Telangana High Court
Kancha Ilaiah,Secunderabad vs The State Of Telangana,Home Deptand … on 13 December, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
HONOURABLE Dr. JUSTICE G. RADHA RANI WRIT PETITION Nos.36994, 36998, 37054 and 41207 of 2017 COMMON ORDER:
All these writ petitions are disposed of by a common order as the
petitioner in all the writ petitions is one and the same and he filed the
above writ petitions seeking issuance of an appropriate writ preferably a
writ in the nature of Mandamus to declare the FIRs / Calendar Cases
registered against him as illegal, arbitrary and violative of Article
19(1)(a) of the Constitution of India and consequently to quash the
same.
2. W.P. No.36994 of 2017 is filed to quash the proceedings in
Crime No.770 of 2017 on the file of Malkajgiri Police Station,
Rachakonda, registered for the offences under Sections 153A(c), 153B,
295A, 509 IPC and Section 3 (1) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act (for short ‘SC & ST Act‘) read
with Section 156 (3) Cr.P.C.
3. W.P. No.36998 of 2017 is filed to quash the proceedings in
CC No.417 of 2017 on the file of Judicial Magistrate of First Class,
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Korutla, Jagtial District, for the offences under Sections 153A(b), 295A,
298, 504, 505(1)(b)(c) of IPC.
4. W.P. No.37054 of 2017 is filed to quash the proceedings in
Crime No.438 of 2017 on the file of the Station House Officer,
Karimnagar I-Town Police Station, Karimnagar District, registered for
the offences under Sections 153A, 295A, 325, 500, 504 and 506 IPC
read with 156(3) Cr.P.C.
5. W.P. No.41207 of 2017 is filed to quash the proceedings in
CC No.537 of 2017 on the file of X Metropolitan Magistrate, Cyberabad
at Neredmet, registered for the offences under Sections 153A(b), 295A
and 509 IPC.
6. Heard Sri A. Satyaprasad, learned Senior Counsel for the
petitioner, Sri K. Venumadhav, learned counsel for the respondent No.2
in WP No.36998 of 2017, Sri Somasi Srinivas, learned counsel for the
respondent No.2 in WP Nos.37054 and 41207 of 2017, Sri G.L.
Narasimha Rao, learned counsel for the respondent No.4 in WP
No.36994 of 2017 and the learned Government Pleader for the official
respondents in all the writ petitions.
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7. Learned counsel for the petitioner submitted that the petitioner
was a well known academician and author of various books including
‘Post-Hindu India’ (discussion on Dalit-Bahujana Social, Spiritual and
Scientific Revolution), published by SAGE, an International Publishing
House. The said book was published in the year 2009. It mainly deals
with the historical role of various castes and communities in production,
distribution, business and spiritual activities. The said work was an
internationally acclaimed one and received reviews from various
national and international newspapers appreciating and acknowledging
the book. The said book has as many as 13 chapters. Each chapter
deals with a community, its origin, role, production activities and
historical interaction between caste and caste, field and field, culture and
culture. It was a scholarly work. The said book was also published in
Telugu by EMESCO Publications, Hyderabad in 2011 which also
received wide appreciation. In order to reach a large segment of people,
each chapter was published as a separate book. Totally 9 books were
published in Telugu language by Bhoomi Book Press, Hyderabad. Since
the titles of the chapters did not indicate the caste names which every
chapter dealt with, the caste names had been indicated in the booklets
along with title used for the chapter to inform the reader as to what that
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book contained. If the entire book was published in Telugu, there would
have been no necessity to indicate the name of the community. But,
when it was published separately, it became necessary to indicate the
name of each caste/community for the benefit of the reader.
7.1. In that process, Chapter-9 of Post-Hindu India book was
published as ‘Saamajika Smugglerlu Komatollu’. The said booklet
contained what was the subject matter of the chapter in the above
mentioned book in Telugu version. However, the translator in Telugu
version had taken some liberty to make the reader to understand the
intention of the author. Neither the author nor the translator had any
intention to humiliate or malign a particular community, in the instant
case, the community publicly known as Vysyas/Baniyas/Komaties in
Telangana region. The petitioner, being author had traced the history of
the said community and their role in the Society and their economic
activity which was an academic exercise. The research of the petitioner
would show that the above community was mainly involved in the
business/sale of products, grain and goods and in that process, their
activity in the society. As a part of their business activity, the said
community had become prominent in transport and export of grain and
goods. The author himself explained as to why he used the word as
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‘social smugglers’ against the said community. The opinion of the
author was a part of the scholarly work to which one might differ, but
that could not be the basis for filing criminal cases against the petitioner
without keeping in mind the freedom of speech and expression ordained
under Article 19 (1) (a) of the Constitution of India.
