1. Whether posing of a political repartee on the Twitter by a sitting Chief Minister of Jammu and Kashmir State can invite the wrath of the process of law at Madurai? and Whether the petitioner's complaint to the Inspector General of Police, South Zone should be wetted by inviting opinion of the Attorney General of India are the questions to be answered in this criminal original petition.
2.This criminal original petition came to be posted on being specially ordered before this Court. Heard the counsels for all the parties.
3.The petitioner claims to be a practicing Advocate in this High Court. He has filed the original petition seeking for a direction to get a legal opinion from the Attorney General of India / Advocate General of Tamil Nadu relatable to the locus standi of the criminal complaint dated 02.09.2011 on the file of the third respondent Inspector General of Police, South Zone, Madurai and to register a case according to law.
4.When this criminal original petition was filed in the Registry, the Registry had raised a query as to the maintainability of the original petition. The Registry raised objections regarding the cause of action for filing the petition in this Court, the provisions of law under which the original petition was filed seeking for an action against a person, who is a resident of Jammu and Kashmir and how the petitioner can call for legal opinions from the Chief legal officers of the Central and State Governments instead of seeking for a specific direction from this Court.
5.The counsel for the petitioner made an endorsement in the bundle that the news item posted in the twitter was viewed at Madurai and in the entire country. With reference to the second objection, the petitioner referred to the prayer made in the petition. With reference to the third objection, it was stated that because of the peculiar status of Jammu and Kashmir, an opinion must be sought for.
6.The Registry not convinced by the written endorsement posted the matter before the open court for deciding the question of maintainability. A learned Judge of this Court directed the Government Advocate to take notice on the unnumbered O.P to decide the question of maintainability. Subsequently, when the matter came up before another learned Judge on 18.10.2011, he directed the numbering of the original petition subject to its maintainability. He had also recorded that notice taken by the respective Standing Counsels for the respondents on the O.P. It was recorded that Mr.K.K.Senthilvelan, learned Assistant Solicitor General took notice for first respondent Director General National Investigation Agency (India), New Delhi. Mr.Rozario Sundar Raj, learned Standing Counsel for CBI for the second respondent and Mr.P.Chellapandian, learned Additional Advocate General for the third respondent. The learned Judge further directed to post the mater on 28.10.2011.
7.On the day when the matter came up for admission, the learned Additional Advocate General submitted that no complaint dated 02.09.2011 was ever submitted to the third respondent. Therefore, he was further directed to get instructions and to submit whether such a complaint was received by the third respondent. But, the learned counsel for the petitioner maintained that a complaint, dated 02.09.2011 was personally given to the third respondent. Hence the matter was passed over to the afternoon to find out whether the third respondent had received any complaint. The Register recording the receipt of complaints maintained by the office of the third respondent was produced. No entries were found for the receipt of the complaint in the Register. However, the counsel for the petitioner had objected to the submission of the learned Additional Advocate General. As the complaint given by him was serious, it required to be investigated. When further asked as to how without a complaint such an investigation was possible, the counsel for the petitioner protested against the remark and submitted that he will not get proper justice from that judge. Therefore, the matter was directed to be posted before some other court. Accordingly, the matter came up before this court by the orders of the Administrative Judge.
8.In the original petition, it was claimed that the Tamil Nadu Legislative Assembly had passed an unanimous resolution to reduce the death sentence of M/s.Santhan, Murugan and Perarivalan, accused in the Rajiv Gandhi assassination case, into one of life imprisonment and an appeal was made on 30.08.2011 for Presidential intervention. subsequently, a division bench also had stayed the execution of the above three prisoners. According to the petitioner, on the very next day, i.e. on 31.8.2011, on the twitter.com and the face book maintained by Mr.Omar Abdullah, the Chief Minister of Jammu & Kashmir State, a message was found posted. The same was reported subsequently in the website of a news paper and it reads as follows:
Abdullah, on the microblogging site, said that if the J&K assembly had passed a resolution against the death sentence given to Guru as was done by the Tamil Nadu assembly for the killers of Rajiv Gandhi, the reaction would not have been as muted as it is now.
