Article 19 (1) (a) of the Indian Constitution establishes the correlative right to be funny. – Madras High Court

1 Crl OP(MD)No.183321BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 17.12.2021CORAMTHE HONOURABLE MR.JUSTICE G.R.SWAMINATHANCrl OP(MD)No.183321andCrl MP(MD)No.100621Mathivanan ... Petitionervs.1.The Inspector of Police Vadipatty Police Station Madurai District. in Article 51 A. Article 51 A states that it shall be the duty of every citizen of India “(a)to abide by the Constitution and respect its ideals and institutions the National Flag and the National Anthem (a) of the Constitution of Indiais now an over ground organization which contests elections also. Paper warriors are also entitled to fantasise that they are swadeshi Che Guevaras. 4.On 16.09.2021 the petitioner herein went on a sightseeing pleasure trip with his daughter and son in law to Sirumalai hills. He put out the photographs taken on the occasion in his Facebook page. He gave the caption “Jg ghf fp gapw rpf fhf 4 12 https: www.mhc.tn.gov.in judis 5 Crl OP(MD)No.183321rpWkiy gazk !”and 507 of IPC. They did not stop at that. They arrested the petitioner and produced him before the jurisdictional magistrate for remanding him to custody. Mercifully Mr.M.C.Arun the Judicial Magistrate Vadipatty had the good sense to refuse remand. Bearing in mind the principles laid down in State v. Nakeeran Gopalhe passed a detailed rejection order. I wish other magistrates in the State of Tamil Nadu act likewise. Remand can never be made for the asking. The police and the prosecution will seek remand in every case. It is for the magistrate to satisfy herself that the arrestee deserves to be remanded. Requests for remand must be 5 12 https: www.mhc.tn.gov.in judis 6 Crl OP(MD)No.183321decided on the touchstone of Section 41 of Cr.Pc and Article 21 of the Constitution. Thanks to the judicious conduct so well exhibited by Shri.M.C.Arunthe petitioner escaped incarceration by a whisker. 6.This criminal original petition has been filed to quash the FIR itself. The learned counsel for the petitioner reiterated all the contentions set out in the memorandum of grounds and submitted that the very registration of the impugned FIR is an abuse of legal process. Per contra the learned Additional Public Prosecutor appearing for the respondents submitted that no case for quashing has been made out. 7.I carefully considered the rival contentions and went through the materials on record. For an act to constitute a crime there are four stages i)intention ii)preparation iii)attempt and iv)accomplishment. While penal laws intervene only at the third and fourth stages normally even preparation is made an offence in certain cases. Section 399 of IPC is one such provision. Section 122 IPC is another. Any penal provision has to be strictly construed. Application of the provisions which penalize even 6 12 https: www.mhc.tn.gov.in judis 7 Crl OP(MD)No.183321preparation must meet a higher threshold. 8.Section 122 of IPC is as follows : “122.Collecting arms etc. with intention of waging war against the Government of India. Whoever collects men arms or ammunition or otherwise prepares to wage war with the intention of either waging or being prepared to wage war against theshall be punished withor imprisonment of either description for a term not exceeding ten years of IPC is as follows : “Whoever makes publishes or circulates any statement rumour or report 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 8 12 https: www.mhc.tn.gov.in judis 9 Crl OP(MD)No.183321(c)....shall be punished with imprisonment which may extend toor with fine or with both.” This provision also can be invoked only if the offending act induces or is likely to induce any person to commit an offence against the State or against the public tranquility. In this case the photographs with the aforesaid caption was posted only in the petitioner s Facebook page. Any normal and reasonable person coming across the Facebook post would have laughed it off. 11.Section 507 of IPC is as follows :“507.Criminal intimidation by an anonymous communication.