7.2. He further submitted that when the title of the book or
contents therein in Telugu were sought to be challenged seeking to
prohibit the book itself in Writ Petition (Civil) No.946 of 2017 filed by
one Sri KLNV Veeranjaneyulu, a three Judge Bench of the Hon’ble
Apex Court headed by the Hon’ble the Chief Justice rendered the
judgment on 13.10.2017 observing as follows:
“In this writ petition, the petitioner has prayed for a
writ of mandamus to ban the book ‘Samajika
Smugglurlu Komatollu’ written by Professor Kancha
Ilaiah and further to ban chapter 9 of a book titled
‘Post-Hindu India’ and chapter 9 of ‘Hindutv-Mukt
Bharat”.
We do not intend to state the facts in detail. Reason:
Suffice it to say that when an author writes a book, it
is his or her right of expression. We do not think that it
would be appropriate under Article 32 of the
Constitution of India that this Court should ban the
book/books. Any request for banning a book of the
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every author or writer has a fundamental right to speak
out ideas freely and express thoughts adequately.
Curtailment of an individual writer/ author’s right to
freedom of speech and expression should never be
lightly viewed.
Keeping in view the sanctity of the said right and also
bearing in mind that the same has been put on the
highest pedestal by this Court, we decline the
ambitious prayer made by the petitioner.
The writ petition is, accordingly, dismissed.”
7.3. He further submitted that a fair reading of the above
judgment would make it clear that any request for banning a book of the
present nature had to be strictly scrutinized. Every author or writer had
a fundamental right to speak out ideas freely and express thoughts
adequately. The Hon’ble Apex Court in view of the sanctity of the said
right, declined the petitioner’s prayer to ban the book. But, however, a
series of criminal petitions were filed against the petitioner for
writing/publishing the said book. A fair reading of the complaints
lodged by the unofficial respondents would show that the complainants
made omnibus allegations without bringing any specific instances
constituting the offences alleged against the petitioner. Indian State was
primarily a secular State. It had no religion. The constitution did not
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citizens were having religious freedom to choose any religion of their
own belief. The context of the book published in Telugu had to be
comprehensively looked into. The allegations made against the
petitioner were selective in nature. They were lifted out of context and
the complaints were lodged on an untenable basis. The book ‘Post-
Hindu India’ was in circulation right form 2009. The Telugu version of
the book was published in the year 2011. Since 2009, the books were
treated only as a work of scholarly nature and acclaimed thesis on the
subject. The conclusions arrived by the author in the said books were
out of serious study made in that behalf. The same was an academic
work. The petitioner had a right to express his views out of his study
and communicate the same to the society under Article 19(1)(a) of the
Constitution of India. The unofficial respondents had taken one singular
book out of one of the chapters of the main book and attributed
allegations against the petitioner without understanding the
comprehensive nature of the entire book and subject thereof. The issue
involved in the present writ petitions was no more resintergra. The
Hon’ble Apex Court as well as this Court in a catena of judgments
declared that any prohibition of books, or speech was not permissible
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and violative of Article 19(1)(a) of the Constitution of India and relied
upon the following judgments:
1) Manzar Sayeed Khan v. State of Maharashtra and
another 1;
2) Life Insurance Corporation of India v. Professor
Manbhai D. Shah 2;
3) Mahendra Singh Dhoni v. Yerraguntla
Shyamsundar and another 3;
4) Gajanan Visheshwar Birjur v. Union of India and
others 4;
5) Javed Ahmed Hajam v. State of Maharashtra and
another 5;
6) Shreya Singhal v. Union of India 6
8. He further submitted that registering of multiple FIRs against
one issue was totally impermissible and relied upon the judgment of this
Court in Akbaruddin Owaisi vs. Government of A.P. 7. He further
submitted that various criminal proceedings were maliciously instituted
with an ulterior motive for wreaking vengeance on the petitioner and
prayed to quash the FIRs or Criminal Cases against the petitioner, as
1
(2007) 5 SCC 1
2
(1992) 3 SCC 637
3
(2017) 7 SCC 760
4
(1994) 5 SCC 550
5
(2024) 4 SCC 156
6
(2015) 5 SCC 1
7
2013 (6) ALT 101
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WP No.36994 of 2017&Batchbeing violative of the fundamental rights guaranteed under the
Constitution of India.
9. Sri K. Venumadhav, learned counsel for the respondent No.2
in WP No.36998 of 2017 contended that the writ petition was not at all
maintainable as writ of Mandamus could only be issued against a
statutory authority if the authority was acting against law or not acting
in accordance with law in discharging public duty. The contents of the
complaint clearly constitute the offences alleged. On considering the
same only, the learned Judicial Magistrate of First Class, Korutla had
taken cognizance of the offences and numbered as CC 417 of 2017 and
issued summons to the petitioner. The words used by the petitioner in
the book authored and got published by him would not come under the
fundamental rights of freedom of speech enunciated under Article
19(1)(a) of the Constitution of India. They would attract the reasonable
restrictions imposed under Article 19 (2) of the Constitution of India.
