DEFAMATION KHUSHBOO CASE

 IN THE SUPREME COURT OF INDIA


                CRIMINAL APPELLATE JURISDICTION


              CRIMINAL APPEAL NO. 913 of 2010
       [Arising out of SLP (Crl.) No. 4010 of 2008]








S. Khushboo                                            ... Appellant
                                 Versus
Kanniammal & Anr.                                    ... Respondents








                                  WITH
Criminal   Appeal   914/2010   @SLP   (Crl.)   No.   6127   of   2008
Criminal   Appeal   915/2010   @SLP   (Crl.)   No.   6257   of   2008
Criminal   Appeal   916/2010   @SLP   (Crl.)   No.   6258   of   2008
Criminal   Appeal   917/2010   @SLP   (Crl.)   No.   6259   of   2008
Criminal   Appeal   918/2010   @SLP   (Crl.)   No.   7049   of   2008
Criminal   Appeal   919/2010   @SLP   (Crl.)   No.   6264   of   2008
Criminal   Appeal   920/2010   @SLP   (Crl.)   No.   6277   of   2008
Criminal   Appeal   921/2010   @SLP   (Crl.)   No.   7052   of   2008
Criminal   Appeal   922/2010   @SLP   (Crl.)   No.   7053   of   2008
Criminal   Appeal   923/2010   @SLP   (Crl.)   No.   7050   of   2008
Criminal   Appeal   924/2010   @SLP   (Crl.)   No.   7051   of   2008
Criminal   Appeal   925/2010   @SLP   (Crl.)   No.   4761   of   2008
Criminal   Appeal   926/2010   @SLP   (Crl.)   No.   4772   of   2008
Criminal   Appeal   927/2010   @SLP   (Crl.)   No.   4767   of   2008
Criminal   Appeal   928/2010   @SLP   (Crl.)   No.   4763   of   2008
Criminal   Appeal   929/2010   @SLP   (Crl.)   No.   4765   of   2008
Criminal   Appeal   930/2010   @SLP   (Crl.)   No.   4762   of   2008
Criminal   Appeal   931/2010   @SLP   (Crl.)   No.   4764   of   2008
Criminal   Appeal   932/2010   @SLP   (Crl.)   No.   4770   of   2008
Criminal   Appeal   933/2010   @SLP   (Crl.)   No.   4769   of   2008
                          J    U    D    G   M     E    N    T
Dr. B.S. CHAUHAN, J




1. Leave granted in all the cases.




2. The appellant is a well known actress who has approached


this Court to seek quashing of criminal proceedings pending


against her. As many as 23 Criminal Complaints were filed


against her, mostly in the State of Tamil Nadu, for the


offences contemplated under Sections 499, 500 and 505 of


the    Indian     Penal     Code,        1860           [hereinafter       `IPC']       and


Sections 4 and 6 of the Indecent Representation of Women


(Prohibition)       Act,       1986       [hereinafter            `Act    1986'].       The


trigger    for     the     same       were       some      remarks       made    by     the


appellant in an interview to a leading news magazine and


later on the same issue was reported in a distorted manner


in     another    periodical.            Faced      with      the    predicament        of


contesting the criminal proceedings instituted against her


in several locations, the appellant had approached the High


Court     of     Madras,       praying        for       the   quashing      of        these


proceedings       through      the       exercise        of   its     inherent        power


under Section 482 of the Code of Criminal Procedure, 1973


[hereinafter `Cr.PC.']. The High Court rejected her plea


vide impugned judgment and order dated 30.4.2008. At the


same    time,     in     order      to     prevent         the      inconvenience        of






                                                                                        2
litigating       the   same   subject-matter          in    multiple   locations


directed     that      all    the       cases      instituted     against       the


appellant be consolidated and tried together by the Chief


Metropolitan Magistrate, Egmore (Chennai). Aggrieved by the


aforesaid judgment,           the appellant approached this Court by


way of a batch of Special Leave Petitions.






3. Before addressing the legal aspects of the case before


us, it would be useful to examine the relevant facts. 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


the   issues      discussed        as    part   of    this    survey     was    the


increasing incidence of pre-marital sex. As a part of this


exercise, the magazine had gathered and published the views


expressed by several individuals from different segments of


society, including those of the appellant. The appellant


expressed her personal opinion wherein she had noted the


increasing incidence of pre-marital sex, especially in the


context     of    live-in      relationships          and     called     for    the


societal    acceptance        of    the   same.      However,    appellant      had


also qualified her remarks by observing that girls should


take adequate precautions to prevent unwanted pregnancies


and   the   transmission       of       venereal     diseases.    This    can    be






                                                                                3
readily inferred from the statement which was published, a


rough translation of which is reproduced below:






     "According to me, sex is not only concerned with
     the body; but also concerned with the conscious.
     I could not understand matters such as changing
     boyfriends every week. When a girl is committed
     to   her boyfriend, she can tell her parents and
     go out with him. When their daughter is having a
     serious relationship, the parents should allow
     the same. Our society should come out of the
     thinking that at the time of the marriage, the
     girls should be with virginity.


