2010 Supreme(SC) 373

2010 (3) Supreme 528
SUPREME COURT OF INDIA
CJI, Deepak Verma and Dr. B.S. Chauhan, JJ.
S. Khushboo — Appellant
versus
Kanniammal & Anr. — Respondents
Criminal Appeal No. 913 of 2010
[Arising out of SLP (Crl.) No. 4010 of 2008]
Decided on : 28-04-2010

VERY IMPORTANT POINTS
1. Initiation of a criminal trial is a process which carries an implicit degree of coercion and it should not be triggered by false and frivolous complaints,amounting to harassment and humiliation to the accused.
2. Obscenity should be gauged with respect to contemporary community standards that reflect the sensibilities as well as the tolerance levels of an average reasonable person.
3. A High Court while exercising its inherent jurisdiction should not interfere with a genuine complaint but it should certainly not hesitate to intervene in appropriate case.
4. In respect of offence of defamation, Section 199 Cr.PC mandates that Magistrate can take cognizance of the offence only upon receiving a complaint by a person who is aggrieved.

Headnote:Indian Penal Code, 1860 - Sections 499, 500 and 505 r/w Sections 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986 -23 Criminal Complaints filed against appellant , a well known actress , mostly in the State of Tamil Nadu, for offences contemplated under Sections 499, 500 and 505 of ‘IPC’ and Sections 4 and 6 of Act of 1986 - The trigger for the same were some remarks made by appellant in an interview to a leading news magazine and later on the same issue was reported in a distorted manner in another periodical- Publication of these statements in ‘India Today’ and ‘Dhina Thanthi’ drew criticism from some quarters and several persons and organisations filed criminal complaints against appellant- Faced with the predicament of contesting the criminal proceedings instituted against her in several locations, appellant had approached High Court praying for the quashing of these proceedings - High Court rejected said plea but in order to prevent the inconvenience of litigating the same subject-matter in multiple locations directed that all the cases instituted against appellant be consolidated and tried together by the Chief Metropolitan Magistrate, Egmore (Chennai)- Special Leave Petitions thereagainst-Plea of appellant that complainants not being ‘persons aggrieved’ within the meaning of Section 199(1)(b) Cr.PC ,they were not competent to institute private complaints for the alleged offences-In respect of offence of defamation, Section 199 Cr.PC mandates that Magistrate can take cognizance of the offence only upon receiving a complaint by a person who is aggrieved-In given facts of the instant case, complainants could not be properly described as ‘persons aggrieved’ within the meaning of Section 199(1)(b) Cr.PC.-There was no specific legal injury caused to any of the complainants since the appellant’s remarks were not directed at any individual or a readily identifiable group of people- Most of the complainants were associated with PMK, a political party which was active in the State of Tamil Nadu- This fact added weight to the suggestion that impugned complaints had been filed with intention of gaining undue political mileage- Various complaints filed against appellant did not support or even draw a prima facie case for any of the statutory offences as alleged-Hence impugned judgment and order of High Court set aside- Appeals allowed. (Paras 25 to 28, 34)

       Judicial Review- When the criminal law machinery is set in motion, the superior courts should not mechanically use either their inherent powers or writ jurisdiction to intervene with the process of investigation and trial- However, such forms of judicial review can be exercised to prevent a miscarriage of justice or to correct some grave errors that might have been committed by the subordinate courts. (Para 12)

       AIR 1998 SC 128,referred

       Criminal Complaint-When can be quashed-It is a settled legal proposition that in a case where there is sufficient evidence against accused, which may establish the charge against him/her, proceedings cannot be quashed- A criminal complaint or a charge sheet can only be quashed by superior courts in exceptional circumstances, such as when the allegations in a complaint do not support a prima facie case for an offence- Criminal proceedings can be quashed but such a power is to be exercised sparingly and only when such an exercise is justified by the tests that have been specifically laid down in the statutory provisions themselves- Superior courts “may examine the questions of fact” when the use of criminal law machinery could be in the nature of an abuse of authority or when it could result in injustice-A High Court while exercising its inherent jurisdiction should not interfere with a genuine complaint but it should certainly not hesitate to intervene in appropriate case. (Para 13)