Therefore, the petitioner was liable for prosecution. The petitioner
could not get protection under Article 19(1)(a) of the Constitution of
India as he had used offensive words in the book written, published and
circulated by him. The truth or otherwise of the contents of the
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complaint could be decided only after a full-fledged trial and prayed to
dismiss the writ petition in limini with costs.
10. Sri Somasi Srinivas, learned counsel for the respondent No.2
in WP Nos.37054 and 41207 of 2017, contended that private complaints
were filed basing on the entire book and also derogatory statements of
the petitioner made in various TV channels and in public speeches. The
learned X Metropolitan Magistrate (now Principal Junior Civil Judge
cum Additional Metropolitan Magistrate, Kushaiguda) at Neredmet had
taken cognizance of all the offences and issued summons to the accused.
When the petitioner has an alternative remedy under Section 482
Cr.P.C. for quashing the CC no.537 of 2017, availing the extraordinary
jurisdiction under Article 226 of the Constitution of India was not
maintainable under law as decided by the Hon’ble Apex Court in State
of Himachal Pradesh v. Prithi Chand 8, State of Bihar v. Sri
Rajendra Agarwalla 9, State of Uttar Pradesh v. O.P. Sharma 10 and
of the High Court of Manipur in Vinod Kumar Sethi v. State of
Manipur 11 and of this Court in M.B. Rajanikanth & another v. The
8
AIR (SC) 1996-323
9
AIR (SCW)-1996-0-591)
10
(AIR (SC)-1996-2-919)
11
(LAWS (MANIP)-2017-7-5)
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State, Inspector of Police, CBI, ACB, Visakhapatnam & others 12.
He further contended that to consider the book as scholarly work, the
author should mention atleast the primary source like Government G.Os.
and Monographs; secondary source like published research books,
research methodology, questionnaires tablet, date of interviews and
interviewers names and addresses etc. When the research was
pertaining to history, it should be based on evidence of any sort for the
purpose of inferences and interpretations. He further contended that the
petitioner deliberately with a malicious intention was distorting facts
and attacking on faiths. The book published was from his self thought
to demoralize Hindu beliefs, but not a research work as claimed by the
petitioner. The contents of the book ‘Post-Hindu India’ or ‘Hindu
Mukth Bharath’ and speeches made by the petitioner were absolute
falsehood and baseless. He badly criticized some of the castes of Hindu
religion, which would attract hate-speech, which was restricted by
Article 19(2) of the Constitution of India, as such, the writ petitions
were not maintainable. The petitioner was attributing un-ethical word
like ‘Smugglers’ to a caste and publishing a book itself in the said name
would indicate his real intentions. The respondent No.2 and his
12
WP No.18428/ 2009 decided on 09.06.2011.
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community (caste people) were having equal right to live in the society
with social dignity, respect and personal liberty. Through his hate
speeches and writings, the petitioner demoralized and demeaning the
caste of the respondent No.2. After releasing the said book, agitations
were made by Arya Vysya community people. There have been
protests, police and court cases and a split among the free speech
support groups, erupting huge violence in both the Telugu States i.e.
Andhra Pradesh and Telangana, where Arya Vysyas were residing.
Thus, the petitioner caused hindrance to public order, decency, morality
and disturbed public harmony among different sections of people,
demoralized, defamed, assaulted, insulted and wounded the religious
beliefs/sentiments of a section of people and provoked other section of
people on Arya Vysyas and caused breach of peace in two Telugu
States. He also intentionally insulted the modesty of women of certain
section of people in his book. Thus, the writ petitioner could not take
shelter under Article 19(1)(a) of the Constitution of India and the writ
petitions were not maintainable and prayed to dismiss the same with
exemplary costs.
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11. Sri G.L. Narasimha Rao, learned counsel for the respondent
No.4 in WP No.36994 of 2017 also argued on the same lines as that of
the learned counsel representing the other un-official respondents.
12. Learned Government Pleader for Home contended that
basing on the private complaint forwarded to the SHO, Malkajgiri
Police Station, a case in Crime No.770 of 2017 for the offences under
Sections 153(A) (a), 153-B (a), 295-A, 509 and Section 3 of the SC &
ST (PoA) Act, was registered by the Malkajgiri police and on the private
complaint forwarded to the SHO, Korutla, a case in Crime No.537 of
2017 for the offences under Sections 133-A, B, 295-A and 505 IPC was
registered by the Korutla Police. As per the sum and substance of the
private complaints, the petitioner published a book titled as ‘Saamajika
Smugglerlu Komatollu’. In that book, he not only targeted Vysya
community but also targeted all Hindu communities with a view to
create divide and raise rifts in between the Hindu Society. Taking
advantage of caste system prevailing in Hindu religion, he intended to
outrage the religious feelings of the class by insulting its religion and
religious beliefs. His aim was to convert all BC, SC and ST
communities into Christianity, so that he would get one lakh crore
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dollars from the foreign countries. He also insulted the Scheduled Caste
people and intended to outrage their religious feelings.
