FB Post Against General Bipin Rawat is an uncivil remark but no IPC Offence: Madras High Court

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED : 21.01.2022CORAMTHE HONOURABLE MR.JUSTICE G.R.SWAMINATHANCrl.O.P.(MD)No.1022andCrl MP(MD)No.722G.Sivarajaboopathi ... Petitioner Vs.1.State rep.by The Inspector of Police Cyber Crime Police Station Nagercoil. ...1st respondent complainant2.Dharmaraj ...2nd respondent defacto complainant Prayer: Criminal Original Petition filed under Section 482 Cr.P.C. to call for the records relating to the impugned FIR in Crime No.321 dated 15.12.2021 on the file of the first respondent and quash the same insofar as the petitioner is concerned. For Petitioner : Mr.G.Prabhu RajaduraiFor Respondents : Mr.T.Senthil Kumar Additional Public Prosecutor for R1 Mr.M.Karthikeya Venkatachalapathy for R2 1 10 https: www.mhc.tn.gov.in judis ORDER Following the demise of Gen.Bipin Rawat on 08.12.2021 the petitioner s Face Book page carried the following post : “ghrp] Lfspd iff $yp rh thjpfhhp gpgpDf fhf fz zPh rpe JtJ mtkhdk !.”(It is disgrace to shed tears for “Dictator Bipin Rawat” the mercenary of the fascists). It was shared by the co accused also. 2.The petitioner s act raised the hackles of the defacto complainant who brought it to the notice of the Inspector of Police Cyber Crime Police Station Nagercoil. Crime No.321 was registered against the petitioner and another for the offences under Sections 153 505(2) and 504 of IPC on 15.12.2021. The petitioner has filed this Original Petition to quash the same. 3.The person who died was no ordinary person. He was the Chief of Defense Staffof IPC. Section 153 of IPC reads as under : “153.Wantonly giving provocation with intent to cause riot—if rioting be committed—if not committed.—Whoever malignantly or wantonly by doing anything which is illegal gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed shall if the offence of rioting be committed in consequence of such provocation be punished with imprisonment of either description for a term which may extend to one year or with fine or with both and if the offence of rioting be not committed with imprisonment of either description for a term which may extend to six months or with fine or with both.”This provision came to be considered in Aroon Purie vs. H.L.Varma2 MLJ 767 it was held that the gravamen of the offence under Section 504 of IPC lies in the utterer provoking the victim by his words to commit an immediate breach of the peace. That can only occur if he utters the words in the presence of the victim or has them conveyed to him by letter or messenger. When the accused uttered the abuse in the absence of the complainant he cannot be convicted under Section 504 of IPC unless he asked his hearers to convey it to the complainant. In Vasireddi Sivalinga Prasad Vs. EmperorMWN31 where the accused abused the Zamindarini and her agents in the course of his speech on the inam legislation but neither the zamindarini nor her agents were present at the meeting the accused cannot be convicted under Section 504 of IPC. In S.Gopal Vs. State 60) it was held that the only two points necessary or that the person insulted must be present and such insult must give provocation to the person so insulted then or soon after to commit a breach of peace. Thus as per the aforesaid decisions in order to attract the offence of Section 504 IPC the accused must intentionally communicate an abuse or insult directly to the victim. In this case the petitioner had posted the offending text in his Face Book page. The contents of one s Face Book page are primarily meant for one s “Face Book friends” though any one can access the same. Even the defacto complainant must have seen it only by chance or some body must have drawn his attention to it. Though the 6 10 https: www.mhc.tn.gov.in judis post was made on 08.12.2021 the complaint was lodged on 15.12.2021. Section 504 of IPC is intended to cover only one to one interactions and not a case of this nature. 7.Section 505(2) of IPC is as follows: 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.The petitioner s post does not involve two groups at all. There is no reference to religion race place of birth residence language caste or community. It has been held that unless one group is sought to be pitted against the other on the aforementioned grounds the penal provision is not attracted. 