     None of the educated men, will expect that the
     girl whom they are marrying should be with
     virginity. But when having sexual relationship
     the   girls   should   protect   themselves from
     conceiving and getting venereal diseases."






These   remarks   were   published   alongside    a   survey,   the


relevant extracts of which are stated below:


     "Will you marry a      person   who   had   relationship
     with    others?
     18% - Yes, 71% - No


     Is it necessary to be a virgin till the time of
marriage?
     65% - Yes, 26% - No


     The remaining percentage of people said: Do not
     know/Cannot say


     82% women had given an opinion that a girl should
     be a virgin at the time of marriage."


4. Subsequently, `Dhina Thanthi', a Tamil daily carried a


news item on 24.9.2005 which first quoted the appellant's


statement published in `India Today' and then opined that




                                                                4
it had created a sensation all over the State of Tamil


Nadu. This news item also reported a conversation between


the    appellant     and   a   correspondent    from    `Dhina   Thanthi',


wherein the appellant had purportedly defended her views in


the following manner (rough translation reproduced below):


       "The persons who are protesting against my
       interview, are talking about which culture? Is
       there anyone who does not know about sex in Tamil
       Nadu? Is there anyone who does not know about
       AIDS? How many men and women do not have sex
       before marriage?


       Why are people saying that after the marriage the
       husband and wife should be honest and faithful to
       each other? One should have confidence in the
       other, only to avoid the mistakes from being
       committed. If the husband, without the knowledge
       of the wife, or the wife, without the knowledge
       of the husband, have sex with other persons, if a
       disease is caused through that, the same will
       affect both the persons. It will also affect the
       children. Only because of this, they are saying
       like that."


However, soon after the publication of the above mentioned


news   item,   the    appellant    had   sent   a     legal   notice    dated


2.10.2005 to the Editor of `Dhina Thanthi', categorically


denying that she had made the statement quoted above. In


fact, the appellant had asked the publisher to withdraw the


news-item      carried     on    24.9.2005      and     to    publish    her


objections prominently within three days of receipt of the


notice, failing which the appellant would be constrained to


take appropriate legal action against the newspaper.








                                                                          5
5. As outlined above, the publication of these statements


in `India Today' and `Dhina Thanthi' drew criticism from


some quarters and several persons and organisations filed


criminal   complaints      against     the    appellant.     For     instance,


the complainant in the appeal arising out of SLP (Crl) No.


4010 of 2008 has stated that she is a married woman who is


the Treasurer of a District-level unit of the Pattali Makal


Katchi [hereinafter `PMK'], a political party, and is also


involved in social service. She had quoted some parts of


the   statements    published        in     `India    Today'     and    `Dhina


Thanthi'   to    allege    that    the       appellant's    interview       had


brought great      shame   on    her   since     it   had   suggested      that


women of her profile had engaged in premarital sex. The


complainant     further    alleged     that    the    appellant's       remarks


had caused mental harassment to a large section of women,


and in particular women from Tamil Nadu were being looked


down upon with disrespect and contempt.






6. In the appeal arising out of SLP (Crl.) 4764 of 2008,


the   complainant    is    a    male      advocate    who   is   a     District


Secretary of the PMK for Salem District. In his complaint,


there is no direct reference to the news-item published in


`Dhina Thanthi' on 24.9.2005. Instead the complainant has


stated that he found second-hand accounts of the same to be






                                                                            6
quite shocking since the appellant had questioned the need


for women to maintain their virginity or chastity. It was


alleged      that    these     remarks      were    an     abuse    against      the


dignity      of    the   Tamil    women     and     that    they    had    grossly


affected and ruined the culture and morality of the people


of     the   State.       It   was    further       submitted       that      these


statements could persuade people to involve themselves in


unnatural crimes and that the appellant's acts amounted to


commission of offences punishable under Sections 499, 500,


504, 505(1)(b)           and 509 IPC read with Section 3 and 4 of


Act    1986.      Similarly,     in   the   appeal        arising   out     of   SLP


(Crl.) 6127 of 2008, the complainant is a lady advocate who


has been practicing in the Trichy District Courts for more


than    10     years.    She   has    quoted       some    portions       from   the


statements published in `India Today' and `Dhina Thanthi'


to submit that the appellant's acts were punishable under


Sections 292, 500, 504, 505(1)(b) and (c), 505(2) and 509


IPC read with Section 6 of            Act 1986.






7. Likewise, in the appeal arising out of SLP (Crl.) 6259


of 2008, the complainant has stated that she is a married


woman belonging to a reputed family and that she is serving


as the President of the District Magalir Association of the


PMK (in Thiruvarur) and rendering social service. In her






                                                                                 7
complaint, some parts of the appellant's statements have


been quoted to allege that she had suffered great mental


agony and shame since it was suggested that all women in


Tamil Nadu had lost their virginity before marriage. In


this    respect,       the    complainant    has        alleged       that     the


appellant had committed offences punishable under Sections


499, 500, 504, 505(1)(b) and 509                 IPC read with Section 6


of Act 1986. It is noteworthy that in most of the other


cases     filed   in    various      districts     of    Tamil        Nadu,    the


complainants      are    functionaries      of    the    PMK     and     similar


allegations have been levelled against the appellant. Oddly


enough,    one    of    the   complaints    had    even        been    filed    in


Indore, Madhya Pradesh.