12.1. Learned Government Pleader for Home further submitted
that during the course of investigation, the Investigating Officer
recorded the statements of the complainant and issued a notice under
Section 41-A Cr.P.C. to the petitioner requesting him to appear before
the Investigating Agency calling for his explanation. The petitioner
gave his reply to the said notice on 26.10.2017. While the explanation
was pending consideration, the petitioner approached the court, filed the
present writ petitions and obtained interim stay of all further
proceedings at the stage of admission, which was being extended from
time to time, due to which further course of action was stopped. The
Investigation was at the initial stage. The truth or otherwise would
come out depending on a full-fledged investigation into the case. Unless
a full-fledged investigation was conducted, it could not be said that the
petitioner had nothing to do with the criminal acts alleged against him.
To establish the offence, the Investigating Agency has to examine some
more witnesses and need to collect material evidence. Basing on the
total outcome of the investigation, appropriate report under Section 173
Cr.P.C. would be filed before the concerned courts. It was mandatory
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on the part of the police to register FIR and conduct investigation into
the case and file appropriate report before the concerned court. Hence,
registration of FIRs was legal, valid and prayed to dismiss the writ
petitions by vacating the interim orders granted in the writ petitions.
13. On considering the arguments of all the learned counsel, it is
considered necessary to deal with the preliminary objection raised by
the learned counsel for the unofficial respondents with regard to
maintainability of the writ petitions, particularly invoking the writ of
Mandamus, when there is an alternate remedy available to the petitioner
under Section 482 of Cr.P.C. The contention of the learned counsel for
the respondents in WP Nos.37054 and 41207 of 2017 is that when a
remedy is available under Section 482 Cr.P.C., the High Court shall be
circumvent to exercise its extraordinary jurisdiction under Article 226 of
the Constitution of India for a similar relief and relied upon several
judgments of the Hon’ble Apex Court in State of Himachal Pradesh v.
Prithi Chand (supra), State of Bihar v. Sri Rajendra Agarwalla
(supra), State of Uttar Pradesh v. O.P. Sharma (supra) and of the
High Court of Manipur in Vinod Kumar Sethi v. State of Manipur
(supra) and of this Court in M.B. Rajanikanth & another v. The State,
Inspector of Police, CBI, ACB, Visakhapatnam & others (supra).
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14. Learned counsel for the petitioner, on the other hand, relied
upon the judgment of the Hon’ble Apex Court in Kapil Agarwal and
others v. V. Sanjay Sharma and others 13, wherein it was held that:
“6.1 As observed and held by this Court in a catena of
decisions, inherent jurisdiction under Section 482
Cr.P.C. and/or under Article 226 of the Constitution is
designed to achieve salutary purpose that criminal
proceedings ought not to be permitted to degenerate
into weapon of harassment. When the Court is
satisfied that criminal proceedings amount to an abuse
of process of law or that it amounts to bringing
pressure upon accused, in exercise of inherent powers,
such proceedings can be quashed.
6.2 As held by this Court in the case of Parbatbhai
Aahir v. State of Gujarat (2017) 9 SCC 641, Section
482 Cr.P.C. is prefaced with an overriding provision.
The statute saves the inherent power of the High
Court, as a superior court, to make such orders as are
necessary (i) to prevent an abuse of the process of any
Court; or (ii) otherwise to secure the ends of justice.
Same are the powers with the High Court, when it
exercises the powers under Article 226 of the
Constitution.”
15. Article 226 of the Constitution of India encapsulates wider
powers to be exercised by the High Court than Section 482 Cr.P.C. A
13
LiveLaw 2021 SC 123
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writ can be issued against the State in any circumstance whereas Section
482 Cr.P.C. can be used only to cases or procedures under the Code.
Article 226 of the Constitution gives wide powers to the High Court to
see that the processes of the Courts below are not abused or otherwise to
secure the ends of justice. The directions which can be issued under
Section 482 Cr.P.C. can also be issued by way of a writ petition under
Article 226. A Writ Petition under Article 226 of the Constitution can
be filed in the High Court when there is a violation of fundamental right
or in cases where an individual seeks the courts intervention to quash or
set aside the criminal proceedings initiated against him. Thus, a writ
petition under Article 226 of the Constitution of India is maintainable
for quashing FIRs/Criminal proceedings enforcing the rights of an
accused or any other matter related to the criminal law to safeguard the
fundamental rights of the litigants.
