Criticism of an organization cannot be taken as a criticism of a community. – Madras High Court

 CRL.O.P.(MD)NO. 20560 OF 2021BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED : 23.12.2021CORAMTHE HONOURABLE MR.JUSTICE G.R.SWAMINATHANCrl.O.P.(MD)No.205621 andCRL.MP(MD)No.117121Maridhas ... Petitioner Sole AccusedVs.1. State: Rep. By The Inspector of Police Melapalayam police station Tirunelveli Tirunelveli District. ... 1st Respondent2. Mohammed Kader Meeran ... 2nd Respondent Defacto Complainant Prayer: Criminal Original petition is filed under Section 482 of Cr.P.C to call for the records relating to First Information Report in Crime No.1320 on the file of the first respondent and quash the same. For Petitioner : Mr.Anantha Padmanabhan Mr.K.Govindarajan Mr.M.Karthikeyavenkatachalapathy. For R 1 : Mr.R.Shunmugasundaram Advocate General assisted by Mr.T.Senthilkumar Additional Public Prosecutor. For R 2 : Mr.A.Raja 1 19 https: www.mhc.tn.gov.in judis CRL.O.P.(MD)NO. 20560 OF 2021ORDERThis criminal original petition has been filed for quashing the First Information Report in Crime No.1320 registered on the file of the Inspector of Police Melapalayam police station Tirunelvlei District for the offences under Sections 292A 295A and 505(2) of I.P.C. 2.The defacto complainant is the second respondent herein. He is a member of Tamil Nadu Muslim Munnetra Kazhagam. After watching the video uploaded by the petitioner on the YouTube platform on 03.04.2020 at 11.00 PM he lodged information before the first respondent on the next day leading to registration of the impugned FIR. In his complaint the second respondent alleged that the petitioner had falsely spoken that the attendees of Tablighi Jamaat conference held in March 2020 at New Delhi were spreading Covid 19 he also insulted Islam with an intention to create ill will and discord between Muslims and non Muslims. 3.The learned counsel appearing for the petitioner reiterated the contentions set out in the memorandum of grounds and contended that the petitioner as a responsible YouTuber and commentator on current affairs had merely exercised his right to free speech. According to him the petitioner had not committed any of the offences set out in the FIR. 2 19 https: www.mhc.tn.gov.in judis CRL.O.P.(MD)NO. 20560 OF 20214.The learned Advocate General called upon this Court to bear in mind the conduct of the petitioner. The petitioner after obtaining anticipatory bail from the Principal Sessions Court Tirunelveli did not surrender and execute sureties. That is why he has been arrested. The first respondent had filed an application for taking the petitioner to police custody. The jurisdictional magistrate is actively seized of the petition. Investigation commenced only recently. This Court may therefore allow the legal process to take its normal course. The petitioner is a prominent social media personality. He ought to have been responsible while putting out his views. The video presentation runs to twenty seven minutes. The petitioner has used potentially provocative expressions. It is not necessary that public tranquility must have been actually disturbed as a result of the petitioner s act. It is enough if it is shown that there was a likelihood of breach of peace. He relied on the decision of the Hon ble Supreme Court reported in1 SCC 1prints or causes to be printed in any newspaper periodical or circular or exhibits or causes to be exhibited to public view or distributes or causes 5 19 https: www.mhc.tn.gov.in judis CRL.O.P.(MD)NO. 20560 OF 2021to be distributed or in any manner puts into circulation any picture or any printed or written document which is grossly indecent or in scurrilous or intended for blackmail or(b)sells or lets for hire or for purposes of sale or hire makes produces or has in his possession any picture or any printed or written document which is grossly indecent or is scurrilous or intended for blackmail or(c) conveys any picture or any printed or written document which is grossly indecent or is scurrilous or intended for blackmail knowing or having reason to believe that such picture or document will be printed sold let for hire distributed or publicly exhibited or in any manner put into circulation or(d) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such newspaper periodical circular picture or other printed or written document is printed exhibited distributed circulated sold let for hire made produced kept conveyed or purchased or(e) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section or that any such newspaper periodical circular picture or other printed or written document 6 19 https: www.mhc.tn.gov.in judis CRL.O.P.(MD)NO. 20560 OF 2021which is grossly indecent or is scurrilous or intended for blackmail can be procured from or through any person or(f) offers or attempts to do any act which is an offence under this section shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:Provided that for a second or any subsequent offence under this section he shall be punished with imprisonment of either description for a term which shall not be less than six months and not more than two years.Explanation I For the purposes of this section the word “scurrilous” shall be deemed to include any matter which is likely to be injurious to morality or is calculated to injure any person:Provided that it is not scurrilous to express in good faith anything whatever respecting the conduct ofa public servant in the discharge of his public functions or respecting his character so far as his character appears in that conduct and no further or(ii) any person touching any public question and respecting his character so far as his character appears in that conduct and no further.7 19 https: www.mhc.tn.gov.in judis CRL.O.P.