If Tamil Nadu assembly can adopt a resolution urging clemency to three convicts in Rajiv Gandhi assassination case and Punjab's Prakash Singh Badal can come forward to defend another convict on death row, Devinder Singh Bhullar, then there should be no hue and cry if the Jammu and Kashmir assembly passes a resolution seeking clemency for parliament attach Accused Afzal Guru, awaiting death penalty.
9.The online news letter, dated 4.9.2011 also stated that on the question about the controversial comment, he retorted that if the BJP leader Sushma Swaraj can put tweet statements, why he cannot do the same. Thereafter, it was claimed that the Jammu and Kashmir Chief Minister also stated that double standards have been played over the delayed death penalty. Further, he queried as to what would be the reaction if the same resolution was passed by the Jammu and Kashmir Assembly. This allegation came after a resolution was passed by the Tamil Nadu Assembly requesting the President of India to show mercy on the killers. In the light of the twitter posting and the news report attributed to the Chief Minister of Jammu and Kashmir Mr.Omar Abdullah, the petitioner alleged that Mr.Omar Abdullah, the Chief Minister and a resident of Jammu and Kashmir, had committed offences under Section 124-A, 298 and 505(1)(b) and (c) and (2) of the IPC. It was stated that as a backlash and the irresponsible statements made by the Chief Minister of Jammu and Kashmir, the subversive elements promoting Islamic Fundamentalism have planted bombs in the Delhi high Court which was made possible by the anti secular and dichotomous statements made by Mr.Omar Abdullah. The unity and integrity of the republic India and this federal structure have been incurably attacked by a constitutional authority in his personal capacity. The statements in the website were also carried by all daily news papers on the next day on 01.09.2011.
10.It was claimed that Section 1 of the IPC, Evidence Act and Criminal Procedure Code, those enactments were not made applicable to the State of Jammu and Kashmir. Article 370 of the Constitution provides for separate constitution to Jammu and Kashmir. Therefore, though offences were committed by a citizen residing in Jammu and Kashmir he cannot be proceeded, despite the affected parties are staying within the Union of India. The petitioner allegedly made a complaint to the third respondent on 2.9.2011 by stating that Mr.Omar Abdullah, a resident of Srinagar, Jammu and Kashmir State had committed offences against the people of Tamil Nadu represented by the legislature of Tamil Nadu by making comparison of the condemned prisoners M/s.Murugan, Santhan and Perarivalan with Afzal Guru (involved in Parliament Attack case). The petitioner also requested the third respondent to get legal opinion both from the Central and State Governments for proceeding against Mr.Omar Abdullah. When nothing was forthcoming, he filed the petition under Section 482 Cr.P.C. for an efficacious and speedy remedy. Therefore, it was prayed by the petitioner that the respondents should get legal opinion from the Attorney General of India / Advocate General of Tamil Nadu about the locus standi of his criminal complaint, dated 02.09.2011 on the file of the third respondent and to register a case for further investigation.
11.In support of the criminal original petition, the petitioner enclosed twitter statements, news paper clippings from the Hindu an English daily, dated 01.09.2011 as well as the copy of an alleged complaint, dated 02.09.2011 given by the petitioner to the third respondent.
12.Insofar as the complaint given by the petitioner, it was categorically stated before this court by the learned Additional Advocate General that no such complaint was ever received by the respondents. It was noted already by a learned Judge of this court, the register of complaints maintained by the third respondent do not show that such a complaint was received. When the petitioner wants to set the criminal law in motion, he ought to have produced the proof before this court that a written complaint was given to the concerned Station House Officer or to any of his superiors, without which this court cannot consider making any direction as sought for. On this short ground, this criminal original petition was liable to be dismissed as not maintainable.
13.Since much hue and cry was raised about the alleged offences committed by Mr.Omar Abdullah, the Chief Minister of Jammu and Kashmir, this court is inclined to look into the alleged complaint made by the petitioner to find out whether the complaint had prima facie disclosed offence under Sections 124(A), 298 and 505(1)(b) and (c) and (2) of IPC so as to warrant any direction to the respondents to take action?