16. Sri K. Venumadhav, the learned counsel for the respondent
No.2 in WP No.36998 of 2017 contended that a writ of Mandamus was
not maintainable as the same could be issued only against a statutory
authority, if the authority was acting against law or not acting in
accordance with law while discharging public duty and relied upon the
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judgment of the High Court of Delhi in Prakash Singh v. Union of
India and another 14, wherein it was held that:
“The writ of mandamus is not generally a remedy
against private wrongs. The scope of writ of
mandamus is against the private authority which might
be performing a public duty limited to the enforcement
of the public duty, and this Court cannot interfere with
the internal management of a private body. It is well
settled that a writ of mandamus lies only for the
purpose of a public or statutory duty. Writs are issued
for the performance of public duties. Though Article
226 of the Constitution of India is worded in such a
way that a writ of mandamus could be issued even
against a private authority but such private authority
must be discharging a public function and the right
sought to be enforced must be a public duty.”
17. As seen from the present writ petitions, the writ petitions
are filed seeking relief against the official respondents, who registered
cases against the petitioner basing on the complaints lodged by the
unofficial respondents. Thus, these writ petitions are filed against the
respondents, who were performing public duty. Multiple cases are filed
by the complainants from various places of the state alleging that their
religious feelings were hurt due to the publication of the present book or
14
2022 LawSuit (Del) 1865
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due to the opinion expressed by the author in the above book or in
various debates or public speeches made by him, some of which were
referred to police under Section 156(3) of Cr.P.C. and some of which
were directly taken cognizance by the Magistrates.
18. This Court in a batch of Criminal Petitions in Akbaruddin
Owaisi v. The State of Andhra Pradesh (7 supra) after considering the
various judgments of the Hon’ble Apex Court in T.T.Antony v. State
of Kerala 15 held that:
“24. There can be no second FIR and no fresh
investigation on receipt of every subsequent
information in respect of the same cognizable offence
or same occurrence, giving rise to one or more
cognizable offences.”
25. From the above, it is clearly discernable that
according to the Supreme Court, the sweeping power
of investigation does not warrant subjecting a citizen
each time to a fresh investigation by the police in
respect of the same incident, giving rise to one or
more cognizable offences, consequent upon filing of
successive FIRs, whether before or after filing the
final report under Section 173(2) Cr.P.C. The Court
observed that case of fresh investigation based on the
consequent or successive FIRs not being counter-case,
15
(2001) 6 SCC 181
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filed in connection with the same or connected
cognizable offence alleged to have been committed in
the course of the same transaction and in respect of
which pursuant to the first FIR either investigation is
under way or final report under Section 173 (2) has
been forwarded to the Magistrate, may be a fit case for
exercise of power under Section 482 Cr. P.C., or under
Articles 226/227 of the Constitution. In the
circumstances of that case, it was held that registration
of the second FIR was not valid and consequently
investigation made pursuant thereto was of no legal
consequences. Those were accordingly quashed.
29. In Arnab Ranjan Goswami vs. Union of India,
petitioner had complained that following a broadcast
on Republic Bharat TV on 21.04.2020, multiple FIRs
and criminal complaints were lodged against him, not
only in the State of Maharashtra but in different States
and Union Territories. The first FIR was lodged at
Sadar Police Station, Nagpur City, Maharashtra
whereafter as many as 14 other FIRs and complaints
were lodged in different places. Delineating the aspect
of lodging of subsequent FIRs, Supreme Court on an
analysis of various judgments including in T.T.
Antony‘s case (2 supra) and in Upkar Singh vs. Ved
Prakash, held that there can be no second FIR when
the information concerns the same cognizable offence
alleged in the first FIR or the same occurrence or the
incident which gives rise to one or more cognizable
offences. Barring situations in which a counter-case is
filed, a fresh investigation or a second FIR on the
basis of the same or connected cognizable offence
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would constitute an abuse of the statutory power of
investigation and may be a fit case for exercise of
power either under Section 482 Cr.P.C. or under
Articles 226/227 of the Constitution. However, it has
been clarified that when there are rival versions in
respect of the same episode, they would normally take
the shape of two different FIRs and investigation can
be carried out under both of them by the same
investigating agency. In the facts of that case, it was
found that all the FIRs or complaints lodged in diverse
jurisdiction arose out of one and the same incident,
i.e., broadcast by the petitioner in Republic Bharat on
21.04.2020.
Therefore, all the other FIRs/complaints were quashed
leaving open the investigation carried out by Sadar
Police Station, Nagpur City which was however
transferred to NM Joshi Marg Police Station in
Mumbai.
19. Thus, a Writ Petition for quashing of FIRs or complaints
lodged in diverse jurisdictions arising out of one and the same incident
is maintainable under Article 226 of Constitution, when it is considered
as an abuse of the statutory power of investigation.
20. Thus, this Court does not find any merit in the contention
of the learned counsel for the respondents that the writ petitions are not
maintainable. The contention of the learned counsel for the unofficial
respondents in W.P.No.36998 of 2017 that writ of Mandamus could not
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be issued for quashing of criminal cases, wherein the Courts have taken
cognizance of the private complaints is also considered by this Court.