8. As mentioned earlier, the appellant approached the High


Court   of   Madras      to   seek   quashing     of     all    the     criminal


proceedings instituted against her in this connection. In


its judgment dated 30.4.2008, the High Court                          refused to


quash the proceedings by              exercising its inherent powers


under Section 482 Cr.PC, on the premise that the relevant


considerations in this case were questions of fact which


were best left to be determined by a trial judge. The High


Court     noted that two basic questions were involved in the


case. Firstly, whether the appellant could claim any of the






                                                                               8
recognised       defences        against      the     allegations         of    having


committed defamation, as contemplated by Section 499                                 IPC.


Secondly,     whether        the       complainants       could       at       all    be


described     as    `aggrieved         persons'       within    the       meaning     of


Section 199 Cr.PC since that was linked to the question of


whether the complaints had been made in a bona fide manner.


The High Court thought it fit to leave both these questions


for   consideration         by    a    trial    judge,    and     in      a    partial


reprieve    to     the    appellant      it    was    directed       that      all   the


criminal    proceedings          pending      against    her    be    consolidated


and tried by the Chief Metropolitan Magistrate at Egmore,


Chennai. However, the High Court also proceeded to record


its own views regarding the contents of the appellant's


statements       and      even        made     some     strong        observations


condemning       the     incidence      of    premarital       sex    and      live-in


relationships.






9. In the proceedings before us, Ms. Pinki Anand, learned


counsel appearing for the appellant, has submitted that the


complainants        (respondents         in     these    appeals)          were      not


`persons aggrieved' within the meaning of Section 199(1)(b)


Cr.PC   and      hence     they       were    not    competent       to     institute


private complaints for the alleged offences. It was stated


that the appellant had made a fair and reasonable comment






                                                                                      9
as a prudent person, and therefore, the opinion expressed


by the appellant is fully protected under Article 19(1)(a)


of the Constitution of India which guarantees freedom of


speech and expression to all citizens. Furthermore, it was


contended         that    even    if    the       allegations         in   the       various


complaints are taken on their face value and accepted in


their       entirety,      the    same       do     not    disclose        any       offence


whatsoever and the opinion of the appellant does not, by


any means, fall within the ambit of Sections 499, 500 and


505 IPC       or    Sections      3    and    4    of     Act   1986.      It       was   also


canvassed that the criminal proceedings had been instituted


in    a    mala    fide    manner      by     the    workers      of       a    particular


political         party,    with       the    intention          of    vilifying          the


appellant and gaining undue political mileage.






10. In response, Sh. Kanagaraj, Sr. Adv., Sh. S. Gowthaman,


Adv. and Sh. B. Balaji, Adv. appearing for the respondents,


submitted that since the High Court has refused to quash


the       complaints,      this    Court      should       not    interfere           either


since       the    complaints         require       determination              of    factual


controversies that are best left to be decided by a court


of first instance. They have asserted that the complainants


in these cases are mostly women belonging to Tamil Nadu,


who were personally aggrieved by the appellant's remarks.






                                                                                           10
It was argued that the endorsement of pre-marital sex by a


prominent person such as the appellant would have a morally


corruptive        effect       on    the     minds         of    young       people.      Her


statement would definitely obscure some basic moral values


and expose young people to bizarre ideas about premarital


sex,    thereby        leading       to    deviant         behaviour         which       would


adversely      affect        public        notions         of     morality.         It    was


contended that the constitutional protection for speech and


expression        is   not     absolute         and    that       it    is    subject      to


reasonable restrictions based on considerations of `public


order', `defamation',               `decency         and    morality'        among       other


grounds.






11.    We   have       considered         the    rival          submissions        made     by


learned counsel for the parties and perused the record.






12. In order to decide this case, it will not be proper for


us to either condemn or endorse the views expressed by the


appellant.        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






                                                                                           11
errors that might have been committed by the subordinate


courts. [See decision of this Court in: M/s Pepsi Foods


Ltd. & Anr. Vs. Special Judicial Magistrate & Ors., AIR


1998 SC 128]. In the past, this Court has even laid down


some guidelines for the exercise of inherent power by the


High    Courts    to     quash       criminal   proceedings      in   such


exceptional cases. We can refer to the decision in State of


Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., AIR 1992 SC 604,


to take note of two such guidelines which are relevance for


the present case :-


       "(1). Where the allegations made in the First
       Information Report or the complaint, even if they
       are taken at their face value and accepted in
       their entirety do not prima facie constitute any
       offence or make out a case against the accused.


       ... (7). Where a criminal proceeding is manifestly
       attended    with  mala   fide  and/or  where   the
       proceeding is maliciously instituted with an
       ulterior motive for wreaking vengeance on the
       accused and with a view to spite him due to
       private and personal grudge."