14.Except by stating the statements made by Mr.Omar Abdullah, the Chief Minister of Jammu and Kashmir, the petitioner did not clearly state as to how the statement attributed to the Chief Minister of the Jammu and Kashmir will amount to an offence in terms of the three provisions pointed out by him. It is merely alleged that as a backlash of the statements and due to anti secular and dichotomous statements of the Chief Minister of Jammu and Kashmir, there was a bomb planted in the Delhi High Court premises and that the unity and integrity of India was incurably attacked by the Chief Minister who is a constitutional authority though the statements were made in his personal capacity.
15.Mr.W.Peter Ramesh Kumar, learned counsel for the petitioner stated that even if an offence is committed outside India, the courts in India are not precluded from investigating those offences. For this purpose, he placed reliance upon a judgment of this court in S.Sethu Raja Vs. The Chief Secretary, Government of Tamil Nadu, St. George Fort, Chennai-600 009 and others reported in 2007 (5) MLJ 404 for the purpose of contending that even if offences committed outside the territory of India, the local police can register the offence in terms of Section 4 of IPC read with S.188 Cr.P.C.
16.He also stated that if a person is not a citizen of India and subsequently acquires Indian domicile, a trial can be conducted in India. A reference was made to a judgment of the Supreme Court in Central Bank of India Ltd. Vs. Ram Narain reported in AIR 1955 SC 36.
17.For the very same propositions, the learned counsel relied upon two other judgments of the Supreme Court in Ajay Agarwal Vs. Union of India and others reported in (1993) 3 SCC 609 and in Fatma Bibi Ahmed Patel Vs. State of Gujarat and another reported in (2008) 6 SCC 789.
18.A reference was also made to a judgment of the Supreme Court in Ramesh Kumari Vs State (N.C.T. Of Delhi) and others reported in (2006) 2 SCC 677, wherein the genuineness and credibility of information was held to be not a condition precedent for registration of a case and the same can be considered only after registration. It was held in that case that the ground of alternative remedy or pendency of a contempt petition cannot be substituted in law so as to not to register a criminal case when a citizen makes a complaint of cognizable offence against a police officer.
19.The counsel further referred to a judgment of the Kerala High Court in Remia and another Vs. Sub inspector of Police, Tanur and others reported in 1993 Crl.L.J. 1098, in which it was reiterated that if an offence is committed in a foreign country by the Indian citizen, the refusal to register a complaint against such accused is illegal and under Section 188, if the offence is committed outside India, the sanction of the Central Government at the pre enquiry stage was not necessary.
20.However, this court is surprised as to why the petitioner should endeavour to refer to case laws relating to jurisdiction of the Indian Courts to file a criminal case against a person residing outside territory of India for offences committed in India. Admittedly, the person against whom (Mr.Omar Abdullah) the petitioner seeks to file a complaint is a citizen of India and the Chief Minister of Jammu and Kashmir. The Jammu and Kashmir is part of the Indian Union in terms of Article 1(3)(a) of the Constitution read with First Schedule Entry 15. Under the said provision that the territory of India shall comprise of territory of the States. That against the Entry 15, in which the name of Jammu and Kashmir State is provided, it is stated that the territory which immediately before the commencement of this Constitution are comprised in the Indian States of Jammu and Kashmir. It is misnomer to contend that the jurisdiction of the Indian Criminal laws were not made applicable to the State of Jammu and Kashmir and it showed the total lack of understanding of the constitutional scheme of the Indian Constitution. Hence it is necessary to briefly set out the special status given to Jammu and Kashmir State.