As the petitioner had sought for issuance of an appropriate writ and as
the Constitutional Courts are constituted for the protection and
guarantee of fundamental rights of citizens, it is considered not a good
ground to refuse to entertain the petitions. The mere existence of an
adequate alternative legal remedy is also considered as not a sufficient
ground for throwing out these petitions, as the petitioner is contending
that his fundamental right under Article 19(1)(a) of the Constitution of
India is violated, and criminal cases were registered against him in
violation of his fundamental right.
21. The contention of the learned counsel for the petitioner was
that the petitioner was an acclaimed author, he was a Retired Professor
at the Department of Political Science, Osmania University and a
Professor in Maulana Azad National Urdu University (MANUU),
Telangana. He was a prolific writer authored several books and
regularly contributes articles to national newspapers and magazines. He
was the author of the book “Why I am not a Hindu’, a thought
provoking critique of Brahmanism and caste system in India and
challenges Hinduisms interpretation of history, which received reviews
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from various international newspapers, which appreciated and
acknowledged the book. The book “Post-Hindu India” (A Discourse on
Dalit-Bahujan Socio-Spiritual and Scientific Revolution) published by
SAGE publishers, an international publishing house, received critical
acclaim. The widely circulated Hindu Newspaper had acclaimed it as ‘a
war against ignorance’. The Economic and Political Weekly acclaimed
it as ‘An argument to break the caste barriers that separated the
community groups, in the belief that the shared characters of a life of
production will provide an experiential basis for the common battle
against upper-caste hegemony’. It was recognized as a work challenging
Hinduism’s interpretation of history, with a virulent attack on caste
politics which takes a refreshing look at the necessity of encouraging
indigenous scientific thought for the sake of national progress and that it
establishes Hinduism as a ‘backward’ religion that suppresses the latent
scientific and productive potential of the Dalit-Bahujan communities.
The critics acclaimed that as per the author, the oppressive system of
spiritual fascism is detrimental to both the future of religion and the
nation-state and the author criticizes the idea of spiritual justice or varna
dharma used to justify the caste system as rooted in spiritual inequality
and that on micro-analytical level, the book was considered as a
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WP No.36994 of 2017&Batch
thorough study of productive knowledge systems of Dalit-Bahujan
communities of Andhra Pradesh and provides a day to day analysis of
the scientific technological processes and events at work in the life of a
member of these communities. On a macro level, it shows how
Hinduism fails to negotiate between faith and reason, unlike other major
religions of the world. It was considered as a work which critiques the
intellectual imagination of the dominant communities and inspires the
marginalized. It is considered as a work of immense socio-political
interest which would appeal to academicians and to all those who are
concerned about contemporary India’s polity and social fabric.
22. Learned counsel for the petitioner also filed a review given
by Mark Tully, a well known author and Padmasree & Padma Bhushan
awardee, who stated that:
“This is a startling book, revealing the extent of the
anger and hurt of the author, a well-known OBC
academic and social activist. It’s a polemic on what
his experiences as an OBC as well as his academic
research on Dalit and Tribal communities have led
him to see as a centuries-old Brahmin Conspiracy.
The conspiracy to subjugate the Dalits, the Tribals and
the Shudras too. Kancha Ilaiah equates Hinduism
with Brahminism. He says, “For any external
observer Hinduism is nothing but an institutionalized
25
Dr.GRR,J
WP No.36994 of 2017&Batchimage of the Brahmin self; although some people say
it is a religion that encompasses all the castes.”
Ilaiah attacks what he considers to be Hinduism for
imposing an order on society which is neither
egalitarian nor pluralist. The caste system is
responsible for this imposition, and it is still in place,
he says, because democracy has not affected the
domination of the upper castes. They are accused of
being “spiritual fascists”, and “intellectual goondas”.
Ilaiah maintains that the spiritual fascism was so
constructed by Brahmins that those who were its
victims could not comprehend its essence. In other
words, a confidence trick has been played on them.
He calls the Dalits, Tribals and the Shudras as Dalit-
Bahujans and sees them as the productive sections of
society while regarding the upper castes as mere
parasites. If they had not fostered the caste system
and prevented intermarriage, Ilaiah believes there
would have been an interchange of the technology
practiced by different castes in their professions and
India would have become a scientific society. He
quotes as an example of the Dalit’s technology of
tanning animal skins and manufacturing shoes and
other leather products. Brahminism is seen by him as
anti-scientific, and disinterested even in such basic
subjects as agriculture. He accuses it of seeing
“knowledge as ignorance, and ignorance as
knowledge”, and doesn’t credit it with a single
scientific discovery. In fact he believes the position is
even worse than that. The Brahmins are accused of
26
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WP No.36994 of 2017&Batch
stealing the discoveries of the Dalit-Bahujans. Ilaiah
maintains that zero was discovered by cattle herders
and many Ayurvedic medicines by Shudras, Dalits or
Tribals, but Brahmins have claimed them as their own.
