Venkatesh vs State

G.M. Akbar Ali, J.—By consent of both sides, the matter has been taken up for final hearing. The petition is filed seeking a direction to call

for the records in S.T.C. No. 1571 of 2010 on the file of the learned Judicial Magistrate No. II, Villupuram and quash the charge sheet.

The Petitioner is charged for an alleged offence u/s 3(1) of Tamil Nadu Open Places (Prevention of Disfigurement) Act 1959. It is alleged that

on 17.7.2007 around 3.00 p.m the Petitioner was affixing the posters on a wall in public view containing slogans with provocative words against

the Government.

Aggrieved at taking cognizance of the charge sheet, the Petitioner is before this Court to quash the same on the ground that the prosecution is

malicious and the Petitioner is protected under Article 19(1)(a) of the Constitution of India and he has not propagated any offending slogans.

Mr.R. Sankarasubbu, learned Counsel for the Petitioner would draw this Court''s attention to Section 3 of the Tamil Nadu Open Places

Prevention of Disfigurement Act, 1959. He submitted that the offence will be attracted only if any ''objectionable advertisement'' is made in any

place open to public view. The learned Counsel submitted that freedom of speech and expression is the fundamental right guaranteed under Article

19(1)(a) of the Constitution of India and relied on a decision reported in Ram Nandan Vs. State, . He also relied on a decision reported in 2002

(2) ACT343 V. Narayana Reddy v. State of Andhra Pradesh

The Respondent filed counter, in which, it is stated that on 17.7.2010 the Petitioner affixed poster without any permission or consent

condemning the Tamil Nadu Government and the poster affixed by the Petitioner did not contain any details as to where it was printed.

It is also stated that based on the examination of the witnesses and also on the opinion of the Additional Public Prosecutor, charge sheet was

filed for the offence u/s 4(1) of the Tamil Nadu Open Places (Prevention of Difigurement) Act 1952 and the same was taken on file in STC No.

1571 of 2010.

It is further stated that if any person affixes to or inscribes or exhibits on any place open to public view any advertisement without the written

consent of the owner or occupier or person in management of the propery, is liable to be punished u/s 4 (1) of Tamil Nadu Open Places

(Prevention of Disfigurement) Act, 1959. It is also stated that after completion of investigation, charge sheet has been filed and the same has been

taken on file. At this stage, there is no necessity to quash the proceedings.

In support of this contentions, Mr. Hassan Mohammed Jinnah, the learned Additional Public Prosecutor submits that the Petitioner has exhibited

objectionable advertisements and therefore, liable to be prosecuted and the Court need not interfere in this matter.

Heard and perused the materials available on record.

Article 19(1)(a) of the Constitution reads as follows:

Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right:

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) omitted

(g) to practise any profession, or to carry on any occupation, trade or business

However, this guarantee is subject to the reasonable restrictions which is indicated in Clause (ii) of the Article.

Section 2(b) of the Tamil Nadu Open Places (Prevention of Disfugurement) Act, 1959 defines objectionable advertisements which reads as

follows:

(b) ""Objectionable advertisement"" means any advertisement which is likely to;

(i) incite any person to commit murder, sabotage or any offence involving violence; or

(ii) seduce any member of any of the armed forces of the Union or of the police forces from his allegiance or his duty or prejudice the recruiting of

persons to serve in any such force or prejudice the discipline of any such force or

(iii) incite any section of the citizens of India; or which

(iv) is deliberately intended to outrage the religious feelings of any class of the citizens of India by insulting or blaspheming or profaning the religion

or the religiious beliefs of that class; or

(v) is grossly indecent or is scurrilous or obscene or intended for blackmail;

(vi) obstructs pedestrian traffic

However, the explanation would go to show that an advertisement shall not be deemed to be objectionable merely because words or signs

visible representations are used,

(1) expressing disapprobation or criticism of any law or of any policy or administrative action of the Government with a view to obtain its alteration

or redress by lawful means;

(2) criticising any social or religious practices without malicious intention and with; honest view to promote social or religious reform or social

justice.

Section 3 of the Act reads as follows:

Penalty for disfigurement by objectionable advertisement:

Whoever affixes to, or inscribes or exhibits on, any place open to public view any objectionable advertisement shall be punished with imprisonment

of either description for a term which may extend to one year or with fine which may extend to five thousand rupees or with both.

Therefore, in order to constitute an offence u/s 3 of the Act, it should be alleged that the accused affixed or inscribed or exhibited any

objectionable advertisement on any place open to public view.

2002 (2) ACT 343 V. Narayana Reddy v. State of Andhra Pradesh the High Court of Andhra Pradesh had an occasion to deal with a case

where a practising advocate and an organising Secretary of an Organisation for protection of democratic rights said to have pasted pamphlets

containing objectionable advertisement regarding nuclear test and weapons. The High Court of Andhra Pradesh found that the intention of the

organiser is to enlighten the public about the Nuclear disarmament and therefore, the pamphlet cannot be said to be an objectionable

advertisement.

In order to bring an offence u/s 3 of the Act, the objectionable advertisement must satisfy any one of the conditions found in 2(b) of the Act.

The explanations to Sections 2(1) will not come under the objectionable advertisement.

The objectionable advertisement in the present case is said to be raising a slogan against the ruling party, objecting the institution of false cases

and arresting the members of Makkal Jananayaka Ilaignar Kazhagam (People Democratic Youth Forum).

In my considered view, the intention of the Petitioner is to condemn the arrest of the fellow members of the forum and objecting foisting false

cases.

Freedom of speech and expression is the fundamental right of all citizens. The reasonable restrictions is in relation to public order, decency or

morality or in relation to contempt of Court, defamation or incitement to an offence. Therefore, whatever stated in the alleged poster is not coming

under the definition of 1 to 6 of 2(b) of the Act but will come under explanation (1) of 2(b) of the Act.

Therefore, the pendency of such proceedings is only abuse of process of law which is liable to be quashed accordingly, it is quashed.

In the result, the criminal original petition is allowed and the proceedings in S.T.C. No. 1571 of 2010 on the file of the learned Judicial

Magistrate No. II, Villupuram is hereby quashed. Consequently, connected MP is closed.