Section 500 of IPC can be prosecuted only in the manner set out in Section 199 of CRPC
दीपक शर्मा (Advocate)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 04.02.2022 Pronounced on : 24.02.2022 CORAM THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN Crl.OP(MD)Nos.20380 & 20387 of 2021 and CRL.MP(MD)Nos.11584 & 11588 of 2021 Rangarajan Narasimhan … Petitioner in both the cases vs.
2. The Sub Inspector of Police, Srirangam Police Station, Srirangam, Trichy – 620 006.
3.The Commissioner, Hindu Religious & Charitable Endowments Department, 119, Uthamar Gandhi Salai, Nungambakkam, Chennai – 600 034.
4. Shri.Venu Srinivasan Ex-Chairman Board of Trustees of Sri Ranganatha Swamy Temple, New No.3, Old No.2,, Adyar Club Gate Road, Chennai – 600 028.
5. Shri.Jayaraman, Ex.Joint Commissioner/Executive Officer of Sri Ranganatha Swamy Temple, No.149, North Chitra Street, Srirangam, Trichy – 620 006. … Respondents in both the cases
Common Prayer: Criminal Original Petitions filed under Section 482 of Cr.PC to call for the records in the First Information Report in Srirangam PS Crime Nos.495 & 552 of 2019 and quash the same. In both cases : –
For Petitioner : Mr.Rangarajan Narasimhan (party in person) For Respondents : Mr.E.Antony Sahaya Prabhakar Additional Public Prosecutor for R1 to R3 Mr.M.Saravanan for R5 COMMON ORDER
Tamil Nadu is a land of temples. They have played a central role
in our culture. However, their current condition leaves a lot to be
desired. Lands endowed for their maintenance have been gobbled up
by private interests. Antique idols have been stolen and smuggled
overseas. The temple staff are paid a pittance. Thousands of temples
are facing utter neglect. Even poojas are not being performed. Much
needs to be done to revive their glory. The way forward is laid down in the magnum-opus of a decision authored by His Lordship Mr.Justice
R.Mahadevan in Periyanambi Narasimha Gopalan Vs. Secretary
to Government, Tourism, Culture and Religious Endowments
Department and Ors in Suo Motu W.P. No. 574 of 2015 etc.
[MANU/TN/4081/2021].
2. There is also one fundamental issue concerning the administration of temples. Should they continue to be under the thumb
of the government? Should not the government professing to be
secular treat all religious institutions on par?. Are not knowledgeable
and committed activists like Shri.T.R.Ramesh justified in arguing that
the government should exercise the same degree and level of control
over temples as are exercised over churches and mosques?. Such
questions and thoughts cross my mind because the petitioner before me is not only a passionate devotee but also an activist. His bonafides are beyond question. But the way he goes about at times can make one feel uncomfortable. He has been training his guns on Shri.Venu
Srinivasan, the fourth respondent herein who was the Chairman of the
Board of Trustees of Sri Ranganatha Swamy Temple, Srirangam.
3.Shri.Venu Srinivasan is a recipient of Padma Bhushan, one of the highest civilian honours. His philanthropic and charitable activities are well known. He has spent his time, money and energy for the restoration of a number of temples. The Hon'ble Vice President of India Shri.M.Venkaiah Naidu while commending the work of renovation and conservation of Sri Ranganathaswamy Temple said thus : “What struck me as remarkable is the tremendous passion that has driven this project - the vision set by the Chairman of the Board, Shri Venu Srinivasan …. And it is not passion alone. It is the spirit of service that lifts this project from the realms of the ordinary to that of the extraordinary….” I feel like telling the petitioner that the level of discourse or debate must always conform to the highest standards of civility. There can be no place for force or violence even in the slightest degree. Of course, I am not here to dish out sermons to the petitioner. I am no Prashant Kishor. The petitioner has not come to me for consultation. He has come seeking adjudication and I better confine my role to that.
4.The petitioner is the accused in Crime Nos.495 & 552 of 2019
on the file of the Srirangam Police Station. Sections 500 and 505(2) of
IPC figure in both the FIRs. Section 45 of the Information Technology Act
has been added to give extra flavour in Crime No.552 of 2019. The
then Executive Officer of the temple is the defacto complainant in both
the cases. According to the defacto complainant, the petitioner has
made highly defamatory allegations against the temple management in the social media; the allegations are not only wild but also calculated to cause alarm in the minds of the devotees.
5.While exercising jurisdiction under Section 482 of Cr.PC, I cannot go into contentious facts. The petitioner alleges that since he is exposing several wrong doings of the temple management, the fourth and fifth respondents have conspired with each other to lodge the impugned FIRs. The contesting respondent contends that there is no iota of truth in any of allegations made by the petitioner and since the petitioner is spreading mischievous rumors and canards, he has to be necessarily prosecuted.