       AIR 2000 SC 1869, AIR 2005 SC 9, ., (2009) 14SCC 466, relied

       Indian Penal Code, 1860 - Sections 499, 500 and 505 r/w Sections 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986 -23 Criminal Complaints filed against appellant , a well known actress , mostly in the State of Tamil Nadu, for offences contemplated under Sections 499, 500 and 505 of ‘IPC’ and Sections 4 and 6 of Act of 1986 - The trigger for the same were some remarks made by appellant in an interview to a leading news magazine and later on the same issue was reported in a distorted manner in another periodical- Perusal of the complaints showed that most of allegations had pertained to offences such as defamation (Sections 499, 501 and 502 IPC), obscenity (Section 292 IPC), indecent representation of women and incitement among others-Held that there was absolutely no basis for proceeding against appellant in respect of some of the alleged offences- This was because Act, 1986 was enacted to punish publishers and advertisers who knowingly disseminate materials that portray women in an indecent manner- However, this statute could not be used in the instant case where the appellant had merely referred to incidence of pre-marital sex in her statement which was published by a news magazine and subsequently reported in another periodical- It would defy logic to invoke offences mentioned in this statute to proceed against appellant, who could not be described as an ‘advertiser’ or ‘publisher’ by any means- Again, Section 509 IPC criminalises a ‘word, gesture or act intended to insult modesty of a woman’ and in order to establish this offence it is necessary to show that modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act- Clearly this offence could not be made out when complainants’grievance was with publication of what appellant had stated in a written form- Likewise, some of the complaints mentioned offences such as those contemplated by Section 153A IPC (‘Promoting enmity between different groups etc.,’) which had no application in the instant case since the appellant was not speaking on behalf of one group and the content of her statement was not directed against any particular group either. (Para 15)

       Indian Penal Code,1860-Section 292-Obscenity-What amounts to-In judging the question of obscenity, judge in the first place should try to place himself in the position of author and from the viewpoint of author, judge should try to understand what is it that the author seeks to convey and whether what the author conveys has any literary and artistic value- Judge should thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have on the minds of the reader-Obscenity should be gauged with respect to contemporary community standards that reflect the sensibilities as well as the tolerance levels of an average reasonable person- Instantly appellant had merely referred to the increasing incidence of pre-marital sex and called for its social acceptance- At no point of time appellant described sexual act or said anything that could arouse sexual desires in the mind of a reasonable and prudent reader-Apart from that, statement had been made in the context of a survey which touched on numerous aspects relating to sexual habits of people in big cities- Even though this survey was not part of a literary or artistic work, it was published in a news magazine thereby serving the purpose of communicating certain ideas and opinions on said subject- In the long run, such communication prompts a dialogue within society wherein people can choose to either defend or question the existing social modes- Hence Held difficult to appreciate the claim that statements published as part of the survey were in the nature of obscene communications. (Paras 17, 18)

       AIR 1986 SC 967,relied

       Indian Penal Code,1860-Sections 40, 41 and 42 –Live in relationship –Whether amounts to an “Offence” -”Offence” means `an act or instance of offending’; `commit an illegal act’ and illegal means, `contrary to or forbidden by law’- “Offence” has to be read and understood in the context as it has been prescribed under the provisions of Sections 40, 41 and 42 IPC which cover the offences punishable under I.P.C. or under special or local law or as defined under Section 2(n) Cr.P.C. or Section 3(38) of the General Clauses Act, 1897 - While it is true that the mainstream view is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of `adultery’ as defined under Section 497 IPC-A live-in relationship between two consenting adults of heterogenic sex does not amount to any offence (with the obvious exception of `adultery’), even though it may be perceived as immoral. (Paras 20, 21)

       ., AIR 2006 SC 2522,referred

       Indian Penal Code,1860-Section 499-Defamation- Criminal Complaints filed against appellant , a well known actress , mostly in the State of Tamil Nadu, for offences contemplated under Sections 499, 500 and 505 of ‘IPC’ and Sections 4 and 6 of Act of 1986 - The trigger for the same were some remarks made by appellant in an interview to a leading news magazine and later on the same issue was reported in a distorted manner in another periodical- Issue in consideration whether appellant’s remarks could reasonably amount to offence of defamation as defined under Section 499 IPC- Held there was no prima facie case of defamation in the instant case.- Definition of defamation makes it amply clear that the accused must either intend to harm the reputation of a particular person or reasonably know that his/her conduct could cause such harm- With regard to the complaints in question, there was neither any intent on part of appellant to cause harm to the reputation of the complainants nor any actual harm was done to their reputation-Both the elements i.e. mens rea and actus reus were missing- Appellant’s statement published in ‘India Today’ was a rather general endorsement of premarital sex and her remarks were not directed at any individual or even at a ‘company or an association or collection of persons’- Difficult to fathom how the appellant’s views could be construed as an attack on the reputation of anyone in particular- Even as regarding remarks published in ‘Dhina Thanthi’ there was no direct attack on the reputation of anyone in particular- Instead, the purported remarks were in nature of rhetorical questions wherein it was asked if people in Tamil Nadu were not aware of the incidence of sex- Even considering these remarks in their entirety,nowhere had it been suggested that all women in Tamil Nadu have engaged in premarital sex.- That imputation could only be found in the complaints that were filed by the various respondents- It was a clear case of the complainants reading in too much into the appellant’s remarks. (Paras 23, 24)

