This Judgment has been overruled by : S. Khushboo Vs. Kanniammal and Another, AIR 2010 SC 3196 : (2010) CriLJ 2828 : (2010)
2 Crimes 414 : (2010) 5 JT 478 : (2010) 4 SCALE 462 : (2010) 5 SCC 600
@JUDGMENTTAG-ORDER
R. Regupathi, J.@mdashCries 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. First, it would be apropos to delve into the factual backdrop which ultimately led to filing of private complaints before various Subordinate
Courts as against the actress as well as the Magazine.
The petitioner, who is a popular cine actress and television game show host, was interviewed by India Today Magazine, which surveyed
celebrities'' views on pre-marital sex and, in the news item appeared in the Tamil Publication of the said Magazine with cover-story titled ''chastity
getting obsolete'', her statement made during the interview appeared and from the contents, it is seen that the petitioner proceeded to state that it
could be seen that the girls at Chennai are crossing the psychological barriers regarding sex as they come to be viewed at pubs and discotheques;
that in the Indian Society stuffed with conservative taboos, unlike early days, women have now started to flap their wings; that sex education
should be given at school level and if not, parents of the children should take efforts to teach them the basics of sex; that when a girl is serious
about her relationship with a male friend, her parents should allow such relationship; that the community should be liberated from the perception
that at the time of marriage, the bride should be with virginity; and that no educated male would expect that his helpmate would be with virginity,
however, while indulging in pre-marital sex, one must be careful that it should not result in pregnancy and venereal diseases.
Such polemical comments made by the petitioner received wide condemnation from several organizations alleging that by making such comments,
she opened the floodgates of cultural degradation, whereupon, she was interviewed by a reporter of a Tamil Daily ''Dhina Thanthi'' regarding her
earlier comments/statement made to India Today on premarital sex. Such interview to Dhiana Thanthi was published in its edition dated
24.09.2005. By raising a question that those who criticise her statement belong to which culture, she ventured to ask, is there anybody in Tamil
Nadu who does not know about sex and aids and how many men and women are there who did not indulge in pre-marital sex.
Subsequent to those comments, the already ignited sparks turned to robust flames and the same also left open to a fresh debate over the gap
between public morality and private attitudes towards sex. Even the State had to direct the Director General of Police to draw up a strategy to
prevent the protests growing violent. In such circumstances, some members of the public, most of whom are women, have chosen to approach the
court on the ground that they were markedly offended by the objectionable and controversial remarks made against the Indian society in general
and Tamil Culture and women in particular. In nutshell, the allegations made in the private complaints are that, because of the ignominious
comments of the petitioner made during her interviews, one could easily draw an inference that virginity should not be expected from the women in
Tamil Nadu meaning thereby, they have no chastity; that, not only the complainants but their family members as well as the entire community were
greatly offended and the complainants in particular were subjected to great mental agony as their self-respect and dignity were questioned, as a
result, they lost peace of mind; that the interviews would serve as unfair means to look at the Tamil Women with a contemptuous eye; and that
Tamil Nadu is a place where Kannagi, the symbol of chastity, is greatly honoured and where modesty is considered more than a woman''s life; that
being so, the slanderous and blasphemous comments made by the petitioner, insulting the community as a whole as also the Indian societal set-up
based on pristine principles, attract penal provisions of the Indian Penal Code and the special enactment viz., The Indecent Representation of
Women (Prohibition) Act, 1986 (in short ''Act'').
The learned Magistrates, after going into the allegations made in the private complaints and the supportive materials produced, have taken
cognizance of the offences alleged and consequently, issued summons against the petitioner; hence, the present petitions to quash those
proceedings.
4. Before this Court could proceed further to examine the rival contentions projected by the counsels appearing on either side, it is necessary to set
out briefly the relevant provisions of the Indian Penal Code and the Act under which the learned Magistrates have taken cognizance on the private
complaints as the same would have a bearing on the controversy involved.
Sl. No. Offences taken Ingredients
cognizance by the
trial courts
1 120-B IPC Punishment of Criminal Conspiracy
2 153 IPC Wantonly giving provocation with intent to cause
riot.
3 153-A IPC Promoting enmity between different groups on grounds
of religion, race, place of birth, residence,
language etc. and doing acts prejudicial to
maintenance of harmony
4 292 IPC Sale, etc., of obscene materials
5 292-A IPC Printing etc. of grossly indecent or scurrilous
matter or matter intended for Blackmail.
