2019 Supreme(Mad) 1464

IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. ANAND VENKATESH, J.
Mathew Samuel - Appellant
Versus
State - Respondent
Crl. M.P. No.1298 of 2019 in Crl. O.R. No. 2003 of 2019
Decided On : 29-01-2019

Headnote:

Indian Penal Code,1860 - sections 501,505, 505(i)(b)(c), 153, 153(A),153-A,120B and 509 - Criminal Procedure Code,1973 - sections 397 and 482 - Representation of People Act 1951 -Sections 123,123(3),123-A – Calling for records to exercise powers of revision - quash of Criminal - Video was uploaded with intention to cause riot and disharmony in Society - FIR has been registered by respondent Police based on Complaint given by respondent who claims to be Secretary of IT Wing AIADMK who claims to have watched a video circulating on social media which is targeted against present Honble Chief Minister and also former Honble Chief Minister and other Ministers - Complaint further claims that video was uploaded with intention to cause riot and disharmony in Society - Respondent Police based on Complaint given by respondent have proceeded to register an FIR for an offence under Section 153A 505(1)(b), 505(1)(c) and 505(2) IPC - This petitioner has been shown as in FIR and apart from this petitioner there are six other named accused persons and others who are involved in alleged crime - This accused person claims himself to be an investigative journalist - He has taken a documentary and published same which contains video of some of interactions that have been made with certain accused persons who are connected with murder and robbery which took place at Kodanadu residence of late Honble Chief Minister - In this video it is alleged that some reckless allegations have been made as against present Honble Chief Minister and also former Honble Chief Minister and certain other Ministers - Whether any words either spoken or written or by signs or by visible representation or otherwise made against an individual person whatever position he is holding and which does not result in promoting feelings of enmity or hatred between different groups on grounds of religion race language etc will come within purview of Section 153A of IPC - Whether based on grounds of religion caste language or community or any other ground - Whether based on grounds of religion caste language or community or any other ground it is proposed to amend Section 153-A of Indian Penal Code so as to make it a specific offence for anyone to promote or attempt to promote feelings of enmity or hatred between different religious racial or language groups or castes or communities - Whether news item was published and circulated to excite commotion and create communal disharmony - Whether such news was false and fabricated - Court felt that at stage of taking cognizance on basis of police report it was not possible to come to a definite finding - Whether accused had published news item without deliberate and malicious intention - Whether ingredients constituting offences under sections 153A and 505 of Indian Penal Code were prima facie present - Held, Insofar as offence under Section 153-A IPC is concerned it provides for punishment for promoting enmity between different groups on grounds of religion race place of birth residence language caste or community or any other ground whatsoever or brings about disharmony or feeling of hatred or ill-will between different religious racial linguistic or regional groups or castes or communities - In Court opinion only where written or spoken words have tendency or intention of creating public disorder or disturbance of law and order or affect public tranquillity that law needs to step in to prevent such an activity - Facts and circumstances of this case unmistakably show that there was no disturbance or semblance of disturbance of law and order or of public order or peace and tranquillity in area from where appellants were apprehended while raising slogans on account of activities of appellants - Intention to cause disorder or incite people to violence is sine qua non of offence under Section 153-A IPC and prosecution has to prove existence of mens rea in order to succeed - In this case prosecution has not been able to establish any mens rea on part of appellants as envisaged by provisions of Section 153-A IPC by their raising casually three slogans a couple of times - Offence under Section 153-A IPC is therefore not made out - Three possible views can now be put forth as to requirement of mens rea under Section 153-A - First intention is still gist of offence and has to be proved by prosecution like any other fact though it is open to Court to infer it as is usually done in other cases - Secondly intention is still gist of offence but there is a rebuttable presumption about it - By virtue of S. 81 of Code read with S. 106 of Evidence Act however accused can rebut presumption - Thirdly intention is not required and mere tendency to promote ill will etc - Is enough - Court must be very careful in construing that section because it imposes a penalty - If there is a reasonable interpretation which will avoid penalty in any particular case Court must adopt that construction - Unless penalties are imposed in clear terms they are not enforceable - Also where various interpretations of a section are admissible it is a strong reason against adopting a particular interpretation if it shall appear that result would be unreasonable or oppressive - Ordered Accordingly