6.After carefully considering the rival contentions, I am satisfied
that the impugned FIRs are not maintainable. If the petitioner had
committed the offence of defamation, registration of an FIR cannot be
the response. Section 199 of Cr.PC contains an embargo. It prescribes
that no court shall take cognizance of all offences punishable underChapter XXI of the IPC except upon a complaint made by some person aggrieved by the offence. An FIR cannot be registered for the offence under Section 500 of IPC
7.The question that next falls for consideration is whether the
ingredients of Section 505(2) of IPC are present. The said provision
reads 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. In Bilal Ahmed Kaloo v. State of A.P (1997 CriLJ 4091), the Hon'ble
Supreme Court held that the common feature in Sections 153A 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
andcommunities, 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 allegations do not involve two groups at all. The
Hon'ble Supreme Court had clearly held that unless one group is pitted
against the other on the aforementioned grounds, the penal provisions
are not at all attracted. The petitioner has not pitted one group against
the other. The petitioner is a Vaishanavite. So is the fourth respondent.
The Srirangam Lord Ranganathaswamy Temple is the most important
Vaishvanite institution and the fifth respondent is its Executive Officer.
Thus, there is no pitting of one group against the other on any of the
grounds set out in the penal provision. Hence, Section 505(2) of IPC will not be attracted as its elementary ingredients are absent.
8.Invocation of Section 45 of the Information Technology Act in
the impugned FIR is also misplaced. The said provision reads as
follows :
“Residuary penalty.-Whoever contravenes any rules or
regulations made under this Act, for the contravention of
which no penalty has been separately provided, shall beliable to pay a
compensation not exceeding twenty-five
thousand rupees to the person affected by such
contravention or a penalty not exceeding twenty-five
thousand rupees.”
The Information Technology Act, 2000 contains as many as XIII
Chapters. Chapter XI deals with offences (Section 65 to 78). Chapter
IX deals with 'penalties, compensation and adjudication'. In an essay
published in (2014) PL December 76 on Frauds and Cyber Frauds
in Banking Sector, it is mentioned that the Information Technology
Act, 2000 has made the banks liable for both criminal and civil action.
In the footnotes, Sections 65 to 74 are referred under the former
category while Section 43 to 45 are referred under the latter category.
The statutory scheme is very clear and admits of no doubt. Section 45
can be invoked for the purpose of recovering compensation under the
circumstances set out in the provision itself. It is not a substantive
offence.
9.When the petitioner was arrested, Thiru.S.Somasundaram who was the jurisdictional magistrate following the guidelines of the Hon'ble Apex Court in Arnesh Kumar vs. State of Bihar (2014) 8 SCC 273, rightly declined to remand the petitioner and set him at liberty. I commend him.
10.In Vinod Dua vs. Union of India (UOI) and Ors. AIR 2021 SC 3239, the Hon'ble Supreme Court clarified that every prosecution under Sections 124 A and 505 IPC must be in strict conformity with the scope and ambit of the Sections as explained in, and completely in tune with the law laid down in Kedar Nath Singh v. State of Bihar (AIR 1962 SC 955). After so holding, the Hon'ble Supreme Court quashed the FIR registered against Shri.Vinod Dua by invoking Article 32 of the Constitution of India.
11.The Hon'ble Supreme Court in State of Haryana v. Bhajan
Lal (1992) Supp (1) SCC 335, laid down seven categories of cases
by way of illustration wherein the constitutional courts would be
justified in invoking the extraordinary power under Article 226 or the
inherent powers under Section 482 of Cr.Pc to quash the criminal
prosecution. They are as under :
“1.Where the allegations made in the First
Information Report or the complaint, even if they are taken
at their face value and accepted in their entirety do not
prima-facie constitute any offence or make out a case
against the accused.
2.Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R.do not disclose
a cognizable offence, justifying an
investigation by police officers Under Section 156(1) of the
Code except under an order of a Magistrate within the
purview of Section 155(2) of the Code.
3.Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support of
the same do not disclose the commission of any offence and
make out a case against the accused.
4.Where, the allegations in the F.I.R. do not constitute
a cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated Under
Section 155(2) of the Code.
5.Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the
accused.
6.Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or where
there is a specific provision in the Code or the concerned
Act, providing efficacious redress for the grievance of the
aggrieved party.
7.Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is maliciouslyinstituted with an
ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and personal grudge.”
In this case, parameters 1, 3 and 6 are applicable. To recapitulate,
Section 500 of IPC can be prosecuted only in the manner set out in
Section 199 of Cr.PC. Therefore, the sixth parameter mentioned above
will come into play. Since the petitioner has not pitted one group against the other on the grounds set out in the provision, the
ingredients of Section 505(2) of IPC are also absent. Hence, the first
and third parameters mentioned above can be pressed into service in
favour of the petitioner. Section 45 of the Information Technology Act,
2000 provides only a civil remedy and is not a penal provision. Looked
at from any angle, the impugned FIRs are not maintainable. Allowing
the prosecution to continue would only be an abuse of legal process.
The impugned FIRs are quashed. The criminal original petitions are
allowed. Connected miscellaneous petitions are closed.
24.02.2022 Index : Yes / No Internet : Yes/ No skm
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.