6 293 IPC Sale etc. of obscene objects to young person
7 499 IPC Defamation
8 500 IPC Punishment for defamation
9 504 IPC Intentional insult with intent to provoke breach of
the peace
10 505(1)(b) IPC Statements conducing to public mischief
11 509 IPC Word, gesture or act intended to insult the modesty
of a woman
12 Section 4 Prohibition of publication or sending by post of
of the Act bo1oks, pamphlets etc., containing indecent
representation of women
13 Section 6 Deals with penalty
Statement of objects and Reasons'' as found in the Act may be highlighted here:
The law relating to obscenity in this country is codified in Sections 292, 293 and 294 of the Indian Penal Code. In Spite of these provisions, there
is growing body of indecent representation of women or references to women in publications, particularly advertisements, etc. which have the
effect of denigrating women and are derogatory to women. Though there may be no specific intention, these advertisements, publications, etc. have
the effect of depraving or corruptive persons. It is therefore, felt necessary to have a separate legislation to effectively prohibit the indecent
representation of women through advertisements, books, pamphlets etc.
Salient features:
(a) Indecent representation of women has been defined to mean the depiction in any manner of the figure of a woman, her form or body or any
part thereof in such a way as to have the effect of being indecent or derogatory to, or denigrating, women or is likely to deprave, corrupt or injure
the public morality or morals.
(b) It is proposed to prohibit all advertisements, publications, etc. which contain indecent representation of women in any form.
(c) It has also been proposed to prohibit selling, distribution, circulation of any books, pamphlets, etc. containing indecent representation of
women.
(d) Offences under the Act are made punishable with imprisonment of either description for a term extending to two years and fine extending to
two thousand rupees on first conviction. Second and subsequent convictions will attract a higher punishment.
5. 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 u/s 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 u/s 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 u/s 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 Bilal Ahmed Kaloo Vs. State of Andhra Pradesh, and the relevant portion is extracted below:
15. The common feature in both Sections being promotion of feeling of enmity, hatred or ill-will ""between different"" religious or castes and
communities it is necessary that at least two such groups or communities should be involved. 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.
To substantiate the point that the complainants are not actually the persons aggrieved, the decision reported in G. Narasimhan, G. Kasturi and K.
Gopalan Ors. Vs. T.V. Chokkappa, has been relied on, wherein, it was held that Section 199 Cr.P.C. being mandatory, if a Magistrate were to
take cognizance of the offence of defamation on a complaint filed by one who is not an aggrieved person, the trial and conviction would be void
and illegal.
In respect of the offence alleged u/s 509 IPC., the decision reported in 1925 Sind 271 (Khair Mahomed v. Emperor) has been pressed into
service and the ratio laid down therein is to the effect that, in order to constitute an offence u/s 509 IPC., there must be some individual woman or
women whose modesty has been outraged and though it is not necessary that individual woman should herself make a complaint, there must be an
allegation that the action complained of, has insulted the modesty of some particular woman or women and not merely of any class or order or
section of women, however, small.
The case law reported in Vishwa Nath Vs. Shambhu Nath Pandeya deceased by L.R. and Another, has also been relied on wherein it is observed
that Section 199 Cr.P.C. contains mandatory provision for the court not to take cognizance of an offence except upon a complaint made by some
person aggrieved by the offence and that where in a article of a magazine imputations were made against a certain community in general and not
any particular group and nor were the said imputations related to the complainant and the said community was also not found to be a definite,
identifiable body of people, continuance of the case after the death of complainant under the representation of his advocate would not be proper.
In support of the contention that only an aggrieved person can move the court, he placed much reliance on the rulings reported in Narottamdas L.
Shah Vs. Patel Maganbhai Revabhai and Another, , K.M. Mathew and Others Vs. T.V. Balan, and Sasikumar B. Menon Vs. S. Vijayan and
Another, .
Ultimately, by stating that the petitioner is a law abiding citizen hailing from a respectable family and that the allegations are baseless, it is pleaded
that the Criminal Original Petitions may be ordered quashing the criminal proceedings pending against the petitioner before various subordinate
courts in the State.
