.2006 issued by the Court of Judicial Magistrate-II, Walajapet in C.C. No. 28 of 2006 deserves to be quashed and this Hon''ble Court has

inherent powers as well as constitutional powers to direct the concerned Courts to furnish copies of the complaints along with any summons issued

for her appearance.

The learned Counsel had also submitted written submission, wherein he had cited the case laws, which reads as follows:

Legal contentions raised on behalf of the petitioner for quashing both the summons and the complaints:

(A) Lack of Territorial Jurisdiction:

As per the complaint, the alleged defamatory statements/inflammatory statements are stated to have been made in a meeting at Chennai addressing

a small audience. This is the cause of action. Newspapers carrying their own versions of the said speech will not constitute a criminal cause of

action, wherever the said publication is read by a party. This more so when the case of criminal defamation is not filed against the newspaper but

only against a third party whose alleged speech is merely reported.

If every person reading a newspaper is entitled to maintain an action for defamation in cases of this nature wherever they reside, no person about

whom anything is written in newspaper as attributing them with any statement can be safe from vexatious criminal prosecution.

Cause of action as disclosed by the complaint ex-facie has taken place at Chennai and consequently no criminal court other than the court of

competent territorial jurisdiction at Chennai can take cognizance of the complaint as per Section 177 of the Cr. P.C.

(B) No locus standi for the Complainant:

The allegation in the complaint is that Tamil women and Tamil culture have been defamed and hence action under Sections 499 and 500 IPC is to

be taken. The so-called defamation of Tamil women and Tamil culture is of an indefinite body of persons and not against any individual.

Consequently, no person can prosecute the complaint claiming to be a member of that indefinite body. Reference may be made to the judgment of

the Apex Court reported in G. Narasimhan, G. Kasturi and K. Gopalan Ors. Vs. T.V. Chokkappa, . The Apex Court used the power u/s 482

Cr.P.C. and quashed the proceedings for defamation instituted by one individual claiming defamation of a body of persons. The Apex Court held

that, not being a determinate body an individual complaint is not maintainable.

Since the alleged defamation is of an indeterminable body, the criminal courts ought not to have been entertained the private complaint u/s 200

Cr.P.C and ought to have relegated the matter for investigation by police before taking cognizance and issuing summons.

The alleged defamation being of a generic nature and the allegation is that of such an alleged statement having caused inducement of public disorder

(Section 504) with no allegation in the complaint of any such public disorder having taken place, it was another reason for the criminal court to

have desisted from taking cognizance and instead directing the police to investigate. If such police investigation revealed a prima facie commission

of the offence, thereafter the criminal court could have taken cognizance and issued summons. This would give the proper check and act as a filter

against vexatious private complaints against public personalities.

(C) Complaint based on hearsay:

The entire complaint is based on the report carried out in newspapers regarding an alleged speech said to have been made by the petitioner in a

private gathering inside a building and not a public meeting. Without making the Editor and the Publisher as a co-accused and without naming the

Correspondent as a witness, the entire complaint is only hearsay and hence the same deserves to be quashed. This is another compelling reason

why the criminal court ought not to have taken cognizance of the private complaint but instead directed police investigation into the matter. Only on

receipt of the police investigation report, can the criminal court ascertain whether such an address took place, and if so, determine the true contents

of the same and then come to a conclusion whether prima facie anything defamatory as against the complaint has been made out or not. In the

absence of these procedures, the petitioner''s fundamental right is infringed.

(D) Merits:

Finally, ex facie, the statement attributed to the petitioner is only a statement sympathizing with the condition of a colleague and a friend (Ms.

Khushbhoo) and the publication does not even reveal anything more either supporting or otherwise against whatever statements are attributed to

Ms. Khushbhoo. Consequently, the question of petitioner''s statement offending Tamil culture and Tamil sentiments is only a case of moral or

cultural policing and is consequently infringing the petitioner''s fundamental right of freedom of speech and expression guaranteed by Article 191(a).

The statement made by the petitioner is not inherently promiscuous or inciting the public but is only an expression of opinion. In a plural society,

tolerance of opinion is fundamental to the Rule of Law. Citizens such as the petitioner cannot live in fear of criminal recrimination from any part of

India for expressing opinions on any matter of public debate or even a private opinion on a topic of general issue for fear of wounding sentiments of

any indefinite or indeterminate group of persons.

(E) Power u/s 482.

The complaint not disclosing an act either under the trial court''s territorial jurisdiction or with any locus standi of the complainants or making out

any prima facie case under Sections 499, 500 and 504, no purpose would be served by relegating the petitioner to face a long and arduous trial.

Consequently this Hon''ble Court has inherent powers u/s 482 to quash the complaint by exercising its power of judicial review whether it is filed

u/s 482 or under Article 226 of the Constitution of India. Please refer Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, .