(MD)NO. 20560 OF 2021Explanation II In deciding whether any person has committed an offence under this section the court shall have regard inter alia to the following considerationsThe general character of the person charged and where relevant the nature of his businessthe general character and dominant effect of the matter alleged to be grossly indecent or scurrilous or intended for blackmailany evidence offered or called by or on behalf of the accused person as to his intention in committing any of the acts specified in this section. Tamil Nadu Act 260 Section 3of IPC are present. The said provision reads as follows : “Statements creating or promoting enmity hatred or ill will between classes —10 19 https: www.mhc.tn.gov.in judis CRL.O.P.(MD)NO. 20560 OF 2021Whoever 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.”The counsel for the defacto complainant wanted to invoke Section 153A. The said provision is as follows : “Promoting enmity between different groups on grounds of religion race place of birth residence language etc. and doing acts prejudicial to maintenance of harmony —Whoever—by words either spoken or written or by signs or by visible representations or otherwise promotes or attempts to promote on grounds of religion race place of birth residence language caste or community or any other ground whatsoever disharmony or feelings of enmity hatred or ill will between different religious racial language or regional groups or castes or communities or(b) commits any act which is prejudicial to the maintenance of harmony between different religious 11 19 https: www.mhc.tn.gov.in judis CRL.O.P.(MD)NO. 20560 OF 2021racial language or regional groups or castes or communities and which disturbs or is likely to disturb the public tranquillity or(c) organizes any exercise movement drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence against any religious racial language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious racial language or regional group or caste or community shall be punished with imprisonment which may extend to three years or with fine or with both.In Manzar Sayeed Khan and Ors. vs. State of Maharashtra and Ors5 SCC 1 the Hon ble Supreme Court held as follows : “16.Section 153A of IPC as extracted hereinabove covers a case where a person by words either spoken or written or by signs or by visible 12 19 https: www.mhc.tn.gov.in judis CRL.O.P.(MD)NO. 20560 OF 2021representations or otherwise promotes or attempts to promote disharmony or feelings of enmity hatred or ill will between different religious racial language or regional groups or castes or communities or acts prejudicial to the maintenance of harmony or is likely to disturb the public tranquility. The gist of the offence is the intention to promote feelings of enmity or hatred between different classes of people. The intention to cause disorder or incite the people to violence is the sine qua non of the offence under Section 153A of IPC and the prosecution has to prove prima facie the existence of mens rea on the part of the accused. The intention has to be judged primarily by the language of the book and the circumstances in which the book was written and published. The matter complained of within the ambit of Section 153A must be read as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning.17. In Ramesh Chotalal Dalal v. Union of India and :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.”The petitioner s video does not involve two groups at all. There is no reference to religion race place of birth residence language caste or 14 19 https: www.mhc.tn.gov.in judis CRL.O.P.(MD)NO. 20560 OF 2021community. The Hon ble Supreme Court had clearly held that unless one group is sought to be pitted against the other on the aforementioned grounds the penal provisions are not at all attracted. It is on this ground Amish Devgan case relied on by the respondents is distinguishable. The religious element was so obvious in the said case. Even in Amish Devgan the Hon ble Supreme Court held that the question of intent would be relevant. The petitioner s intention was that the spread of the pandemic must be stopped. He wanted the persons who attended the conference to co operate with the administration and the health workers. “Contact tracing” was then a new addition to the national vocabulary. The cyber cell of the state police was effectively deployed to trace not only the attendees of the conference but also everyone else who came in contact with them. The petitioner nowhere spoke in a divisive manner. In fact he did not even challenge the ideology of Tablighi Jamaat which has now been proscribed as a terrorist organization by Saudi Arabian Government. He was directing his criticism only at a section of the attendees. One cannot lose sight of the fact that India is seen as a soft target by global terror networks. That a number of persons have been misled in the name of religion and turned terrorists is a reality. Terrorism can take any form. When pandemic struck it was seen as another form of bio warfare. Such 15 19 https: www.mhc.tn.gov.in judis CRL.O.P.(MD)NO. 20560 OF 2021reports were very much made even in the mainstream media. Therefore the petitioner cannot be blamed or faulted for having voiced his apprehensions. The petitioner held aloft icons such as Shri.Azim Premji. This shows that the petitioner never intended to cause any feeling of alienation in the Muslim community. A reading of the entire transcript of the video in question gives an impression that the petitioner wanted everyone to stand together with the administration in a time of grave health emergency. 