6. Per contra, learned Counsels for the respondents submitted that prima facie materials are available to constitute the offences alleged and
therefore the relief sought for by the petitioner to quash the proceedings be negatived. They elaborated the submissions by stating that the
petitioner, being a famous cine actress in Tamil Nadu, should have exercised restraint while issuing statements to a publication. The irresponsible
statements made and the message conveyed thereby had the effect of corrupting the minds of the younger generation. Though it has been stated
that publication of defamatory imputation in Dhina Thanthi has been questioned by the petitioner through legal notice, no further follow-up action
has been taken and unfortunately, the contention of the petitioner is that such statement has been issued in good faith. Residing permanently in
Tamil Nadu and knowing well that her statement being given to the Tamil Edition of the Magazine would reach one and all in Tamil Nadu, she was
very well aware that it would mean the people of Tamil Nadu in general. After eruption of agitations in Tamil Nadu against the petitioner, she made
the comments against Tamil Culture and chastity of Tamil women on being interviewed by a reporter of Dhina Thanthi, therefore, it is very much
clear that the imputations are meant only against the people of Tamil Nadu. Though the petitioner has taken shelter under Article 19(1)(a) of the
Constitution of India stating that the statement made by her is not conclusive and it falls within the parameters of freedom of speech and expression,
the opinion and comments made by her will not fit in with such constitutional guarantee. Even if she has stated so in general terms, it is a derogatory
statement and propagation of immorality and indecency in social and family life. At any rate, the entire women in Tamil Nadu have been offended
by the statements resulting in ever-widening agitations throughout the State and clash between groups, thereby internal peace of the State was put
to peril. Of course, she may express her personal opinion and experience about premarital sex but she is not supposed to propagate or preach her
lewd ideology to the society. When scientists, academicians, scholars and experts are making efforts to present the subject of sexology to the
commoners in a way that it would be rightly understood and ethically acted upon so that moral degradation would be avoided, through her
comments, on the one hand she passed on a wrong message to the youngsters and on the other hand injured the feelings of the Tamil community in
particular and criticised the Indian societal set-up in general. Each and every complainant herein representing the public is an aggrieved person and,
from a careful reading of the provisions of the Code, it is apparent that Section 199(1) Cr.P.C. is not attracted and that in the light of Section
199(6) Cr.P.C., the complainants have got every right to lodge a complaint before the competent court of law. On the question of locus standi, the
Supreme Court in Sunil Batra''s case (1980 SCC (Cri) 777, followed by umpteen number of cases, has categorically observed that such aggrieved
persons may set the law in motion in the larger interests of the society. Some of the complainants in these batch of cases are unmarried women,
practising advocates and involved in public life and further in their representative capacity to represent Tamil and Indian culture, they have filed
such complaints and on the ground of locus standi, the complaints cannot be rejected. Considerable damage and great mental agony had been
caused and the impact of her statements could be felt by one and all in the State and that being so, the extent of damage and injury could be
assessed only during the course of trial. Apart from the complaint, other substantive materials are yet to be produced before the learned
Magistrate. The defence put forth by the petitioner, at best, may have to be projected before the trial court while adjudicating upon the issues.
Learned Counsels for the respondents in support of their contentions relied on certain decisions and relevant portions thereof are quoted below.
A. Ranjit D. Udeshi Vs. State of Maharashtra, - extract from Head Note (b),
The cherished rights of freedom of speech or expression on which our democracy rests is meant for the expression of free opinions to change
political or social conditions or for the advancement of human knowledge. This freedom is subject to reasonable restrictions which may be thought
necessary in the interest of the general public and one such is the interest of public decency and morality. Section 292 Penal Code manifestly
embodies such a restriction because the law against obscenity, of course, correctly understood and applied, seeks no more than to promote public
decency and morality. The word obscenity is really not vague because it is a word which is well understood even if person differ in their attitude to
what is obscene and what is not.
B. Sewakram Sobhani Vs. R.K. Karanjia Chief Editor, Weekly Blitz and Others, - extract from Head Note (B):
Journalists do not enjoy any special privilege, and have no greater freedom than others to make any imputations or allegations, sufficient to ruin the
reputation of a citizen. Journalists are in no better position than any other person. Even the truth of an allegation does not permit a justification
under First Exception unless it is proved to be in the public good. The question whether or not it was for public good is a question of fact like any
other relevant fact in issue. If they make assertions of facts as opposed to comments on them, they must either justify these assertions or, in the
limited cases specified in the Ninth Exception, show that the attack on the character of another was for the public good, or that it was made in
good faith....
It was also observed therein that the questions of ""good faith"" and ""public good"" etc. are questions of facts to be decided after the regular trial is
held and should not have been answered at the stage when even the accused was not examined.
C. Dr. D.C. Saxena, Contemnor Vs. Hon''ble the Chief Justice of India, :
13. Freedom of speech and expression, therefore, would be subject to Article 19(2), 129 and 215 of the Constitution, in relation to contempt of
court, defamation or incitement to an offence etc. Article 3 read with Article 19 of the Universal Declaration of Human Rights grants to everyone
liberty and right to freedom of opinion and expression. Article 19 of the International Covenant on Civil and Political Rights, 1966 to which India is
a signatory and had ratified, provides that everyone shall have the right to freedom of expression, to receive and impart information and ideas of all
kinds but Clause (3) thereof imposes corresponding duty on the exercise of the right and responsibilities. It may, therefore, be subject to certain
restrictions but these shall only be such as are provided by law and are necessary for the respect of life and reputations of others for the protection
of national security or public order or of public health or moral. It would thus be seen that liberty of speech and expression guaranteed by Article
19(1)(a) brings within its ambit, the corresponding duty and responsibility and puts limitations on the exercise of that liberty.