21.Under Article 370 of the Constitution, the State of Jammu and Kashmir has been given a special position and is allowed to have its own constitution. In this context, it is necessary to refer to a judgment of the Supreme Court in Prem Nath Kaul v. State of J&K reported in 1959 Supp (2) SCR 270 = AIR 1959 SC 749, wherein the Supreme Court had discussed the proclamation of the Constitution (Application to Jammu & Kahmir) Order, 1950 (CO 10). it is necessary to refer to paragraph 15 of the said judgment which reads as follows: 15.This proclamation was followed by the Constitution (Application to Jammu & Kashmir) Order, 1950 (CO 10) which was issued on January 26, 1950, by the President in consultation with the Government of Jammu & Kashmir and in exercise of the powers conferred by clause (1) of Article 370 of the Constitution. It came into force at once. Clause (2) of this order provides that for the purposes of sub-clause (i) of Article 370 of the Constitution, the matters specified in the First Schedule to the order correspond to matters specified in the Instrument of Accession governing the accession of the State of Jammu & Kashmir to the Dominion of India as the matters with regard to which the Dominion Legislature may make laws for that State; and accordingly the power of Parliament to make laws for that State shall be limited to the matters specified in the said First Schedule. Clause (3) provides that, in addition to the provisions of Article 1 and Article 370 of the Constitution the only other provisions of the Constitution which shall apply to the State of Jammu & Kashmir shall be those specified in the Second Schedule to the Order and shall so apply subject to the exceptions and modifications specified in the said Schedule. The First Schedule to the Order specified 96 items occurring in the Union List; while the Second Schedule set out the articles of the Constitution made applicable to the State together with the exceptions and modifications. Later on we will have occasion to refer to some of these articles on which the appellant has relied.
22.The President of India has also been given power to amend the Constitution of Jammu and Kashmir by a Presidential order and this position has been clarified by the Supreme Court vide its judgment in Puranlal Lakhanpal v. President of India reported in (1962) 1 SCR 688 = AIR 1961 SC 1519 and in paragraph 4 of the said judgment, it was observed as follows: 4.... As we have said already the object behind enacting Article 370(1) was to recognise the special position of the State of Jammu and Kashmir and to provide for that special position by giving power to the President to apply the provisions of the Constitution to that State with such exceptions and modifications as the President might by order specify. We have already pointed out that the power to make exceptions implies that the President can provide that a particular provision of the Constitution would not apply to that State. If therefore the power is given to the President to efface in effect any provision of the Constitution altogether in its application to the State of Jammu and Kashmir, it seems that when he is also given the power to make modifications that power should be considered in its widest possible amplitude. If he could efface a particular provision of the Constitution altogether in its application to the State of Jammu and Kashmir, we see no reason to think that the Constitution did not intend that he should have the power to amend a particular provision in its application to the State of Jammu and Kashmir. It seems to us that when the Constitution used the word modification in Article 370(1) the intention was that the President would have the power to amend the provisions of the Constitution if he so thought fit in their application to the State of Jammu and Kashmir. ....
23.The further averment that the Indian Penal Code and Criminal Procedure Code will not apply to the State of Jammu and Kashmir has no relevance, since the State of Jamu and Kashmir is having Ranbir Penal Code which is the replica of the IPC. They are also having J & K Criminal Procedure Code, 1989 similar to the Cr.P.C. applied here. The petitioner cannot argue as if there are no criminal laws made applicable to the State of Jammu and Kashmir or that the Constitution of India do not apply to the said State.
24.The other allegation that by posing certain messages in the Twitter, Mr.Omar Abdulla had committed offences under Sections 124A, 298 and 505(1)(b) and (c), (2) is concerned, the petitioner himself is not sure about the commission of such offences as well as application of such provisions to a person who is the resident of Jammu and Kashmir. That was why he seeks for a legal opinion to be obtained either from the Attorney General of India or the Advocate General of the State.
25.The question whether an Investigating Officer in-charge of the investigation in crime is bound to seek for an opinion from the Public Prosecutor or any other authority came up before the Supreme Court in R.Sarala Vs. T.S.Velu and others reported in (2000) 4 SCC 459 and in paragraph 7 of the said judgment, the Supreme Court summed up the controversies raised in the said case which is as follows:
7.Mr S. Sivasubramaniam, learned Senior Counsel who argued for the appellant contended that learned Single Judge had seriously erred in directing the investigating officer to submit the amended charge-sheet in accordance with the opinion of the Public Prosecutor. Shri V. Balachandran, learned counsel arguing for the first respondent tried to support the impugned order on the premise that there is nothing objectionable for the investigating officer to consult the Public Prosecutor before laying a report under Section 163(2) of the Code.