Ilaiah does not merely concentrate on the economic
and other material problems created by the caste
system. He believes it is essential for the Dalits,
Tribals and Shudras to acquire a spirituality which is
egalitarian and pluralist. He says, “The first major
agenda for post-Hindu India is to build a spiritual
democratic basis… A religious structure that
guarantees their right to spiritual equality.” He
compares Hinduism with Christianity, Islam and
Buddhism, which he sees as egalitarian and pluralist
religions, and lays great emphasis on Ambedkar’s
rejection of Hinduism and adoption of Buddhism. But
the repressive role that all these religions have played
at times, and some would argue still do play,
particularly their repression of women, is not taken
into consideration.
The last chapter of the book is called Post-Hindu
India. Ilaiah believes Hinduism’s days are numbered,
and even talks of a civil war in which Hinduism will
be defeated by the combined forces of the Dalit-
Bahujans. When that happens, he believes “the
regeneration of India begins in multiple levels of
Indian society. The society and technology that the
productive masses nurtured for so long will take a new
life”. But Ilaiah recognizes that the Shudras have not
yet rejected Hinduism partly because those he calls the
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WP No.36994 of 2017&Batch
Brahminic forces linked Independence and democracy
with that religion. So there is still one major fissure in
the Dalit-Bahujan alliance he foresees. Nor of course
is there unity yet within the Dalit, Shudra, or Tribal
communities themselves. A recent report from rural
Gujarat pointed out that Dalits of the more highly
regarded castes treat other Dalits as untouchable while
the political geography of Bihar and Uttar Pradesh is
evidence that the OBCs are not united.
Because this book is a polemic, it’s one-sided and so
loses some of its impact. At one stage Ilaiah suggests
that because Hinduism is not egalitarian and pluralist,
it cannot last long. But it has, and that must surely be
because it has positive attributes. Ironically, just at the
time Ilaiah is prophesying the end of Hinduism,
admiration of its spiritual teaching and practices is
spreading in other parts of the world. Admittedly the
same cannot be said for the caste system which has
few defenders anywhere, and Ilaiah would argue that
the caste system is the essence of Hinduism. But
surely the Gita, revered by Gandhi as his Bible, and by
distinguished thinkers of different faiths too, cannot be
written off just because it is set in the context of a war.
Now that Ilaiah has got his polemic off his chest,
might he not think of publishing a reasoned dialogue
between himself and those who do not see Hinduism
as wholly inimical to egalitarian democracy? The
danger is that many people will write off this book as
extremist. It is a danger because we need to be aware
of the depth of anger and hurt it reveals. I have to say
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WP No.36994 of 2017&Batch
that, when I look back on what I have written, I have
not been as aware of this as I should have been.”
23. Learned Senior Counsel for the petitioners had provided
details wherein the book was recommended by various universities as
part of their syllabus. The Delhi University (DU) Political Science
Department has included this book in its Post Graduate syllabus. The
Mahatma Gandhi Antarrashtriya Hindi Vishwavidyalaya had included it
in its integrated Masters Programme in Social Sciences. Doctor
Harisingh Gour Vishwavidyalaya, Sagar, MP (A Central University)
had also recommended the book in its Syllabus for Post Graduation
Programme under CBCS conducted by the Department of Political
Science and Public Administration, School of Humanities and Social
Sciences for the year 2018-19. The Department of Sociology in
University of Mumbai had also recommended it in its Syllabus as a part
of reading Contemporary Indian Social Scientists along with the books
of Amartya Sen in Economics, Uma Chakravarthy in History and Sudhir
Kakkar in Social Psychology. The books of the petitioner were
recommended in its Syllabus in Political Science. Dr. Babasaheb
Ambedkar Marathwada University, Aurangabad, Department of English
recommended its reading in its paper ‘Literature of the Oppressed’.
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24. Thus, this book is considered as highly academic and
scholarly work by various Universities.
25. One of the Chapters of the book was published in Telugu by
EMESCO Publications, Hyderabad in 2011. The complainants were
offended by the use of the word ‘Social Smugglers’ against one
community i.e. Vysyas and lodged complaints against him in various
police stations considering that the petitioner was insulting Vedas,
Geetha and Upanishads and was criticizing the Gods and Goddesses of
the Hindus and was making demoralizing assault of Hindu women with
an intent to outrage their modesty and that he insulted the Father of the
Nation Mahatma Gandhi and the first Prime Minister Jawaharlal Nehru
as a relation of Brahmin and Komati and tried to bring a rift in between
Brahmins and Vysyas and that he also made several derogatory
arguments with Sri Swami Paripoornanda in TV Channels insulting
Hindutwa and Hindu Gods and its caste system and that it caused hurt to
their religious feelings and creating rifts in between the castes of Hindu
Society.