D. In Re: Harijai Singh and Another; In Re: Vijay Kumar, , at page 472:
9. It is thus needless to emphasise that a free and healthy press is indispensable to the functioning of a true democracy. In a democratic set-up,
there has to be an active and intelligent participation of the people in all spheres and affairs of their community as well as the State. It is their right to
be kept informed about current political, social, economic and cultural life as well as the burning topics and important issues of the day in order to
enable them to consider and form broad opinion about the same and the way in which they are being managed, tackled and administered by the
Government and its functionaries. To achieve this objective the people need a clear and truthful account of events, so that they may form their own
opinion and offer their own comments and viewpoints on such matters and issues and select their further course of action. The primary function,
therefore, of the press is to provide comprehensive and objective information of all aspects of the country''s political, social, economic and cultural
life. It has an educative and mobilising role to play. It plays an important role in moulding public opinion and can be an instrument of social change.
It may be pointed out here that Mahatma Gandhi in his autobiography has stated that one of the objectives of the newspaper is to understand the
proper feelings of the people and give expression to it; another is to arouse among the people certain desirable sentiments; and the third is to
fearlessly express popular defects. It, therefore, turns out that the press should have the right to present anything which it thinks fit for publication.
10. But it has to be remembered that this freedom of press is not absolute, unlimited and unfettered at all times and in all circumstances as giving an
unrestricted freedom of speech and expression would amount to an uncontrolled licence....
7. It would be appropriate to deal with the legal issues first and thereafter the contentions projected on either side and the other vital aspects
involved.
8. Since the auxiliary questions relating to all other offences would arise for consideration only if the court comes to a definite conclusion on the
main question as to whether the allegation of defamation is prima facie made out, it is sufficient to restrict the discussion with the said aspect viz.,
whether, prima facie, the plea of defamation is available to the complainants in order to reject the prayer of the petitioner before this Court and
consequently, allow the proceedings continue before the trial courts.
9. Section 499 IPC relating to defamation reads as follows:
499. Defamation- Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any
imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such
person, is said, except in the cases hereinafter expected, of defame that person.
Explanation 1-It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if
living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2-It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3-An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4-No imputation is said to harm a person''s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers
the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit
of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.
The basic idea of defamation law is simple and clear. It is an attempt to balance the private right to protect one''s reputation with the public right to
freedom of speech. Anything that injures a person''s reputation can be defamatory. If a comment brings a person into contempt, disrepute or
ridicule, it is likely to be defamatory. Such defamation may be by words, either spoken or intended to be read, or by signs or visible
representation. Whether a statement is defamatory involves determining what the statement means or ""imputes"", and then assessing whether that
meaning or imputation materially injured the reputation of the complainant having regard to the truth of the allegations. What the petitioner intended
her words to convey is generally irrelevant; rather, courts would apply the meaning that the ordinary and reasonable person would draw from the
material, and pose themselves the questions viz., is the statement true, does it matter if it is true, how will readers interpret it, and what was the
mens rea of the person who made it. It must be noticed that the essence of the offence of defamation consists in its tendency to cause that
description of pain which is felt by a person who knows himself to be the object of the unfavourable sentiments of his fellow beings and those
inconveniences to which a person who is the object of such unfavourable sentiments is exposed. While keeping the said aspect in mind, courts
should be very slow to draw an adverse inference against the accused and, in order to come to correct conclusion, it is necessary to make a
general assessment whether the statement made is offensive or indecent in the sense that it outraged public decency, and whether it offended
community standards of decency in the circumstances and in the manner in which it was presented.
10. Admittedly, the petitioner herein is a cine actress, who gained popularity in Tamil Nadu to such a level that her fans went to the extreme extent
of constructing a temple for her. She is not an academician or a researcher in sexology to preach the subject in the fashion understood by her. It
seems that she had studied only upto VIII Standard. Apart from the field of cinema, she does not have any expertise or scholarly knowledge in the
area of sociology or sexology. She is neither a member of any social or women organization fighting for the cause of women or their upliftment nor
involved in public life. Thus, she cannot be categorised as an expert in sexology or any connected branch of that subject. In such circumstances,
the comments made at the interview to India Today on the subject of premarital sex have to be assessed. While expressing her individual opinion,
she has stated that, in the Indian Society stuffed with conservative taboos, woman is gradually flapping her wings; that the society should get
liberated from the thinking that women should not lose their virginity till marriage and that educated persons should not expect their life partners to
be with virginity at the time of marriage. She even went ahead to state that if a girl is very serious about her relationship with her opposite sex, the
parents should allow such relationship and that, while indulging in premarital sex, care should be taken to avoid pregnancy and venereal diseases.