13. It is of course a settled legal proposition that in a


case    where    there    is     sufficient     evidence    against      the


accused, which may establish the charge against him/her,


the proceedings cannot be quashed. In M/s Medchl Chemicals


& Pharma Ltd. Vs. M/s Biological E. Ltd. & Ors., AIR 2000


SC 1869, this Court observed that a criminal complaint or a


charge sheet     can     only   be    quashed   by   superior   courts    in




                                                                         12
exceptional circumstances, such as when the allegations in


a    complaint    do    not   support        a    prima   facie    case    for   an


offence. Similarly, in M/s Zandu Pharmaceutical Works Ltd.


& Ors. Vs. Mohd. Sharaful Haque & Ors., AIR 2005 SC 9, this


Court has held that 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. It was further observed that superior courts


"may examine the questions of fact" when the use of the


criminal law machinery could be in the nature of an abuse


of    authority    or    when   it     could       result   in    injustice.      In


Shakson Belthissor Vs. State of Kerala & Anr., (2009) 14


SCC 466, this Court relied on earlier precedents to clarify


that     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 cases. In fact it was observed:


       "One of the paramount duties of the superior
       courts is to see that a person who is apparently
       innocent is not subjected to prosecution and
       humiliation on the basis of a false and wholly
       untenable complaint."






14. There can be no quarrel about this Court's competence


to     quash      criminal      proceedings            pending     before        the






                                                                                 13
subordinate courts. However, this power must be exercised


sparingly and with circumspection. In light of the position


summarized above, we can examine the present case with two


considerations in mind, namely whether the allegations made


against the appellant support a prima facie case for the


offences    mentioned     in   the     respective      complaints,       and


whether the complaints were made in a bona fide manner.






15. Perusal    of   the   complaints     reveals    that     most   of   the


allegations have pertained to offences such as defamation


(Sections 499, 501 and 502 IPC), obscenity (Section 292


IPC), indecent representation of women and incitement among


others. At the outset, we are of the view that there is


absolutely no basis for proceeding against the appellant in


respect of some of the alleged offences. For example, the


Act, 1986 was enacted to punish publishers and advertisers


who knowingly disseminate materials that portray women in


an indecent manner. However, this statute cannot be used in


the present case where the appellant has merely referred to


the 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     the


offences mentioned in this statute to proceed against the


appellant, who cannot be described as an `advertiser' or






                                                                         14
`publisher'      by    any    means.      Similarly,     Section   509   IPC


criminalises a `word, gesture or act intended to insult the


modesty of a woman' and in order to establish this offence


it is necessary to show that the 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    cannot      be   made    out   when    the   complainants'


grievance is with the publication of what the appellant had


stated in a written form. Likewise, some of the complaints


have    mentioned      offences     such    as   those    contemplated    by


Section    153A       IPC    (`Promoting     enmity     between    different


groups etc.,') which have no application to the present


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.






16. Coming to the substance of the complaints, we fail to


see how the appellant's remarks amount to `obscenity' in


the context of Section 292 IPC. Clause (1) to Section 292


states that the publication of a book, pamphlet, paper,


writing, drawing, painting, representation, figure, etc.,


will be deemed obscene, if -


  7    It is lascivious (i.e. expressing or causing sexual
       desire) or








                                                                         15
 7    Appeals    to     the       prurient   interest     (i.e.     excessive
       interest in sexual matters), or
  7    If its effect, or the effect of any one of the items,
       tends to deprave and corrupt persons, who are likely
       to read, see, or hear the matter contained in such
       materials.




In the past, authors as well as publishers of artistic and


literary works have been put to trial and punished under


this section. In the present case, the appellant takes full


responsibility        for    her    statement    which    was    published    in


`India Today', a leading news magazine. It would be apt to


refer   back     to   the    decision    of     this    Court   in   Ranjit   D.


Udeshi Vs. State of Maharashtra, AIR 1965 SC 881, wherein


it was held that if a mere reference to sex by itself is


considered obscene, no books can be sold except those which


are purely religious. It was observed that in the field of


art and cinema, the adolescent is shown situations which


even    a   quarter     of     a    century   ago      would    be   considered


derogatory to public morality, but having regard to changed


conditions, the same are taken for granted without in any


way tending to debase or debauch the mind. What is to be


considered is whether a class of persons, not an isolated


case, into whose hands the book, article or story falls


will suffer in their moral outlook or become depraved by


reading     it   or    might   have     impure    and    lecherous    thoughts






                                                                              16
aroused in their minds. Even though the decision in that


case had upheld a conviction for the sale of a literary


work, it      became    clear       that   references       to   sex   cannot    be


considered obscene in the legal sense without examining the


context of the reference.






17. This position was later clarified in Samaresh Bose Vs.


Amal Mitra, AIR 1986 SC 967, where the Court held that in


judging the question of obscenity, the judge in the first


place should try to place himself in the position of the


author and      from    the    viewpoint      of    the     author,    the   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.






18. There are numerous other decisions, both from India and


foreign country which mandate that `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. Owing to the clear






                                                                                17
formulation on this issue it is not necessary for us to


discuss these precedents at length. In the present case,


the       appellant       has    merely      referred       to     the    increasing


incidence of pre-marital sex and called for its societal


acceptance. At no point of time appellant described the


sexual      act     or    said       anything   that       could    arouse      sexual


desires in the mind of a reasonable and prudent reader.