—Whoever commits the offence of criminal intimidation by an anonymous communication or having taken precaution to conceal the name or abode of the person from whom the threat comes shall be punished with imprisonment of either description for a term which may extend to two years in addition to the punishment provided for the offence by the last preceding section.”Invocation of this provision makes me laugh. Section 507 IPC can 9 12 https: www.mhc.tn.gov.in judis 10 Crl OP(MD)No.183321be invoked only if the person sending the communication had concealed his identity. The communication must be anonymous. In this case the petitioner had posted the photographs along with the caption in his Facebook page. He has not concealed his identity. There is nothing anonymous about the act in question. 12.None of the ingredients set out in Section 122 505(1)(b) and Section 507 are present in this case. Section 120 B of IPC cannot be invoked for two reasons. Firstly the petitioner is the sole accused. To constitute the offence of conspiracy there must be a meeting of two or more minds. One cannot conspire with oneself. Secondly conspiracy is hatched to commit an offence mentioned in the Section. When the ingredients of the primary offences have been shown to be non existent the prosecution cannot hang on to Section 120B IPC alone. 13.The very registration of the impugned FIR is absurd and an abuse of legal process. It stands quashed. The criminal original petition is allowed. Connected miscellaneous petition is closed. 10 12 https: www.mhc.tn.gov.in judis 11 Crl OP(MD)No.183321 17.12.2021Index : Yes NoInternet : Yes NoskmNote: 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 Vadipatty Police Station Madurai District. (Crime No.4121)2.The Inspector of Police Cyber Crime Police Station Madurai City.3.The Judicial Magistrate Vadipatty.11 12 https: www.mhc.tn.gov.in judis 12 Crl OP(MD)No.183321G.R.SWAMINATHAN J.skmCrl OP(MD)No.183321andCrl MP(MD)No.10062117.12.202112 12 

Summary: For an act to constitute a crime, there are four stages, i) intention, ii) preparation, iii) attempt and iv) accomplishment. While penal laws intervene only at the third and fourth stages normally, even preparation is made an offence in certain cases. Section 399 of IPC is one such provision. Section 122 IPC is another. Any penal provision must be strictly construed. Application of the provisions which penalize even preparation must meet a higher threshold. These were looked into by the bench of Honourable Mr. Justice G.R. Swaminathan in the case of Mathivanan v. The Inspector of Police &amp; ors (Crl OP(MD)No.18337 of 2021). The crux of the case is the petitioner herein is an important office-bearer of a political party CPI (ML). the petitioner went on a sightseeing pleasure trip with his daughter and son-in-law to Sirumalai hills. He posted photographs taken on the occasion in his Facebook page with caption “Trip to Sirumalai for shooting practice” as a maiden attempt at humour. Vadipatty Police thought the petitioner was preparing to wage war against the State. They registered a case in Crime No.415 of 2021 against the petitioner for the offences under Sections 120B, 122, 505(1)(b) and 507 of IPC and arrested the petitioner and produced him before the jurisdictional magistrate for remanding him to custody. The Judicial Magistrate, Vadipatty, had refused remand, bearing in mind the principles laid down in State v. Nakeeran Gopal (2019 SCC Online Mad 42) and passed a detailed rejection order. This criminal original petition has been filed to quash the FIR itself. The learned counsel for the petitioner reiterated all the contentions set out in the memorandum of grounds and submitted that the very registration of the impugned FIR is an abuse of legal process. Per contra, the learned Additional Public Prosecutor appearing for the respondents submitted that no case for quashing has been made out. The learned bench of Honourable Mr. Justice G.R. Swaminathan observed and stated that “None of the ingredients set out in Section 122, 505(1) (b) and Section 507 are present in this case. Section 120 B of IPC cannot be invoked for two reasons. Firstly, the petitioner is the sole accused. To constitute the offence of conspiracy, there must be a meeting of two or more minds. One cannot conspire with oneself. Secondly, conspiracy is hatched to commit an offence mentioned in the Section. When the ingredients of the primary offences have been shown to be non-existent, the prosecution cannot hang on to Section 120B IPC alone. 13.The very registration of the impugned FIR is absurd and an abuse of legal process. It stands quashed. The criminal original petition is allowed. Connected miscellaneous petition is closed.”