Had the petitioner stated that she as a parent and member of a family would introduce and teach such lifestyle amongst her family members, then it
is her personal opinion. But, the problem arose when she addressed the society at large to bring up the children in a fashion heralded and
suggested by her in the name of liberation of women and not to care about being virgin, and further stated that a groom should not expect his
prospective bride to be with virginity. Not stopping therewith, after publication of her statement in India Today, when a clarification was sought for
by a reporter of Dhina Thanthi stating that such statement would lead to cultural degradation, the petitioner questioned as to which culture they are
referring to and asked as to how many men and women are in Tamil Nadu who did not indulge in pre-marital sex. She was proud enough to say
that she used to be transparent and open in her speech and she does not bother about those who do not understand her comments. Though it is
stated that she has not given any such reply or clarification and that a legal notice was issued to the Newspaper, it seems that no further action has
been pursued thereafter. It must be pointed out that the comments made at the first instance would have gone vanished in course of time if the
petitioner withdrew her statement by showing immediate reaction having regard to the intensity of the situation. Learned Senior Counsel again
pointed out that a legal notice was issued to the Daily to publish her objections immediately and to make it clear that she did not actually mean
what has been widely understood; therefore, it is repeated that the matter was not pursued further and that it is a disputed area where this Court
does not desire to enter into. If she was so much serious, she could have very well called for a press meet and clarified her position.
11. It is well accepted in a democratic society that individuals have a right to express their own views and preferences. Would it be taken to mean
that such freedom is free from restriction and limitation. The answer is, an emphatic ''no''. Freedom of speech is important but not absolute. Under
the exercise of freedom of movement, if one would walk on the middle of the road, the freedom granted to vehicle owners would take away
his/her life. Therefore, the rights and freedom given to a citizen must be exercised within its reasonable restriction and the same should not invade
the rights of others. Viewing in that perspective, this Court is unable to appreciate the plea projected by the learned Counsel for the petitioner
referring to Article 19(1)(a) of the Constitution. Admittedly, the first comments made in the Magazine have not been denied and the comments
made on the second occasion by way of reply to the Tamil Daily are disputed. On the grounds of locus standi and referring to the exceptions
appended to Section 499, viz.,
i) It is not defamation to impute anything which is true concerning any person, if it is for public good that the imputation should be made or
published.
ii) It is not defamation to express in good faith any opinion whatever regarding the conduct or character of a public servant in discharge of his
public function.
iii) It is not defamation to express in good faith any opinion regarding the conduct or character of any person touching any public question.
iv) It is not defamation to publish a substantially true report or result of a Court of Justice of any such proceedings.
v) It is not defamation to express in good faith any opinion regarding the merits of any case, which has been decided by a Court of Justice, or the
conduct of any person as a party, or the witness or the agent, in such case.
vi) It is not defamation to express in good faith any opinion regarding the merits of any performance which an author has submitted to the Judgment
of the public.
vii) It is not defamation if a person having any authority over another person, either conferred by law or arising out of a lawful contract, to pass in
good faith any censure on the conduct of that other in matters to which such lawful authority relates.
viii) It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with
respect to the subject matter of accusation.
ix) It is not defamation to make an imputation on the character of another person, provided it is made in good faith by person for protection of his
or other''s interests.
x) It is not defamation to convey a caution, intended for the good of a person to whom conveyed or for public good,
it is submitted that inasmuch the act of the petitioner is protected by some of the aforesaid exceptions, taking cognizance of the offences by the
courts below against the petitioner should be held to be illegal. In general, the available defences are, justification, contextual truth, absolute
privilege, publication of public documents, fair report of proceedings of public concern, qualified privilege for provision of certain information,
honest opinion, innocent dissemination and triviality. As observed earlier, if really the petitioner had acted in good faith, she would have taken
immediate steps either by withdrawing the statement made or refuting the allegation by convening a press meet or by further pursuing the legal
action against the Daily after issuance of legal notice. Further, the petitioner did not come out with specific defence of good faith, pointing out the
circumstances in which her case could be brought under any of the exceptions appended to the penal provisions. Having not done so, the
contentions now made after commencement of the proceedings would in no way advance the case of the petitioner. In order to establish good faith
and bona fide it has to be seen first the circumstances under which the statement was made; secondly, whether there was any malice; thirdly,
whether the accused made any enquiry before he/she made the allegations; fourthly, whether there are reasons to accept the version that he/she
acted with care and caution and finally whether there is preponderance of probability that the accused acted in good faith. Whether such
circumstances have been established is again a question of fact. This Court, at this stage while exercising its jurisdiction u/s 482 Cr.P.C., cannot
traverse into the same and at best, such elements to be examined on facts must be left to the decision of the trial court. Section 482 does not
confer any new power on the High Court. It only saves the inherent power which Court possessed before the enactment of the Code. It envisages
three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent
abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule
which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may
possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions
and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent
powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution,
all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle ''quando lex aliquid
alicui concedit, concedere videtur et id sine quo res ipsae esse non potest'' (when the law gives a person anything, it gives him that without which it
cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under
the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically
laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts
exist. In the case on hand, in order to do substantial justice, it is but proper to allow the proceedings to continue.