Furthermore, the statement has been made in the context of


a survey which has touched on numerous aspects relating to


the 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    the   above-


mentioned      subject.         In    the    long    run,    such    communication


prompts a dialogue within society wherein people can choose


to either defend or question the existing social mores. It


is difficult to appreciate the claim that the statements


published      as     part      of   the    survey   were    in     the    nature   of


obscene communications.






19. We must also respond to the claim that the appellant's


remarks could have the effect of misguiding young people by


encouraging them to indulge in premarital sex. This claim


is    a    little        far-fetched        since    the    appellant       had     not






                                                                                    18
directed her remarks towards any individual or group in


particular.     All    that    the    appellant      did     was     to    urge    the


societal     acceptance        of      the     increasing          instances        of


premarital sex when both partners are committed to each


other. This cannot be construed as an open endorsement of


sexual activities of all kinds. If it were to be considered


so, the criminal law machinery would have to take on the


unenforceable task of punishing all writers, journalists or


other   such      persons     for    merely       referring    to     any     matter


connected with sex in published materials. For the sake of


argument,      even    if     it     were     to    be     assumed        that     the


appellant's       statements        could    encourage        some        people    to


engage in premarital sex, no legal injury has been shown


since the latter is not an offence.






20.   "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     (vide        Proprietary       Articles           Trade






                                                                                   19
Association Vs. Attorney General for Canada AIR 1931 PC 94;


Thomas Dana Vs. State of Punjab AIR 1959 SC 375; Jawala Ram


& Ors. Vs. The State of Pepsu (now Punjab) & Ors. AIR 1962


SC 1246; and Standard Chartered Bank & Ors. Vs. Directorate


of Enforcement & Ors. AIR 2006 SC 1301).






21.   While     it    is    true    that   the   mainstream        view   in    our


society    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. At this


juncture, we may refer to the decision given by this Court


in Lata Singh Vs. State of U.P. & Anr., AIR 2006 SC 2522,


wherein it was observed that 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.                        A major girl


is free to marry anyone she likes or "live with anyone she


likes".    In that case, the petitioner was a woman who had


married a       man   belonging      to    another    caste    and    had      begun


cohabitation with him. The petitioner's brother had filed a


criminal complaint accusing her husband of offences under


Sections      366     and     368     IPC,     thereby     leading        to     the






                                                                                 20
commencement        of    trial     proceedings.      This     Court   had


entertained a writ petition and granted relief by quashing


the criminal trial. Furthermore, the Court had noted that


`no offence was committed by any of the accused and the


whole criminal case in question is an abuse of the process


of the Court'.






22. It would also be instructive to refer to a decision of


the House of Lords (U.K.) in Gillick Vs. West Norfolk and


Wisbech Area Health Authority, (1985) 3 All ER 402. In that


case, mother of a teenage girl had questioned the decision


of the National Health Service (NHS) to issue a circular to


local area     health     authorities      which   contained   guidelines


for rendering advice about contraceptive methods to girls


under the age of 16 years. Objections were raised against


this     circular    on   the     ground   that    the   health   service


authorities had no competence to render such advice and


that doing so could adversely affect young children while


at the same time interfering with parental autonomy in the


matter    of   bringing     up    children.    The   majority     decision


rejected the challenge against the circular by clarifying


that the rendering of advice about contraceptive methods


and their provision by medical professionals did not amount


to a sexual offence. Among the several aspects discussed in






                                                                       21
that case, it was held that the provision of information


about contraceptive facilities to girls under the age of 16


years     could    not     be    opposed     on        the   ground       that    such


information        could        potentially        encourage         more        sexual


activity by the teenagers. For the purpose of the present


case, this decision supports the reasoning that we must


fully   understand        the    context     and       the   purpose      for     which


references to sex have been made in any given setting.






23. We now turn to the question whether the appellant's


remarks could reasonably amount to offence of defamation as


defined under Section 499 IPC.                    In the impugned judgment


dated 30.4.2008, the High Court observed that as to whether


the appellant could claim a defence against the allegations


of defamation was a factual question and thus would                                 be


decided by a trial Court.                 However, even before examining


whether    the     appellant       can     claim       any   of     the    statutory


defences in this regard, the operative question is whether


the allegations in the impugned complaints support a prima


facie case of defamation in the first place. It is our


considered    view       that     there    is     no    prima     facie     case    of


defamation    in    the    present        case.    This      will    become      self-


evident if we draw attention to the key ingredients of the








                                                                                    22
offence contemplated by Section 499 IPC, which reads as


follows:






     "499. Defamation.- Whoever, by words either
     spoken or intended to be read, or by signs or by
     visible representations, makes or publishes any
     imputation concerning any person intending to
     harm, or knowing or having reason to believe that
     such imputation will harm, the reputation of such
     person, is said, except in the cases hereinafter
     expected, to defame that person.


     Explanation 1. - It may amount to defamation to
     impute anything to a deceased person, if the
     imputation would harm the reputation of that
     person if living, and is intended to be hurtful
     to the feelings of his family or other near
     relatives.