7 10 https: www.mhc.tn.gov.in judis 8.Looked at from any angle the essential ingredients constituting the offences of Sections 153 504 and 505(2) of IPC are absent in this case. The impugned FIR is not maintainable. It is quashed. The criminal original petition is allowed. 9.I want the petitioner to read the final Chapter of Mahabharata. All the characters are dead. Yudhishthira is the last to go. When he entered the heaven he was shocked to see Duryodhana seated happily. Filled with rage he uttered harsh words. Narada smilingly told him “It should not be so Yudhishthira!. While residing in Heaven all enmities cease. Do not say so about king Duryodhana”. I do not know the petitioner s ideological background. I guess that he must be allergic to the national epic. I therefore have a quotation for him from Thirukkural. “gifvd Dk gz gp yjid xUtd eifNaAk Ntz lw ghw W md W.” mjpfhuk 88. Fws 871. ”The evil of hatred is not of a nature to be desired by one even in sport.”While the petitioner is entitled to criticise the legacy of the late General the way he has reacted to the General s death is not in consonance with Tamil Culture. I have nothing more to say. 21.01.2022 Index : Yes NoInternet : Yes Noskm8 10 https: www.mhc.tn.gov.in judis 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.To1.The Inspector of Police Cyber Crime Police Station Nagercoil.2.The Additional Public Prosecutor Madurai Bench of Madras High Court Madurai. 9 10 https: www.mhc.tn.gov.in judis G.R.SWAMINATHAN J.skm Crl.O.P.(MD)No.1022andCrl MP(MD)No.72221.01.202210 10 

Summary: “Who ? What ? and Where?” test which is employed to determine whether the words amount to a hate speech or not can be invoked in the context of Section 153 of IPC also. The petitioner had only posted the text on his Face Book page. They are no doubt defamatory. These were upheld by Madras High Court through the learned bench of Honourable Mr. Justice G.R. Swaminathan in the case of G.Sivarajaboopathi v. State, rep.by The Inspector of Police &amp; Dharmaraj (Crl MP(MD)No.78 of 2022). The petitioner’s act raised the hackles of the defacto complainant who brought it to the notice of the Inspector of Police, Cyber Crime Police Station, Nagercoil. Crime No.32 of 2021 was registered against the petitioner and another for the offences under Sections 153, 505(2) and 504 of IPC on 15.12.2021. The petitioner has filed this Original Petition to quash the same. The person who died was no ordinary person. He was the Chief of Defense Staff (CDS). The circumstances in which he died were extremely tragic. It was nothing short of a national calamity. The conduct of the petitioner would certainly outrage the moral sense of most persons. But the issue on hand must be adjudicated on the basis of an objective criteria. The only question that I should pose to myself is whether the act committed by the petitioner amounts to a cognizable offence. If the answer is in the negative, then the impugned FIR has to be quashed. The honorable court also took the reference of Muniswami Naicker Vs. (1949) 2 MLJ 767, it was held that the gravamen of the offence under
Section 504 of IPC lies in the utterer provoking the victim by his words to
commit an immediate breach of the peace. That can only occur if he utters the words in the presence of the victim or has them conveyed to him by letter or messenger. When the accused uttered the abuse in the absence of the complainant, he cannot be convicted under Section 504 of IPC unless he asked his hearers to convey it to the complainant.    The bench of Honourable Mr. Justice G.R. Swaminathan in this case concluded that the petitioner’s post does not involve two groups at all. There is no reference to religion, race, place of birth, residence, language, caste or community. It has been held that unless one group is sought to be pitted against the other on the aforementioned grounds, the penal provision is not attracted. Looked at from any angle, the essential ingredients constituting the offences of Sections 153, 504 and 505(2) of IPC are absent in this case. The impugned FIR is not maintainable. It is quashed. The criminal original petition is allowed.