       Facts of the Case :

       Criminal Complaints were filed against appellant , a well known actress , mostly in the State of Tamil Nadu,herein in the instant case for offences contemplated under Sections 499, 500 and 505 of ‘IPC’ and Sections 4 and 6 of Act of 1986 . The trigger for the same were some remarks made by appellant in an interview to a leading news magazine and later on the same issue was reported in a distorted manner in another periodical. In September 2005, ‘India Today’ a fortnightly news magazine had conducted a survey on the subject of the sexual habits of people residing in the bigger cities of India- One of issues discussed as part of this survey was increasing incidence of pre-marital sex.Appellant expressed her personal opinion wherein she had noted increasing incidence of pre-marital sex, especially in context of live-in relationships and called for societal acceptance of the same. Subsequently, ‘Dhina Thanthi’, a Tamil daily carried a news item on 24.9.2005 which first quoted appellant’s statement published in ‘India Today’ and then opined that it had created a sensation all over the State of Tamil Nadu. Publication of these statements in ‘India Today’ and ‘Dhina Thanthi’ drew criticism from some quarters and several persons and organisations filed criminal complaints against appellant. Faced with the predicament of contesting the criminal proceedings instituted against her in several locations, appellant had approached High Court praying for the quashing of these proceedings .High Court rejected said plea but in order to prevent the inconvenience of litigating the same subject-matter in multiple locations directed that all the cases instituted against appellant be consolidated and tried together by the Chief Metropolitan Magistrate, Egmore (Chennai).

       2.Present Special Leave Petitions have been filed against said order of High Court.

       Findings of the Court :

       Plea of appellant that complainants not Being ‘persons aggrieved’ within the meaning of Section 199(1)(b) Cr.PC ,they were not competent to institute private complaints for the alleged offences. Held in respect of offence of defamation, Section 199 Cr.PC mandates that Magistrate can take cognizance of the offence only upon receiving a complaint by a person who is aggrieved.In given facts of the instant case, complainants could not be properly described as ‘persons aggrieved’ within the meaning of Section 199(1)(b) Cr.PC..There was no specific legal injury caused to any of the complainants since the appellant’s remarks were not directed at any individual or a readily identifiable group of people. Most of the complainants were associated with PMK, a political party which was active in the State of Tamil Nadu. This fact added weight to the suggestion that impugned complaints had been filed with intention of gaining undue political mileage. Perusal of the complaints showed that most of allegations had pertained to offences such as defamation (Sections 499, 501 and 502 IPC), obscenity (Section 292 IPC), indecent representation of women and incitement among others.Held that there was absolutely no basis for proceeding against appellant in respect of some of the alleged offences. This was because Act, 1986 was enacted to punish publishers and advertisers who knowingly disseminate materials that portray women in an indecent manner. However, this statute could not be used in the instant case where the appellant had merely referred to incidence of pre-marital sex in her statement which was published by a news magazine and subsequently reported in another periodical. It would defy logic to invoke offences mentioned in this statute to proceed against appellant, who could not be described as an ‘advertiser’ or ‘publisher’ by any means. Again, Section 509 IPC criminalises a ‘word, gesture or act intended to insult modesty of a woman’ and in order to establish this offence it is necessary to show that modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act. Clearly this offence could not be made out when complainants’grievance was with publication of what appellant had stated in a written form. Likewise, some of the complaints mentioned offences such as those contemplated by Section 153A IPC (‘Promoting enmity between different groups etc.,’) which had no application in the instant case since the appellant was not speaking on behalf of one group and the content of her statement was not directed against any particular group either. Various complaints filed against appellant did not support or even draw a prima facie case for any of the statutory offences as alleged.Hence impugned judgment and order of High Court was set aside. Appeals were allowed.