12. Coming to the question as to whether the respondents/complainants would come under the purview of ''persons affected'', it must be made
clear that, in the light of the various aspects adverted above, everyone who claims to be affected by the statements of the petitioner is deemed to
be an aggrieved person and in what manner they are aggrieved is purely a question of fact which must be decided during the course of trial. It is
pertinent here to refer to the ruling of the Apex Court in Shatrughna Prasad Sinha Vs. Rajbhau Surajmal Rathi and Others, , at page 267, wherein,
while allowing the appeal in part, it was held thus:
13. .... on a reading of the complaint we do not think that we will be justified at this stage to quash that complaint. It is not the province of this
Court to appreciate at this stage the evidence or scope of and meaning of the statement. Certain allegations came to be made but whether these
allegations do constitute defamation of the Marwari community as a business class and whether the appellant had intention to cite as an instance of
general feeling among the community and whether the context in which the said statement came to be made, as is sought to be argued by the
learned Senior Counsel for the appellant, are all matters to be considered by the learned Magistrate at a later stage. At this stage, we cannot
embark upon weighing the evidence and come to any conclusion to hold, whether or not the allegations made in the complaint constitute an offence
punishable u/s 500. It is the settled legal position that a court has to read the complaint as a whole and find out whether allegations disclosed
constitute an offence u/s 499 triable by the Magistrate. The Magistrate prima facie came to the conclusion that the allegations might come within the
definition of ''defamation'' u/s 499 IPC and could be taken cognizance of. But these are the facts to be established at the trial. The case set up by
the appellant are either defences open to be taken or other steps of framing a charge at the trial at whatever stage known to law. Prima facie we
think that at this stage it is not a case warranting quashing of the complaint filed in the Court of Judicial Magistrate, Ist Class at Nasik. To that
extent, the High Court was right in refusing to quash the complaint u/s 500 IPC.
When citizens affected by the derogatory remarks against Indian Society and Tamil Culture complain the same as a member of Indian Society
stating that they are greatly offended, such complaints cannot be so lightly brushed aside. I find, prima facie, materials are available to constitute not
only the offences committed but also to substantiate that the complainants are ''aggrieved persons''. The law is well settled that even an individual
composing a group can file a complaint even if he/she is not mentioned by name if he/she is aggrieved but the group must be determinate and
identifiable body.
In the light of the peculiar facts of the case, this Court is of the considered opinion that prima facie offence u/s 499 IPC. is made out and that the
complainants are aggrieved persons in the eye of law to set the law in motion.
13. Pausing here, urged with a sense of social concern, this Court deems it essential to comment upon certain vital aspects having relevancy to the
issue involved.
One of the important aspects of sexual ethics concerns the emotion of love. Ever since the ancient times, the essence of sex has been given special
attention in philosophy. Sex has been commonly acknowledged as a wholesome reality and mostly in our literature, we find that sex has been
extolled not only in terms of its Divine connotation, but even in its down-to-earth human emotional context. In either case, there has been no
confusion of sex with any kind of lust.
In this country, though cultural heritage, customs, usage, languages etc. differ from State to State, insofar sex is concerned, throughout the country,
certain conservative ideas are adopted all these days. Chastity is considered here to be a lifestyle that brings freedom, respect, peace, and even
romance '' without regret and it liberates a couple from the selfish attitudes of using each other as objects, and makes them capable of their love.
No one questions his would-be whether she is a virgin or not, because, everyone faithfully believes and has a good point of view about his bride or
her bridegroom as the case may be that she or he would be chaste and modest. In India, chastity and love are explicitly regulated, that is why,
women are assigned an elevated position in society and they are ordinarily not approachable by men except through legal means viz., marriage. In
the other situation, where love and chastity are implicitly promoted; but not regulated, one could witness, women''s position is subject to the utter
tedium of placing themselves at the disposal and protection of their men. One may wonder as to which one of these two sets of conditions are apt
to enhance love and chastity. Incidentally, it is notable that the so called open or permissive societies, blindly lauded by the petitioner, are ipso
facto incapable of promoting conditions for any deep and intense love relationships. Their conditions lead to waywardness and wantonness, in the
process of seeking transient affairs, if not while indulging in momentary and lustful pleasures.
It is aptly said, Sex takes the least amount of time, but causes the most amount of trouble, underlining the real and uncompromising risks of sexual
expression when done in any setting outside the bounds of marriage. Sex, in its proper season, is one of the most beautiful expressions that two
people can share. For it to truly reach its greatest potential, there are rules and guidelines to help the people accept the great responsibilities that
come with the single greatest power, the ability to create a new life.
No doubt, sex has been eulogised in many ways, both in the West and India. Yet, there has come to be a difference between the Indian and
Western conceptualisation of sex. Unlike Indian Society, in the west in particular, sexual relationships are generally viewed as the private
preference of each individual as perceived by the petitioner. No one has the right to determine with whom, or how one conducts one''s sex life.