12.The petitioner as a YouTuber actively commenting on current issues is entitled to the protection of Article 19(1)(a) of the Constitution. The petitioner has relied solely on the news resources then available in the public domain. Criticism of an organization cannot be taken as a criticism of a community. Tablighi Jamaat cannot be equated with Islam. It is a religious organization professing particular goals. No one can deny that Tablighi Jamaat came under severe and harsh criticism for its reckless and irresponsible conduct during March 2020. There are established reports that its puritanical and revivalistic project prepares the ground for islamic radiclation. Probably that is why even Saudi Arabia has recently banned it as a terrorist organization. 16 19 https: www.mhc.tn.gov.in judis CRL.O.P.(MD)NO. 20560 OF 202113.In Vinod Dua vs. Union of Indiaand Ors. AIR 2021 SC 3239 the Hon ble Supreme Court clarified that every journalist will be entitled to protection in terms of Kedar Nath Singh as every prosecution under Section 124A IPC and 505 IPC must be in strict conformity with the scope and ambit of the said Sections as explained in and completely in tune with the law laid down therein. After so holding the Hon ble Supreme Court quashed the FIR registered against the petitioner by invoking Article 32 of the Constitution of India. 14.The petitioner was granted anticipatory bail in this case. Due to the pandemic induced lockdown the petitioner did not surrender and execute sureties. This has been taken advantage of by the state police. The petitioner is under arrest. In these circumstances since the liberty of the petitioner was involved the quash petition was taken up for disposal. The prosecution was sought to be sustained by none other than the learned Advocate General of the State. The counsel for the defacto complainant also argued elaborately. After a careful consideration of the rival submissions I come to the conclusion that none of the ingredients of any of the offences are present in this case. The very registration of the impugned FIR is illegal and it stands quashed. 17 19 https: www.mhc.tn.gov.in judis CRL.O.P.(MD)NO. 20560 OF 202115.The criminal original petition stands allowed. Connected miscellaneous petition is closed. 23.12.2021Index : Yes NoInternet : Yes NoskmNote : Issue order copy today.Note: In view of the present lock down owing to COVID 19 pandemic a web copy of the order may be utilized for official purposes but ensuring that the copy of the order that is presented is the correct copy shall be the responsibility of the advocate litigant concerned.To:1.The Inspector of Police Melapalayam police station Tirunelveli Tirunelveli District. 2.The Additional Public Prosecutor Madurai Bench of the Madras High Court Madurai.18 19 https: www.mhc.tn.gov.in judis CRL.O.P.(MD)NO. 20560 OF 2021G.R.SWAMINATHAN J.skmCrl.O.P.(MD)No.205621 andCRL.M.P.(MD)No.11712123.12.202119 19 

Summary: “Indecent” relates to something morally offensive because it involves sex or being naked. “Scurrilous” means something that is very rude and insulting and intended to damage somebody’s reputation. “Blackmail” refers to the crime of demanding money from a person by threatening to make a revelation about him. I have relied on the meanings assigned to the said expressions in Oxford Advanced Learner’s Dictionary. These were stated and observed by the bench of Honourable Mr. Justice G. R. Swaminathan in the case of Maridhas v. State Rep. By, The Inspector of Police &amp; Anr. (CRL.O.P.(MD)NO. 20560 OF 2021) The crux of the case is the respondent herein is a member of Tamil Nadu Muslim Munnetra Kazhagam. After watching the video uploaded by the petitioner on the YouTube he lodged information before the first respondent on the next day leading to registration of the impugned FIR. In his complaint, the second respondent alleged that the petitioner had falsely spoken that the attendees of Tablighi Jamaat conference held in March 2020 at New Delhi were spreading Covid-19; he also insulted Islam with an intention to create ill-will and discord between Muslims and non-Muslims. The learned counsel appearing for the petitioner reiterated the contentions set out in the memorandum of grounds and contended that the petitioner as a responsible YouTuber and commentator on current affairs had merely exercised his right to free speech. According to him, the petitioner had not committed any of the offences set out in the FIR. The bench of Honourable Mr. Justice G. R. Swaminathan quashed the impugned FIR while referring the case of Vinod Dua vs. Union of India (UOI) and Ors. (AIR 2021 SC 3239), observed and stated “The petitioner as a YouTuber actively commenting on current issues is entitled to the protection of Article 19(1)(a) of the Constitution. The petitioner has relied solely on the news resources then available in the public domain. Criticism of an organization cannot be taken as a criticism of a community. Tablighi Jamaat cannot be equated with Islam. It is a religious organization professing particular goals. No one can deny that Tablighi Jamaat came under severe and harsh criticism for its reckless and irresponsible conduct during March 2020. There are established reports that its puritanical and revivalistic project prepares the ground for islamic radiclation. Probably that is why even Saudi Arabia has recently banned it as a terrorist organization.”