     Explanation 2. - It may amount to defamation to
     make an imputation concerning a company or an
     association or collection of persons as such.


     Explanation 3. - An imputation in the form of an
     alternative or expressed ironically, may amount
     to defamation.


     Explanation 4.- No imputation is said to harm a
     person's   reputation,   unless  that     imputation
     directly or indirectly, in the estimation of
     others,   lowers   the   moral   or     intellectual
     character of that person, or lowers the character
     of that person in respect of his caste or of his
     calling, or lowers the credit of that person, or
     causes it to be believed that the body of that
     person is in a loathsome state, or in a state
     generally considered as disgraceful. ..."


     (emphasis supplied)






The definition makes it amply clear that the accused must


either intend to harm the reputation of a particular person




                                                            23
or reasonably know that his/her conduct could cause such


harm. Explanation 2 to Section 499 further states that `It


may amount to defamation to make an imputation concerning a


company    or   an    association     or    collection        of   persons    as


such.'






24. With regard to the complaints in question, there is


neither any intent on part of the appellant to cause harm


to the reputation of the complainants nor can we discern


any actual harm done to their reputation. In short, both


the elements i.e. mens rea and actus reus are missing. As


mentioned earlier, the appellant's statement published in


`India    Today'      (in   September    2005)    is    a    rather    general


endorsement      of    premarital     sex   and   her       remarks    are   not


directed at any individual or even at a `company or an


association or collection of persons'. It is difficult to


fathom how the appellant's views can be construed as an


attack on the reputation of anyone in particular. Even if


we refer to the remarks published in `Dhina Thanthi' (dated


24.9.2005)      which   have   been     categorically         denied   by    the


appellant, there is no direct attack on the reputation of


anyone in particular. Instead, the purported remarks are in


the nature of rhetorical questions wherein it was asked if


people in Tamil Nadu were not aware of the incidence of






                                                                             24
sex. Even if we consider these remarks in their entirety,


nowhere has it been suggested that all women in Tamil Nadu


have engaged in premarital sex. That imputation can only be


found in       the   complaints    that   were    filed    by   the   various


respondents. It is a clear case of the complainants reading


in too much into the appellant's remarks.






25. This takes us to the question of whether the impugned


complaints were made in a bona fide manner. As we have


already noted, most of the complainants are associated with


the PMK, a political party which is active in the State of


Tamil Nadu. This fact does add weight to the suggestion


that    the    impugned     complaints    have    been     filed   with   the


intention of gaining undue political mileage. It may be


reiterated       here     that    in   respect    of      the   offence   of


defamation, Section 199 Cr.PC mandates that the Magistrate


can take cognizance of the offence only upon receiving a


complaint by a person who is aggrieved. This limitation on


the    power    to   take   cognizance     of    defamation      serves   the


rational purpose of discouraging the filing of frivolous


complaints      which     would   otherwise      clog     the   Magistrate's


Courts. There is of course some room for complaints to be


brought by persons other than those who are aggrieved, for


instance when the aggrieved person has passed away or is






                                                                          25
otherwise unable to initiate legal proceedings. However, in


given facts of the present case, we are unable to see how


the   complainants   can    be   properly     described   as   `persons


aggrieved' within the meaning of Section 199(1)(b)               Cr.PC.


As explained earlier, 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.    In   M.S.     Jayaraj   Vs.


Commissioner of Excise, Kerala & Ors., (2000) 7 SCC 552,


this Court observed as under:


      "The `person aggrieved' means a person who is
      wrongfully deprived of his entitlement which he
      is legally entitled to receive and it does not
      include any kind of disappointment or personal
      inconvenience. `Person aggrieved' means a person
      who is injured or one who is adversely affected
      in a legal sense."






26. We can also approvingly refer to an earlier decision of


this Court in G. Narasimhan & Ors. Vs. T.V. Chokappa, AIR


1972 SC 2609. In that case a controversy had arisen after


`The Hindu', a leading newspaper had published a report


about   a   resolution   passed    by   the   Dravida     Kazhagham,   a


political party, in its conference held on January 23-24,


1971. Among other issues, the resolution also included the


following words:


      "It should not be made an offence for a person's
      wife to desire another man."




                                                                    26
The Hindu, in its report, gave publicity to this resolution


by using the following words:


       "The Conference passed a resolution requesting
       the Government to take suitable steps to see that
       coveting another man's wife is not made an
       offence under the Indian Penal Code."




A complaint under Sections 499, 500 and 501 IPC was filed


in response      to    this    report.     Like      the    present     case,   the


Court    had   to     consider       whether   the     complainant       had    the


proper legal standing to bring such a complaint. The Court


did examine Section 198 of the Code of Criminal Procedure,


1898    (analogous     to     Section    199   of     the    Cr.PC.     1973)   and


observed that the said provision laid down an exception to


the general rule that a criminal complaint can be filed by


anyone irrespective of whether he is an "aggrieved person"


or not.    But there is a departure from this norm in so far


as the provision permits only an "aggrieved person" to move


the Court in case of defamation. This section is mandatory


and it is a settled legal proposition that if a Magistrate


were to take cognizance of the offence of defamation on a


complaint filed by one who is not an "aggrieved person",


the trial and conviction of an accused in such a case by


the    Magistrate      would     be     void   and     illegal.       This   Court


further    noted      that     the     news-item      in     question    did    not


mention    any      individual        person   nor     did    it   contain      any




                                                                                27
defamatory imputation against any individual. Accordingly,


it    was   held    that       the    complainant           was   not     a     `person


aggrieved' within the meaning of Section 198                            CrPC, 1898.