What occurs between consenting adults, no matter what sex or how many, is usually condoned. Premarital sex is considered quite acceptable,
normal, well within the bounds of morality, and indeed desirable. Dating begins at a very young age and every socially well-adjusted youngster is
expected to have several girlfriends and boyfriends by a certain age. Use of condoms by school going children has become a common
phenomenon there. Thus, those who grow up in the West are weaned on sex in both subtle and not so subtle ways. That is why, to many
Westerners, sex can be worthwhile as long as it embodies the sweetness mutually attainable by lovers. Individuals of opposite sex there prefer the
desirability and enjoyability of living together in mutual love and comfort to the constant annoyance and boredom of living as singles. They aim at
maximising enjoyment of life. In quite contrast thereto, in Indian society, sex is regarded as something inexorably desirable in itself only through
marriage and one would pray while entering conjugal life that the marital relationship should continue even after death in the world of souls. If such
social set-up strengthened by moral and ethical ideology is criticised, it would result in adverse impact both emotional and consequential.
The purpose of highlighting the above aspects is that to-day, courts are flooded with stream of criminal cases involving sexual offences. In an era of
wide open attitudes about sexuality and at a time when teenagers are flooded with conflicting messages about their own sexuality, if such
statements are made under the garb of freedom of speech and expression, the outcome would be unwanted pregnancies or spread of sexually
transmitted diseases that would kill or cripple the younger generation. Morality is not old-fashioned or irrelevant in a modern world, for, morality is
not simply a creation of religion but rather a necessary underpinning of a healthy and successful society. While many things have changed a great
deal over the years, some things have not changed and other things should not change viz., moral and ethical values. There would be no purpose in
hiding the fact that to-day''s society is running backward turning away from ethical and moral norms and sexually inciting materials are in prevalence
everywhere. In such circumstances, persons like petitioner, who succeeded in gaining the recognition of the society, should endeavour to refine the
society by giving some good advices and if they feel they cannot do so, then, they should keep quiet confining themselves to their own agenda. But,
in the name of freedom of speech, if they pass on messages corrupting the minds of the youngsters, the same would not be tolerated since
ultimately it would lead to abrupt increase of sexual offences. There would be no second opinion at all that if such scabrous views are propagated,
cultural degradation will be the resultant position ultimately leading to upsetting of social order. Thus, Freedom of expression would not give an
unbridled licence to a citizen of India to speak about free sex/pre-marital sex.
It is the perpetual understanding of a right mind that both premarital and extramarital relationships are molecules of immorality. Largely, such
relationship advocated to be adopted by the petitioner can also be termed as ''cohabitation'' and the definition available for the term is ''a non-
marital heterosexual arrangement or a semi-permanent heterosexual relationship outside the scope of marriage''. The petitioner addressed the
society in particular the younger generation to acquire the right of cohabitation. With a fair approach and unbiased mind, one has to judge the issue
between the two conflicting views on the right of cohabitation/premarital or extramarital sex. According to one view, rather a traditional view, such
relationship is completely wrong and promotes sexual promiscuity which is injurious to physical and mental health. It is pertinent to point out that
such view is still reflected in the adultery laws which make extramarital sex illegal. On the other extreme, there is sexual anarchy which advocates
the removal of all sexual taboos and controls with full and universal availability of sex, the only restriction being the prohibition of sexual violence. In
between these two poles, the judicious and balanced view is humanistic liberalism which holds that morality inheres in one''s deeds rather than the
commission or omission of the act itself. Immorality in the present context seems to refer to nothing more or less than extra-marital or pre-marital
relationships.
One cannot justify an agreement or a contract between a man and a woman living together without getting married providing for the terms and
conditions of a possible cohabitation and/or future separation, because, such contract is contrary to public policy and illegal as it is quite obvious
that the object of such contract is to promote sexual immorality. In law, a woman cannot claim maintenance from the cohabiting man. To claim
maintenance u/s 125 Cr.P.C., she must come within the category of wife and the term ''wife'' means a legally wedded wife both in Hindu and
Muslim Law. The legal status and rights and obligations of partners in premarital and extramarital sex are just naught contrary to those available in
case of married couples who could get solution for numerous legal problems concerning the disposition of jointly accumulated property, money and
debts as well as the custody, guardianship and maintenance of children born to them. The other ugly face of such relationships is birth of children
who would be branded by the society as ''illegitimate children'' and the scar and stigma those innocents would bear throughout their life because of
the no sin committed by them but due to the acts of the lust-stricken couples is really an injustice caused to them. Such children would not have the
status of a legitimate child in the matter of succession.
In recent past, several films have been produced, the central theme being teenage love; thereby, a wrong and ribald message is given to the
teenagers as well as school going children that falling in love is a part of heroism, with the result, elopements have become routine incidents and
court is flooded with Habeas Corpus Petitions at the instance of parents in search of the eloped pubescents below the age group of 18. Police
officials, amongst their hectic schedule of maintaining law and order problems, also laden with the task of going behind the eloped ones throughout
the state and sometimes beyond the State boundaries. It is also witnessed that, in the thousands of cases registered, most of the victims had been
traced and, after completion of the proceedings, the traced ones were entrusted to the custody of the concerned and hundred of cases, where
victims could not be traced, are still pending. Enquiries in those cases revealed that the victims seem to have been induced to indulge in such acts
due to the impact of the movies and those victims do not have even the correct idea of what really a family life is. In some cases, while leading life
in the society, they have to encounter with so many astringent and acerbic ordeals and when they come back to their parents for want of security,
they are rejected by them fearing that a bad image would be depicted of the family by the neighbours and society.
