The court determined that immoral acts do not necessarily constitute illegal acts under criminal law, emphasizing the principle of legality.

ORDER :

1. The Constitution of India, while guaranteeing fundamental rights, also expects its citizens to abide by their fundamental duties. One such fundamental duty, enumerated in Article 51A, is to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem. Although not specifically mentioned in Article 51A, it is also the duty of every Indian citizen to respect the freedom fighters who were instrumental in liberating our country from foreign rule. Our transition from ‘native Indian subjects’ to ‘proud Indian citizens’ wouldn’t have been possible, but for the untiring and selfless crusade led by Mahatma Gandhi and other national leaders. To borrow the words of Will Durant the American Historian on Mahatma Gandhi, “not since Buddha has India so revered any man. Not since St. Francis of Assissi has any life known to history been so marked by gentleness, disinterestedness, simplicity of soul and forgiveness of enemies.” The preface became essential as this case is about a youngster, then a law student, who is facing prosecution on the allegation of having denigrated the image of Mahatma Gandhi.

2. The essential facts are as under:

The petitioner is the accused in Crime No.944 of 2023 registered at the Edathala Police Station for offences punishable under Sections 153 and 426 of IPC. The crime is registered on the allegation that on 21.12.2023, at about 04:30 pm, while preparing for the Christmas celebrations at the Bharata Mata School of Legal Studies, of which the petitioner was a student, he placed a pair of cooling glasses over the nose, and a Christmas wreath around the neck, of the statue of Mahatma Gandhi installed inside the campus. The petitioner is also alleged to have commented that Gandhi is long dead. The petitioner's act was video-graphed and posted in the WhatsApp group of students. This led to discontent and complaints being submitted to the Principal of the college. Hence, apart from registration of the crime, the petitioner was also suspended from the college for five days and made to pay a fine of Rs.5000/- to the Kerala State Legal Services Authority.

3. Adv.S.Rajeev, the learned counsel appearing for the petitioner, fairly admitted that the petitioner's conduct is unjustifiable. The counsel then contended that the conduct, though deplorable, cannot result in criminal prosecution since, for attracting the offence under Section 153 of IPC, the objectionable conduct should not only be malignant or wanton, but should also be illegal. For an act to be illegal, it should be in contravention of a law or regulation. No Central law or any law enacted by our State prescribes punishment for defiling the statue of Mahatma Gandhi. Although a private bill with such an objective was moved, it did not get the assent of the Parliament.

4. Learned counsel then contended that in order to attract the offence of mischief, the act must have been done with intent to cause, or with the knowledge that it is likely to cause, wrongful loss or damage to the public or to any person, and should have resulted in destruction or damage to the property or diminution in its value. According to the counsel, the petitioner's act has neither resulted in wrongful loss or damage to the public or to any person, nor has it caused destruction or damage to any property, or diminution in the value or utility of the property.

5. Alternatively, it is contended that Section 426 being a non-cognisable offence, once prosecution for the offence under Section 153 is held unsustainable, registration of the crime itself will be rendered invalid in view of the interdiction contained in Section 155 of Cr.P.C. In support of this argument, reliance is placed on the decision of the Apex Court in B.N. John v. State