The Court also took note of Explanation 2 to Section 499


IPC    which   contemplates          defamation        of    `a     company      or   an


association        or    any    collection        of        persons       as    such'.


Undoubtedly,       the    explanation        is   wide        but    in       order   to


demonstrate the offence of defamation, such a collection of


persons must be an identifiable body so that it is possible


to say with precision that a group of particular persons,


as    distinguished      from        the   rest   of    the       community       stood


defamed. In case the identity of the collection of persons


is not established so as to be relatable to the defamatory


words or imputations, the complaint is not maintainable. In


case a class is mentioned, if such a class is indefinite,


the complaint cannot be entertained. Furthermore, if it is


not possible to ascertain the composition of such a class,


the criminal prosecution cannot proceed.


       While deciding the case, this Court placed reliance on


the judgment of the House of Lords in Knupffer Vs. London


Express Newspaper Ltd. (1944) 1 ALL ER 495, wherein it had


been held that it is an essential element of the cause of


action for defamation that the words complained of should


be published "of the complainant/plaintiff".                            Where he is






                                                                                      28
not   named,    the     test    would       be    whether         the    words       would


reasonably      lead        people     acquainted            with       him     to    the


conclusion that he was the person referred to.


      In fact, it is the reputation of an individual person


which must be in question and only such a person can claim


to have "a legal peg for a justifiable claim to hang on".






27.   Coming    back    to     the   facts       of    the    present         case,   the


complainants         have     alleged       defamation            in     respect       of


imputations against the character of Tamil-speaking women,


which   could    perhaps       be    viewed       as    a    class       of    persons.


However,        we     have    already       explained,           the     appellant's


remarks did not suggest that all women in Tamil Nadu have


engaged in premarital sex. In fact her statement in `India


Today' did not refer to any specific individual or group at


all. If we refer to one of the questions asked as part of


the concerned survey, one of the answers shows that 26% of


the people who responded to the same did not think that it


was necessary for women to retain their virginity till the


time of marriage. Clearly the appellant was not alone in


expressing such a view, even though it may be unpopular or


contrary to the mainstream social practices. Even if it


were assumed that the news-item carried in `Dhina Thanthi'


caused mental        agony     to    some   sections         of     women      in    Tamil






                                                                                       29
Nadu, there is no prima facie case for any offence. What is


interesting to note is that not all of the complainants are


women,    and     in     fact   almost     all       the    complainants     are


associated with a particular political party.






28. We are of the view that the institution of the numerous


criminal complaints against the appellant was done in a


mala fide manner. In order to prevent the abuse of the


criminal law machinery, we are therefore inclined to grant


the relief      sought     by   the    appellant.      In   such    cases,   the


proper course for Magistrates is to use their statutory


powers    to    direct    an    investigation        into    the   allegations


before taking cognizance of the offences alleged. It is not


the task of the criminal law to punish individuals merely


for expressing unpopular views. The threshold for placing


reasonable      restrictions      on     the   `freedom       of   speech    and


expression' is indeed a very high one and there should be a


presumption in favour of the accused in such cases. It is


only when the complainants produce materials that support a


prima facie case for a statutory offence that Magistrates


can proceed to take cognizance of the same. We must be


mindful    that    the    initiation      of     a   criminal      trial    is   a


process which carries an implicit degree of coercion and it








                                                                             30
should not be triggered by false and frivolous complaints,


amounting to harassment and humiliation to the accused.






29. Even though the constitutional freedom of speech and


expression     is    not   absolute    and        can    be        subjected    to


reasonable     restrictions    on   grounds       such    as       `decency     and


morality' among others, we must lay stress on the need to


tolerate unpopular views in the socio-cultural space. The


framers of our Constitution recognised the importance of


safeguarding this right since the free flow of opinions and


ideas is essential to sustain the collective life of the


citizenry. While an informed citizenry is a pre-condition


for meaningful governance in the political sense, we must


also promote a culture of open dialogue when it comes to


societal attitudes. Admittedly, the appellant's remarks did


provoke a controversy since the acceptance of premarital


sex   and   live-in    relationships      is   viewed         by    some   as   an


attack on the centrality of marriage. While there can be no


doubt   that    in    India,   marriage      is    an    important         social


institution, we must also keep our minds open to the fact


that there are certain individuals or groups who do not


hold the same view. To be sure, there are some indigenous


groups within our country wherein sexual relations outside


the marital setting are accepted as a normal occurrence.






                                                                                31
Even in the societal mainstream, there are a significant


number   of    people        who    see    nothing      wrong     in     engaging       in


premarital sex. Notions of social morality are inherently


subjective and the criminal law cannot be used as a means


to unduly interfere with the domain of personal autonomy.


