Judgment:
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :
04. 02.2015 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN AND THE HONOURABLE MS.JUSTICE V.M.VELUMANI Writ Petition (MD) No.5890 of 2014 Abdul Kabur ... Petitioner Vs.
1. Union of India Represented by the Ministry of Home Affairs, North Block, New Delhi 110001.
2. The Secretary to the Governor, The Secretariat of the Governor of Tamilnadu, Governor's Bungalow, Chennai.
3. State of Tamilnadu Represented by the Secretary Home Department, Secretariat, Chennai 600 009.
4. The Director General of Police, Police Head Quarters, Chennai 600 004.
5. The Central Bureau of Investigation, Represented by its Joint Director, Sasthri Bhavan, Chennai 600 006.
6. H.Raja ... Respondents (R2 is deleted vide court order dated 23.04.2014 in W.P.(MD) No.5890/14) (R6 impleaded vide court order dated 11.04.2014 in M.P.No.1 of 2014) Writ Petition filed under Article 226 of Constitution of India for issuance of writ of mandamus directing the third and fourth respondents to ensure the registration of the First Information Report on the basis of the representation dated 04.02.2014 submitted to the fourth respondent and the representation dated 07.03.2014 sent to the Governor of Tamilnadu and the same should be entrusted to the fifth respondent for investigation as per law; directing the fifth respondent to depute an officer not below the rank of the Deputy Superintendent of Police known for his/her integrity and efficiency to investigate the matter according to law; directing the first and third respondents to ensure preventing the You Tube or any other websites from exhibiting the contents of the public speech of Mr.H.Raj, the vice president of the state unit of the BJP which is the subject matter of this writ petition; directing the first and third respondents to give suitable instructions to the officials concerned to keep vigil and to take necessary action against those who are making inflammatory and instigative speeches and publications having overtone of communal hatred and animosity between different sections of people and pass such further or other orders as this Court may deem fit and proper in the circumstances of the case. !For Petitioner : Mr.P.Rathinam ^For R1 & R5 : Mr.G.R.Swaminathan Assistant Solicitor General of India For R3 and R4 : Mr.V.R.Shanmuganathan Special Government Pleader For R6 : Mr.C.Bharathi ******* Date of Reserving the Order :
19. 12.2014 Date of Pronouncing the Order :
04. 02.2015 :ORDER
V.M.VELUMANI,J.
The petitioner, who is a practising Advocate in this Court, has filed the present writ petition as a Public Interest Litigation praying for issuance of a writ of mandamus directing the third and fourth respondents to ensure the registration of the First Information Report on the basis of the representation dated 04.02.2014 submitted to the fourth respondent and the representation dated 07.03.2014 sent to the Governor of Tamilnadu and that the same should be entrusted to the fifth respondent for investigation as per law; directing the fifth respondent to depute an officer not below the rank of the Deputy Superintendent of Police known for his/her integrity and efficiency to investigate the matter according to law; directing the first and third respondents to ensure preventing You Tube or any other websites from exhibiting the contents of the public speech of Mr.H.Raja, the vice president of the State unit of the BJP which is the subject matter of this writ petition; directing the first and third respondents to give suitable instructions to the officials concerned to keep vigil; to take necessary action against those who are making inflammatory and instigative speeches and publications having overtone of communal hatred and animosity between different sections of people.
2. According to the petitioner, he is a member of an informal team of advocates and social activists working for the promotion of rule of law, secularism, human rights and social justice. He would submit that the members of the said team were shocked and worried about the on-going fundamentalist inflammatory campaign launched by the sixth respondent namely, Mr.H.Raja, one of the leaders and Vice President of the State unit of the Bharathiya Janatha Party (BJP), a national party. He has taken an extreme level of hatred, false and malicious propaganda against E.V.R.Periyar, Muslims and Christians in his inflammatory public speech and the same has been uploaded in the 'you tube video' website for the public. The petitioner and the members of his associations came to know about the speech of the sixth respondent through one of the articles which appeared in a Tamil daily 'The Hindu' on 26.01.2014 under the caption "ahfhtuhapDk; ehfhf;f" authored by Mr.Gnani, a popular Tamil Writer.
3. In a meeting at Chennai on 30.01.2014 with regard to the uncivilized, barbaric and unconstitutional attack made by the sixth respondent against E.V.R. Periyar, Muslims and Christians without any element of justification for such propaganda, all the members decided that action must be taken by the authorities concerned against the sixth respondent. On 04.02.2014, many leaders of other organizations joined with the petitioner's team and assembled near the office of the fourth respondent to submit their representation to him. The fourth respondent met only six of the front runners of the organizations and received their representation and assured that he would take suitable action as per law. Also, various organizations and law students met at Madurai and had a discussion and a representation dated 07.03.2014 was sent to the Governor of Tamilnadu with the signature of 53 dignitaries, but no action is taken so far.
4. It is the case of the petitioner that the contents of the speech of the sixth respondent are in violation of the existing constitutional and other laws of the land, especially, it attracts Sections 295(A), 505(1)(b)(c)(2) of the Indian Penal Code. Therefore, he has filed the present writ petition for issuance of a writ of mandamus seeking the aforesaid reliefs.
5. Respondents 3 and 4 have filed a counter denying the allegations made by the petitioner. According to respondents 3 and 4, the leaders of the petitioner organization met the fourth respondent on 04.02.2014 at his office and submitted their memorandum. The grievance of the petitioner was heard and it was assured that after following the procedure, action will be taken on the memorandum received. The said memorandum was submitted to the fourth respondent in the name of v!;/o/gp/I/ fl;rp/ The said representation of the organization is under enquiry and action will be taken as per law. According to respondents 3 and 4, the petitioner has made allegations with an ulterior motive to malign the Government and the police force.
