S KHUSBOO Vs. KANNIAMMAL

JUDGEMENT

(1.) CRIES and clamors and voices of condemnation could be heard throughout the State of Tamil Nadu subsequent to the controversial comments of a famed cine celebrity made during her interviews to a famous Magazine and a popular Tamil Daily about premarital sex & Indian Society and Tamil culture and, as the feelings of the members of the commonalty had been outraged, the waves of reflex could swiftly cross even the boundaries of the State. The fuming aura due to sweeping protests and obstinate agitations got eased only when doors of the court were knocked at various districts of Tamil Nadu, of course in North India also at Indore, by filing private complaints against the actress and there derived a positivity that law would take its own course. The present batch of petitions have been preferred to quash the proceedings pending before various courts of Magistrates in the State on the ground that there was illegality on the part of the trial courts in taking cognizance of the offences alleged in the baseless private complaints and subsequently issuing summons against the petitioner. Actually, some of the petitions have been filed before this Court while others before the Madurai Bench and in order to have one touch and give a quietus, all the petitions have been clubbed together and posted before this court for hearing and disposal.

(2.) THOUGH two of the petitions viz., 32595 and 9525 of 2005, have been preferred by the Magazine/India Today, since the issue involved is almost one and the same in all the petitions, they are disposed of by this Common Order.

(3.) LEARNED Senior Counsel for the petitioner/accused at the outset submits that the offences aforementioned are not made out. According to him, prima facie materials made available in the complaints are not sufficient to attract the penal provisions under the IPC and the Act. The petitioner is a famous film actress in several languages and earned good reputation amongst public. She is a married women, has got children and leading a family life. Only due to animosity and jealousy, the complaints have been filed with a view to tarnish her image. India Today conducted a survey on the subject of premarital sex of girls in big cities all over India by interviewing celebrities like the petitioner and when comments were invited from her, she had offered her fair opinion on the issue involved. What she has stated is, sex is not merely a physical relationship but also it is a matter concerning with disposition of mind and desire; Indian society should get reformed thereby virginity should not be expected from a bride at the time of marriage; educated men should not expect that the bride must be virgin and, in that lines, advised that persons having premarital intercourse should adopt proper safety measures to avoid pregnancy and venereal diseases. A fair and unbiased reading of those comments would suggest that there is nothing wrong in giving her own opinion and making comments on the subject matter. Actually, the petitioner had no intention to insult or cause injury to the feelings of any sect or community or to defame their customs, traditions and culture but made her statements only in good faith. That being so, misleading information has been published in Dhina Thanthi, edition dated 24.09.2005, and finding that a distorted version had been given, legal notice was issued to the said Newspaper. He submitted that the statement of the petitioner as published in India Today falls within the parameters of freedom of speech and expression as enshrined in Article 19(1)(a) of the Constitution of India. Certain group of persons misconstrued the statement of the petitioner and, without appreciating the same in a proper perspective, they preferred private complaints before various courts. It is false to allege that such statements issued by the petitioner would amount to defamation or criticising the chastity and virginity of the women in Tamil Nadu as well as the cherished Tamil culture. As a matter of fact, nothing has been stated about the women of Tamil Nadu in particular and the petitioner only referred to the social custom prevailing in Indian Society. Nowhere she has referred either the culture of Tamil ladies or any other specific community or people. The respondents/complainants are not aggrieved persons within the meaning of Section 199(1) Cr.P.C. to maintain private complaints. Though in some of the complaints, it has been mentioned that those complaints had been filed in representative capacity, the procedure adopted being erroneous, the same are not maintainable. The comments made by the petitioner cannot be said to be defamatory against the member of any class or body to which he or she belongs to. Inasmuch as the so-called offensive statement is nothing but a personal opinion and fair comment of the petitioner, her action is protected by more than one exceptions appended to Section 499 IPC. Only for the purpose of harassing the petitioner, with mala fide intention, the private complaints have been filed and the same is an abuse of process of law and ex facie illegal. To prosecute the petitioner under Section 505 IPC., as per Section 196(a) Cr.P.C., sanction must be obtained from the Central or State Government and it could be seen that, in Crl.O.P. No.31394 of 2005, no such sanction has been obtained, therefore, the cognizance taken by the Magistrate is erroneous. By submitting that, as per Section 199 (1) Cr.P.C., no court shall take cognizance of the offence under Sections 499 and 500 IPC unless the complaint is filed by a person aggrieved, learned Senior Counsel argued that the private complaints have been filed by women against whom nothing has been stated in individual capacity, therefore, they have no locus standi to prefer the complaints. Similarly, unless there is intentional insult to provoke breach of peace, offence under Section 504 IPC. will not be made out. In the cases on hand, no allegation has been made in the private complaints to the effect that such statement of the petitioner caused breach of peace. Section 509 IPC. speaks about intending insult to the modesty of a woman through word, gesture or act and the statement made cannot be construed to fit in with the ingredients of the said Section. Likewise, to make out an offence under Section 505 IPC., a person must have issued statements conducing to public mischief with an intention to cause fear or alarm to the public or to any section of the public whereby any person might have been induced to commit an offence against the State or against public tranquility, and in the cases on hand, it can never be said that such mischief has been caused due to the comments made. Section 3 of the Act is applicable only to the publisher. Section 153 IPC. In respect of wantonly giving provocation with intent to cause riot and Section 153-A IPC. dealing with promoting enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to maintenance of harmony, are not attracted in the case of the petitioner. Again, it is submitted that the complainants, most of whom are women, have not stated as to how they were affected by the statement made by the petitioner and nowhere it has been specifically averred that the complaints have been filed on behalf of a group or association. Though it has been bluntly stated that the statement of the petitioner disgraced the women in Tamil Nadu, no substantive material has been produced in that regard. To fortify the contention that offences under Sections 153-A and 505 IPC. are not made out, learned Senior Counsel relied on a decision of the Supreme Court reported in 1997 Crl.L.J. 4091 (Bilal Ahmed Kaloo v. State of Andhra Pradesh) and the relevant portion is extracted below:-