26.Answering the said contention, in paragraphs 8 and 10, the Supreme Court observed as follows:
8.The question here is not simply whether an investigating officer, on his own volition or on his own initiative, can discuss with the Public Prosecutor or any legal talent, for the purpose of forming his opinion as to the report to be laid in the court. Had that been the question involved in this case it would be unnecessary to vex our mind because it is always open to any officer, including any investigating officer, to get the best legal opinion on any legal aspect concerning the preparation of any report. But the real question is, should the High Court direct the investigating officer to take opinion of the Public Prosecutor for filing the charge-sheet?
10....There is no stage during which the investigating officer is legally obliged to take the opinion of a Public Prosecutor or any authority, except the aforesaid superior police officer in rank.
27.If that is the legal position, even at the time of filing of a report under Section 163(2) before a competent Magistrate Court, the petitioner's request for direction even before the start of the investigation that the Investigating Officer should seek for a legal opinion cannot be countenanced and it is unwarranted.
28.First of all, the question whether the third respondent had received the complaint is only the question of fact. The petitioner had not filed appropriate complaint before a Station House Officer competent to register a case and failing which he had sent the complaint to a higher officer like the third respondent. Even in such cases, if no worthwhile action is contemplated or taken by such authority, it is not as if the petitioner is without remedy. In this context, it is necessary to refer to a judgment of the Supreme Court in Sakiri Vasu Vs. State of Uttar Pradesh and others reported in (2008) 2 SCC 409 and in paragraph 11, it was observed as follows:
11. ... if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) CrPC before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.
The petitioner had miserably failed to prove that he had actually sent a complaint to the third respondent.
29.Since the petitioner had repeatedly emphasized the impugned message put up by the Chief Minister of Jammu and Kashmir Mr.Omar Abdullah, would invite the offence under IPC. Hence it has to be seen whether any prima facie offences were made out. As to what constitutes an offence and under what circumstances the authority can proceed and take cognizance of offence came to be considered by the Supreme Court in S.Khushboo Vs. Kanniammal and another reported in (2010) 5 SCC 600. In paragraph 30 what constitutes an offence is set out, which reads as follows:
30.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 IPC or under special or local law or as defined under Section 2(n) CrPC or Section 3(38) of the General Clauses Act, 1897 (vide Proprietary Articles Trade Assn. v. Attorney General of Canada8; Thomas Dana v. State of Punjab9; Jawala Ram v. State of Pepsu10 and Standard Chartered Bank v. Directorate of Enforcement11).
30.Even if such an offence was brought in the form of a complaint before a Magistrate, it was stated that the materials produced must support prima facie case that it was a statutory offence. In the very same judgment in paragraph 44 it was observed as follows:
44....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 should not be triggered by false and frivolous complaints, amounting to harassment and humiliation to the accused. (Emphasis added)
31.In this context, it should be examined whether the ingredients of offences as pointed out by the petitioner is found out in the impugned message posted on the twitter. It is necessary to refer to certain judgments of the Supreme Court which will have a bearing on this case. First the provisions of Section 124-A must be looked into and the Section 124-A IPC reads as follows: 124A. Sedition.-Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in [India] shall be punished with [imprisonment for life], to which fine may be added or with imprisonment which may extend to three years, to which find may be added, or with fine.
32.In this context, it is necessary to quote a judgment of the Calcutta High Court, wherein it dealt with the scope of Section 124A IPC in the context of certain speech advocating result against the Government vide its judgment in Kamal Krishna Sircar Vs. Emperor reported in AIR 1935 Cal 636 = 36 Crl.L.J.1370. In the course of the judgment, the Calcutta High Court after dealing with the speech in question, had observed as follows:
It is really absurd to say that speeches of this kind amount to sedition. If such were the case, then every argument against the present form of Government and in favour of some other form of Government might be alleged to lead to hatred of the Government, and it might be suggested that such ideas brought the Government into contempt. To suggest some other form of Government is not necessarily to bring the present Government into hatred or contempt.