6. For better appreciation of the case, paragraph nos.8 and 9 of the counter filed by the respondents 3 and 4 are reiterated thus:
8. It is submitted that one Kali. Poongundran,Vice President of Dravidar Kazhagam, lodged a complaint on 29.01.2014 before the Commissioner of Police, Chennai City against H.Raja, Vice President, BJP, regarding his inflammatory and instigative public speech at Valluvarkottam on 04.01.2014.Bearing the same averments, again the said Kali.Poongundran lodged a complaint to the Inspector of Police, F3 Numgambakkam Police Station on 22.03.2014. Based on the complaint CSR/62/F3 PS/L&O/2014 was registered on the same day and enquiry was conducted. In this regard on 01.10.2014, a case was registered in F3 Nungambakkam Police Station Crime No.1324/2014 under Sections 153A, 505(2) IPC against H.Raja. Action is being taken and the same is under process. Only one action could be taken on a single issue irrespective of more than one complaints.
9. It is further submitted that only based on the complaint dated 29.01.2014 and 22.03.2014 of Tr.Kali. Poongundran, the above said criminal case has been registered. The petitioner has not specified the organization which submitted the complaint to the fourth respondent on 04.02.2014.
7. Heard Mr.P.Rathinam, learned counsel for the petitioner, Mr.G.R.Swaminathan, learned Assistant Solicitor General of India appearing for respondents 1 and 5; Mr.VR.Shanmuganathan, learned Special Government Pleader appearing for respondents 3 and 4 and Mr.C.Bharathi, learned counsel appearing for the sixth respondent.
8. Learned counsel for the petitioner would submit that the petitioner had given a complaint at an earlier stage and the fourth respondent, having received the complaint on 04.02.2014, ought to have registered the same and investigated the matter. It is his contention that the fourth respondent failed to follow the ratio laid down in the judgment of the Hon'ble Supreme Court in the case of Lalita Kumari vs. Government of U.P and others reported in (2013) 4 MLJ (Crl) 579 SC.
9. Per contra, learned counsel appearing for respondents 3 and 4 would submit that one Kali.Poongundran lodged a complaint on 29.01.2014 before the Commissioner of Police, Chennai City against the sixth respondent and again on 22.03.2014, he gave a complaint to the Inspector of Police, F3 Nungambakkam Police Station. Based on the said complaint, CSR/62/F3 PS/L&O/2014 was registered on the same day and enquiry was conducted. On 01.10.2014, a case was registered by F3 Nungambakkam Police Station in Crime No.1324/2014 under Sections 153A, 505(2) IPC against the sixth respondent and action is being taken. Therefore, it is his contention that only one FIR can be registered for an occurrence and that a second FIR cannot be registered for the same occurrence. In support of his stand, he has relied upon a judgment of the Hon'ble Apex Court in the case of T.T. Antony Vs. State of Kerala reported in (2001) 6 SCC18 wherein, it is held thus:
"8. An information given under sub-section (1) of Section 154 CrPC is commonly known as first information report(FIR)though this term is not used in the Code. It is a very important document. And as its nickname suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 Cr.P.C, as the case may be, and forwarding of a police report under Section 173 Cr.P.C. It is quite possible and it happens not infrequently that more information than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 Cr.P.C. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the first information report ?. FIR postulated by Section 154 Cr.P.C. All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 CrPC. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of Cr.P.C. Take a case where an FIR mentions cognizable offence under Section 307 or 326 IPC and the investigating agency learns during the investigation or receives fresh information that the victim died, no fresh FIR under Section 302 IPC need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H ?. the real offender ?. who can be arraigned in the report under Section 173(2) or 173(8) CrPC, as the case may be. It is of course permissible for the investigating officer to send up a report to the Magistrate concerned even earlier that investigation is being directed against the person suspected to be the accused."
10. We have carefully scrutinized all the materials on record and given our thoughtful consideration to the arguments of the learned counsel for the petitioner and the learned counsel appearing for the respondents.
11. Learned counsel appearing for respondents 3 and 4 produced a copy of the FIR registered by F3 Nungambakkam Police Station for the alleged inflammatory speech of the sixth respondent. Also, it is stated by respondents 3 and 4 in their counter that the representation of the petitioner given on 04.02.2014 is under enquiry and action will be taken as per law.
12. In view of the above, taking into account the said statement made by respondents 3 and 4 in the counter, the fourth respondent herein is directed to consider the petitioner's representation dated 04.02.2014 and pass appropriate orders on merits and in accordance with law within a period of eight (8) weeks from the date of receipt of a copy of this order. With the above direction, this writ petition is disposed of. No costs. (V.D.P.,J.) (V.M.V.,J.) Index : Yes 04.02.2015 Internet: Yes ses/abe To :
1. The Ministry of Home Affairs Union of India, North Block, New Delhi 110001.
2. The Secretary to the Governor, Secretariat of the Governor of Tamilnadu, Governor's Bungalow, Chennai.
3. The Secretary Home Department, State of Tamilnadu, Secretariat, Chennai 600 009.
4. The Director General of Police, Police Head Quarters, Chennai 600 004.
5. The Central Bureau of Investigation, represented by its Joint Director, Sasthri Bhavan, Chennai 600 006. V.DHANAPALAN,J.
and V.M.VELUMANI,J.
ses/abe Pre-Delivery Order made in W.P.(MD) No.5890 of 2014 Dated:
04. .02.2015