Morality      and    Criminality          are     not   co-extensive.             In    the


present case, the substance of the controversy does not


really     touch      on     whether           premarital      sex     is        socially


acceptable.      Instead,          the    real    issue     of    concern         is    the


disproportionate        response          to    the   appellant's        remarks.       If


the complainants vehemently disagreed with the appellant's


views, then they should have contested her views through


the news media or any other public platform. The law should


not be used in a manner that has chilling effects on the


`freedom    of      speech    and    expression'.         It     would      be    apt    to


refer to the following observations made by this Court in


S. Rangarajan Vs. P. Jagjivan Ram & Ors., (1989) 2 SCC 574,


which spell out the appropriate approach for examining the


scope of `reasonable restrictions' under Art. 19(2) of the


Constitution that can be placed on the freedom of speech


and expression:-


     " ... Our commitment of freedom of expression
     demands that it cannot be suppressed unless the
     situations created by allowing the freedom are
     pressing   and   the    community  interest   is
     endangered. The anticipated danger should not be
     remote, conjectural or far-fetched. It should




                                                                                        32
     have   proximate    and    direct   nexus   with   the
      expression. The expression of thought should be
      intrinsically dangerous to the public interest.
      In   other   words,    the    expression   should   be
      inseparably    locked      up    with    the    action
      contemplated like the equivalent of a `spark in a
      powder keg'.


The Court further held:
      " ... The standard to be applied by the Board or
      courts for judging the film should be that of an
      ordinary man of common sense and prudence and not
      that of an out of the ordinary or hypersensitive
      man ... The different views are allowed to be
      expressed by proponents and opponents not because
      they are correct, or valid but because there is
      freedom in this country for expressing even
      differing views on any issue. ... Freedom of
      expression      which    is     legitimate    and
      constitutionally protected, cannot be held to
      ransom by an intolerant group of people. The
      fundamental freedom under Article 19(1)(a) can be
      reasonably restricted only for the purposes
      mentioned in Article 19(2) and the restriction
      must be justified on the anvil of necessity and
      not the quicksand of convenience or expediency.
      Open    criticism   of government   policies  and
      operations is not a ground for restricting
      expression. We must practice tolerance of the
      views of others. Intolerance is as much dangerous
      to democracy as to the person himself."


30.   Thus,   dissemination    of    news    and      views   for   popular


consumption is permissible under our constitutional scheme.


The different    views   are   allowed      to   be    expressed    by   the


proponents and opponents. A culture of responsible reading


is to be inculcated amongst the prudent readers. Morality


and   criminality        are   far   from    being     co-extensive.     An


expression of opinion in favour of non-dogmatic and non-








                                                                         33
conventional     morality       has   to   be    tolerated       as   the    same


cannot be a ground to penalise the author.






31.   Before saying omega, it is necessary for us to point


out certain unwarranted developments that have taken place


ever since the matter was heard till date.                 In fact, during


the course      of    hearing,    certain    queries      were    put   to   the


learned counsel appearing for parties so as to clarify the


legal issue involved in the matter but unfortunately, those


queries have been highly misunderstood not only by media


but also by common man.           As a result thereof, we have been


flooded with several letter petitions making a prayer for


review of the order passed by us.                    It is pertinent to


mention here that no order was passed by us and only during


the course of hearing, we had either given some instances


or put some questions to the learned counsel which were


answered by them.         Thus, this hyper active attitude of the


common man was, indeed, not called for.                     Some have even


gone to the extent of telling us that we should have known


the Indian mythology before putting such question. Thus,


whatever   we    have    said    during    the   course    of     the   hearing


should be reviewed.             We fail to understand how such an


attitude could be adopted by those learned persons who were


involved   in        sending    various     letter     petitions        to   us.






                                                                              34
Admittedly, all those persons who have sent letters to us


were    not    present       on    that      particular         date    but   must   have


gathered information from the print and electronic media


which evoked their sentiments to such an extent that they


prayed for review.






32.    It is, therefore, not only desirable but imperative


that electronic and news media should also play positive


role in presenting to general public as to what actually


transpires during the course of the hearing and it should


not be published in such a manner so as to get unnecessary


publicity       for    its    own       paper      or    news    channel.        Such   a


tendency, which is indeed growing fast, should be stopped.


We    are     saying    so    as       without      knowing       the    reference      in


context of which the questions were put forth by us, were


completely ignored and the same were misquoted which raised


unnecessary hue and cry.






33.    We hope and trust in future, they would be little more


careful, responsible and cautious in this regard.


34.    In    conclusion,          we   find     that     the     various      complaints


filed against the appellant do not support or even draw a


prima       facie   case     for       any    of   the    statutory       offences      as


alleged.       Therefore,          the       appeals      are     allowed      and   the






                                                                                      35
impugned   judgment   and   order   of   the    High         Court           dated


30.4.2008 is set aside. The impugned criminal proceedings


are hereby quashed.








                                                         ............................CJI.






                                                       ............................. J.
                                                        (DEEPAK VERMA)




                                                   ............................. J.
                                               (Dr. B.S. CHAUHAN)


New Delhi
April 28, 2010

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