33.This came to be quoted with approval by the Supreme Court in its judgment in S.Rangarajan Vs. P.Jagjivan Ram and others reported in (1989) 2 SCC 574 and in paragraph 46, it was observed as follows:
46.Our remarkable faith in the freedom of speech and expression could be seen even from decisions earlier to our Constitution....
34.In the very same judgment, while dealing with the freedom of speech under Article 19 and the reasonable restrictions imposed under Article 19(2), the Supreme Court in paragraph 45 had held as follows: 45.The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. 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 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 power keg.
35.The Supreme Court further elaborating the reasonable restrictions found under Article 19(2) once again dealt with the issue in Life Insurance Corporation of India Vs. Prof.Manubhai D.Shah reported in (1992) 3 SCC 637 and in paragraph 8, it was observed as follows:
8..... Every citizen of this free country, therefore, has the right to air his or her views through the printing and/or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution. ......... in a democratic set-up like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19(2) of the Constitution. It follows that a citizen for propagation of his or her ideas has a right to publish for circulation his views in periodicals, magazines and journals or through the electronic media since it is well known that these communication channels are great purveyors of news and views and make considerable impact on the minds of the readers and viewers and are known to mould public opinion on vital issues of national importance. Once it is conceded, and it cannot indeed be disputed, that freedom of speech and expression includes freedom of circulation and propagation of ideas, there can be no doubt that the right extends to the citizen being permitted to use the media to answer the criticism levelled against the view propagated by him...... It is, therefore, obvious that subject to reasonable restrictions placed under Article 19(2) a citizen has a right to publish, circulate and disseminate his views and any attempt to thwart or deny the same would offend Article 19(1)(a).
36.Therefore, in the light of the above discussion, the impugned message put up in the Twitter by Mr.Omar Abdullah, the Chief Minister of Jammu and Kashmir is not even remotely connected with or attract the ingredients of Section 124-A.
37.The second provision of law quoted by the petitioner is section 298 IPC. The said section 298 of IPC reads as follows:
298.Uttering words, etc., with deliberate intent to wound religious feelings.-- Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. It is not clear as to how the ingredients of Section 298 is attracted by the comments attributed to Mr.Omar Abdullah.
38.The third provision is section 505(1)(a) and (b) and (2) of IPC quoted by the petitioner reads as follows :
Section 505(1)Whoever makes, publishes or circulates any statement, rumour or report,-
(a) with intent to cause, or which is likely to cause, any officer, soldier, 3[ sailor or airman] in the Army, 4[ Navy or Air Force] 5[ of India] to mutiny or otherwise disregard or fail in his duty as such; or
(b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility; or ........
505. (2) Statements creating or promoting enmity, hatred or ill will between classes.-Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment which may extend to three years, or with fine, or with both.
39.The scope of Section 505(2) came to be considered in comparison with Section 153A IPC by the Supreme Court in Bilal Ahmed Kaloo v. State of A.P., reported in (1997) 7 SCC 431. While dealing with the same, in paragraphs 10,11,15 and 16, the Supreme Court had observed as follows:
10. .......The common ingredient in both the offences is promoting feeling of enmity, hatred or ill will between different religious or racial or linguistic or regional groups or castes or communities. Section 153-A covers a case where a person by words, either spoken or written, or by signs or by visible representations promotes or attempts to promote such feeling. Under Section 505(2), promotion of such feelings should have been done by making and publishing or circulating any statement or report containing rumour or alarming news.
11. This Court has held in Balwant Singh v. State of Punjab2 that mens rea is a necessary ingredient for the offence under Section 153-A. Mens rea is an equally necessary postulate for the offence under Section 505(2) also as could be discerned from the words with intent to create or promote or which is likely to create or promote as used in that sub-section.
15. The common feature in both sections being promotion of feeling of enmity, hatred or ill will between different religious or racial or linguistic or regional groups or castes and communities, it is necessary that at least two such groups or communities should be involved. Merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either of the two sections.
16. The result of the said discussion is that the appellant who has not done anything as against any religious, racial or linguistic or regional group or community cannot be held guilty of either the offence under Section 153-A or under Section 505(2) of 1PC.