Since sexology is a delicate and sensitive subject, introducing the same in schools as a subject has not been put into practice till to-day. In fact, a
Parliamentary Committee has been constituted to study the viability of introducing sex education at Schools, however, some experts and scholars
on the subject would argue against the introduction of such scheme. They cite the example of the society in Japan, which has a very low teenage
pregnancy rate but does not have a national sex-education program at all, and point out that conservative norms about early marriage and
premarital sex worked out this phenomenon better than the availability of fertility control.
14. Now coming back to the core issue, it is also seen that when the petitioner was granted bail by order of the trial court dated 16.11.2005, one
of the conditions imposed was that she should not make any public statement which is subject matter of the dispute till the disposal of the case.
Learned Counsel for the complainants/respondents submits that, in spite of such direction by the court, she was continuously indulging in passing
comments about her earlier statements and the same also appeared in news items and such action on the part of the petitioner would amount to
violation of court directions. In that regard, he referred to the address given by the petitioner during question hour at a symposium which has been
published as a news item in the English Daily ''Indian Express'', edition dated 19.07.2007. The relevant portion is extracted below:
We talk about 52 years of Independence. I don''t know whether we really have it when it comes to freedom of expression,"" said actor
Khushboo. She was speaking on the sidelines of the Symposium organised by the FICCI Ladies Organisation and Ellements, on the subject,
''Justice - Right or Privilege''.
''I have 24 cases pending against me. The law was bought in my case. Why was I denied bail for six days?'' she asked. A case is even pending
against her in Indore.
The question might go unanswered, but the actor has a point to prove in her customary irate statements. ""We must get together and say we have
the individual right to speak. Not what some lawyer speaks, but actually speak the truth,"" she confided.
I am sorry to say but India is not going to progress if this continues. We have to fight against the so-called laws."", she added
(emphasis supplied)
Learned Senior Counsel for the petitioner did not say anything about the above referred news item. It is very unfortunate that an accused in a
sensitive case, who has been granted relief and directed to comply with certain conditions so as to ensure that again a turbulent situation should not
arise, had the audacity to pass adverse comments against the court and the legal system. She is directed to exercise restraint till the disposal of the
cases.
15. In the light of the foregoing discussion, this Court finds that there are no special features in this case to suggest that it is not expedient and not in
the interest of justice to permit the prosecution to continue. Assuming that the imputations made could be covered by any or many of the
exceptions appended to Section 499 IPC, several questions still remain to be examined '' whether such imputations were made in good faith, in
what circumstances, with what intention, etc. All those aspects can be examined on the basis of evidence in the trial. Answers to these questions at
this stage, even before the plea of the accused is recorded can only be a priori conclusions. ''Good faith'' and ''public good'' are, at best, questions
of fact and matters for evidence. So, the trial must go on. Inasmuch as the allegations made against the petitioner/actress are interconnected to the
Magazine as well in publishing the controversial interview, this Court deems it an unnecessary exercise to give separate findings thereon as the
same would also be dealt with by the trial court on the facts involved. Whether the complainant has reason to feel hurt on account of the
publication is a matter to be determined by the court depending upon the facts of each case. At the risk of repetition, it is again pointed out that the
expression ''some person aggrieved'' was not intended to be restricted to the person actually defamed. It must be determined in each case
according to its own circumstances whether the complainant could be said to be in a legal sense a person aggrieved. Again, it all depends upon
facts and circumstances of each case.
16. The above batch of cases emerges out of one cause of action. The allegations and defence projected in all the cases appear to be the same.
The trial of the cases could also be completed soon since witnesses and documents are few. It is also noticed that, despite the direction issued by
the learned Magistrate, the petitioner could not restrain herself. Therefore, in order to avoid scattered trial of cases involving same cause of action
before several courts, it is but proper to direct joint trial and disposal of all the cases that are pending, instead of taking up separate proceedings
against her for violation of court''s orders. Accordingly, all the cases are directed to be transferred to the file of the Chief Metropolitan Magistrate,
Egmore, Chennai, who shall conduct joint trial of the cases and dispose of the same within a period of six months from the date of receipt of copy
of this order. The trial courts concerned are in turn directed to transmit forthwith the papers to the Court of Chief Metropolitan Magistrate,
Egmore, Chennai, for commencement of the trial proceedings at once.
17. It is made clear that the learned Chief Metropolitan Magistrate shall decide the cases on their own merits and in accordance with law,
uninfluenced by the observations/comments made in this order.