The present case is neither vindicative of any person''s right nor is it an offence involving moral turpitude. It is also not an offence against society. It

is purely a speculative publicity seeking private complaint where the chances of ultimate conviction are very bleak and therefore no useful purpose

is likely to be served by allowing the prosecution to continue. Therefore, the Court may take into consideration the special facts of the case and

quash the proceedings even though it may be at a preliminary stage. Please refer Madhav Rao Scindia''s case AIR 1998 SC 709.

The petitioner relies on the following judgments:

(1972) 2 SCC 680 : AIR 1972 SC 2609 : (2009) 2 SCC 516 : (1988) 1 SCC 692 : (1986) 3 SCC 67 : (2001) 2 SCC 17 : AIR 1998 SC 128

AIR 1998 SC 709,(copy already handed)

It may be relevant to state here that the batch of quash petitions filed on behalf of actress Ms. Khushbhoo came to be dismissed by this

Hon''ble Court inter alia with a direction that all the complaints against her be clubbed together and tried by the learned Chief Metropolitan

Magistrate, Chennai. A copy of the judgment has already been handed over to this Hon''ble Court 2008-2-L.W. (Crl.) 811. This was appealed

before the Hon''ble Supreme Court and further proceedings in the lower court have been stayed by the Apex Court. Since the present complaint is

connected with the incident of Ms. Kushboo, as the matter has been stayed by the Apex Court, it is also just and appropriate that this Hon''ble

Court maybe pleased to adjourn the hearing till the Apex Court could decide the other issue.

The learned Counsel further argued that the petitioner''s speech was an impromptu speech and not a prepared one and that this clearly indicated

that she had no intention to hurt the feelings of the Tamil People. She is also a women steeped in tamil culture and hails from a village. Her parents

had brought her up in an Orthodox manner, according to tamil customs and traditions and further argued that the petitioner has not committed any

offence and that her speech had been delivered in front of a select audience of about 50 persons.

The learned counsels for the respondents jointly and vehemently argued that the petitioner has caused deep hurt to the feelings of the Indian

People. Her speech had been directed against Indian women. Further, the learned counsels pointed out that no self-respecting person can tolerate

these kind of statements. Freedom of speech, as envisaged in the constitution, cannot be used as an excuse to hurt the feelings of others. Further,

freedom of speech does not imply that one could say whatever he or she wants in a derogatory manner affecting or hurting the sentiments of

people. Further, the learned counsels argued that all the respondents are social reformers and that they are all very particular in upholding Tamil

culture.

After hearing these petitions, this Court pointed out that connected matter is pending before the Hon''ble Supreme Court of India and that the

Court awaits the verdict of the Hon''ble Supreme Court. But, the learned Counsel for the petitioner as well as the respondents'' counsel had filed a

joint memo on 05.11.2009, stating that the appeal pending before the Hon''ble Supreme Court against the order of this Hon''ble Court reported in

2008-2 LW (21) 811 will not be a bar for passing orders in the above Criminal O. Ps. On the basis of the joint memo, this Court passes the

orders.

Considering the facts and circumstances of the case, this Court takes into account the following factors for coming to a decision on the issue.

The statement of the petitioner had been given on the spur at the moment, without any intention to hurt or wound the feelings of the people.

As per the contentions of the learned Senior Counsel, this Court accepts that the petitioner belongs to a family, which values Tamil culture.

In the related case, concerning actress Khushboo, the Hon''ble Supreme Court quashed all the 23 cases filed against her stating that the

complaints woefully lacked in evidence. This Court is also taking the same view in the instant case and quashes all the criminal cases filed against

the petitioner.

In the result, the above Criminal Original Petition Nos. 33173, 33174, 33369, 33370, 33797, 34055, 34538 of 2005 and 4110 of 2006 are

allowed and consequently the complaints and summons in C.C. No. 1107 of 2005, on the file of the Judicial Magistrate Court No. I, Erode; C.C.

No. 644 of 2005 on the file of the District Munsiff-cum-Judicial Magistrate Court, Kattumannarkoil, Cuddalore District; C.C. No. 648 of 2005,

on the file of the Judicial Magistrate Court, Tiruchengode; C.C. No. 649 of 2005, on the file of the Judicial Magistrate Court, Tiruchengode; C.C.

No. 293 of 2005, on the file of the Judicial Magistrate Court, Vandavasi; C.C. No. 462 of 2005, on the file of the Judicial Magistrate Court No.

II; C.C. No. 303 of 2005, on the file of the Judicial Magistrate Court No. II, Tiruvannamalai; C.C. No. 28 of 2006, on the file of the Judicial

Magistrate Court No. II, Walajapet are quashed. Connected criminal miscellaneous petitions are closed. There shall be no order as to costs.