40.The Supreme Court while dealing with the ingredients of Section 505(2) considered the effect of the words uttered and published which are sought to be made as offences, vide its judgment in Manzar Sayeed Khan v. State of Maharashtra, reported in (2007) 5 SCC 1 in paragraphs 17 and 18 had held as follows:
17.In Ramesh v. Union of India1 this Court held that TV serial Tamas did not depict communal tension and violence and the provisions of Section 153-A IPC would not apply to it. It was also not prejudicial to the national integration falling under Section 153-B IPC. Approving the observations of Vivian Bose, J. in Bhagwati Charan Shukla v. Provincial Govt.2 the Court observed that the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. It is the standard of ordinary reasonable man or as they say in English law 'the man on the top of a Clapham omnibus'. (Ramesh case1, SCC p. 676, para 13)
18. Again in Bilal Ahmed Kaloo v. State of A.P.3 it is held that the common feature in both the sections viz. Sections 153-A and 505(2), being promotion of feeling of enmity, hatred or ill will between different religious or racial or linguistic or regional groups or castes and communities, it is necessary that at least two such groups or communities should be involved. Further, it was observed that merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either of the two sections.
41.Hence the ingredients of none of the three provisions stood attracted to the impugned message put up by Mr.Omar Abdullah. Hence the question of this court directing the third respondent to initiate the criminal process by consulting the Chief legal officers of the Central and State Government do not arise. This is besides the finding that no such complaint was ever proved to have been given to the third respondent in the manner known to law.
42.Further it has to be seen as to how the petition under Section 482 Cr.P.C is maintainable? The Supreme Court while dealing with the power to be exercised under Section 482 Cr.P.C. dealt with the circumstances under which such power can be exercised vide its judgment inDivine Retreat Centre v. State of Kerala reported in (2008) 3 SCC 542 and in paragraphs 27 and 28, it was observed as follows:
27.In our view, there is nothing like unlimited arbitrary jurisdiction conferred on the High Court under Section 482 of the Code. The power has to be exercised sparingly, carefully and with caution only where such exercise is justified by the tests laid down in the section itself. It is well settled that Section 482 does not confer any new power on the High Court but only saves the inherent power which the Court possessed before the enactment of the Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice.
28. Chandrachud, J. (as His Lordship then was), in Kurukshetra University v. State of Haryana9 while considering the nature of jurisdiction conferred upon the High Court under Section 482 of the Code observed: (SCC p. 451, para 2) 2. It ought to be realised that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.
43.Once again, a similar view was reiterated in a subsequent judgment of the Supreme Court in Gorige Pentaiah v. State of Andhra Pradesh, reported in (2008) 12 SCC 531 and in paragraphs 12 and 15, it was observed as follows: Scope and ambit of courts' powers under Section 482 CrPC
12.This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of court; and
(iii) to otherwise secure the ends of justice.
Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute.
Discussion of decided cases.
15. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.
44.If the petitioner is a lay person, this court would not have taken exception in filing such complaint and would have simply dismissed the petition. The petitioner claims that he is an Advocate by profession. By training and practice, an Advocate must be well informed on the nuances of law and he ought not to have filed such a petition. If he is not aware of the legal issues involved, he ought to have gone to a law library and should have appraised himself about the correct legal position and thereafter should have set the law in motion. On the contrary, the present attempt is to get cheap popularity through filing frivolous petitions and the precious time of this Court is wasted by such an attempt. It will be worthwhile to recall the warning administered by the Supreme Court in Inder Mohan Goswami Vs. State of Uttaranchal reported in (2007) 12 SCC 1. A three Judge bench of the Supreme Court while examining the scope and ambit of Section 482 of the Criminal Procedure Code, observed that inherent powers under Section 482 should be exercised for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be fully justified in preventing injustice by invoking inherent powers of the court.
45.In Gorige Pentaiah's case (cited supra), the Supreme Court had observed that filing of such frivolous complaints are total abuse of process of law.
46.In the light of the above, the criminal original petition will stand dismissed. Since the respondents are official respondents and since this court came across the petition for the first time, the petitioner is let out without imposing costs. This is with the fond hope that in future the petitioner will show some self restraint, maintain dignity and discharge the obligation imposed on the with legal profession.