26. The person, who lodged the complaint in CC No.537 of 2017,
which is the subject matter of WP No.41207 of 2017 on the file of the X
Metropolitan Magistrate, Malkajgiri at Neredmet has shown his caste as
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WP No.36994 of 2017&Batch
Vysya and that he was a Hindu by religion. The complainant in Crime
No.438 of 2017, which is the subject matter of WP No.37054 of 2017
on the file of the SHO, I-Town Police Station, Karimnagar, was an
Advocate. It was also on the same lines that the author was making
allegations against Hindu Gods Ganapathi and Kubera and on the entire
Vysya community commenting on their vegetarianism and that they
were ready to be slaves to the Britishers to protect their personal
property, wherein his feelings as a member of Vysya community were
hurt and that it would constitute the offences under Sections 153-A,
295-A, 325, 500, 504, 505 of IPC.
27. Likewise the complainant in CC No.417 of 2017 on the file
of the Judicial Magistrate of First Class, Korutla, Jagtial District also
stated that he belonged to Vysya Community and that his feelings were
hurt by the opinion of the author in the book expressed against Vysya
community. He stated that as the police failed to register the case, he
lodged the private complaint and the same was taken cognizance by the
Court and numbered as CC 417 of 2017 which was the subject matter of
WP No.36998 of 2017.
28. In WP No.36994 of 2017, the complainant described himself
as a student belonging to Schedule Caste and lodged the complaint
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WP No.36994 of 2017&Batch
stating that the publication of the book by the author titled as “Samajika
Smugglerlu Komatollu” not only targeted Vysya community but also
all Hindu communities with a view to divide and raise rifts in between
the Hindu Society by taking advantages of caste systems in Hindutva,
intended to outrage the religious feelings of any class by insulting its
religion or religious beliefs with an aim to convert all BC, SC and ST
community into Christianity, so that he would get one lakh crore dollars
from foreign countries. He also stated that the author insulted
Scheduled Caste people, basing on which a case was registered as FIR
No.770 of 2017 by Malkajgiri Police of Rachakonda District for the
offences under Sections 153-A(a), 153-B(b), 295-A, 509 and Section 3
of the SC & ST (PoA) Act. A private complaint was referred to the
police, which was registered as the above crime.
29. The contention of the learned Senior Counsel for the
petitioner was that to attract the offence under Section 153-A IPC,
intention to cause disorder or incite the people to violence is
sine qua non and the prosecution had to prove prima facie the existence
of mens rea on the part of the accused and relied upon the judgment of
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the Hon’ble Apex Court in Manzar Sayeed Khan v. State of
Maharashtra and another 16, wherein it was held that:
“16. Section 153A of IPC, as extracted hereinabove, covers a
case where a person by words, either spoken or written, or
by signs or by visible representations or otherwise, promotes
or attempts to promote, disharmony or feelings of enmity,
hatred or ill-will between different religious, racial, language
or regional groups or castes or communities or acts
prejudicial to the maintenance of harmony or is likely to
disturb the public tranquility. The gist of the offence is the
intention to promote feelings of enmity or hatred between
different classes of people. The intention to cause disorder or
incite the people to violence is the sine qua non of the
offence under Section 153A of IPC and the prosecution has
to prove prima facie the existence of mens rea on the part of
the accused. The intention has to be judged primarily by the
language of the book and the circumstances in which the
book was written and published. The matter complained of
within the ambit of Section 153A must be read as a whole.
One cannot rely on strongly worded and isolated passages
for proving the charge nor indeed can one take a sentence
here and a sentence there and connect them by a meticulous
process of inferential reasoning.
17. In Ramesh Chotalal Dalal v. Union of India & Others
[AIR 1988 SC 775], this Court held that TV serial “Tamas”
did not depict communal tension and violence and the
provisions of Section 153A of IPC would not apply to it. It
16
2007 (5) SCC (1)
33
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WP No.36994 of 2017&Batch
was also not prejudicial to the national integration falling
under Section 153B of IPC. Approving the observations of
Vivian Bose, J. in Bhagvati Charan Shukla v. Provincial
Government [AIR 1947 Nagpur 1], the Court observed that
the effect of the words must be judged from the standards of
reasonable, strong-minded, firm and courageous men, and
not those of weak and vacillating minds, nor of those who
scent danger in every hostile point of view. It is the standard
of ordinary reasonable man or as they say in English Law,
“the man on the top of a clapham omnibus”. (Emphasis
supplied).
18. Again in Bilal Ahmed Kaloo v. State of A.P. [(1997) 7
SCC 431], it is held that the common feature in both the
Sections, viz., 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
and communities, 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.”
30. Thus to attract the offences under Sections 153-A and 505
IPC, as per the judgment of the Hon’ble Apex Court, there must be
involvement of atleast two groups or communities and merely inciting
the feelings of one community or group without any reference of any
community or any other group would not attract either of the two
sections.
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WP No.36994 of 2017&Batch
31. In the present cases, all the complainants belong to one
religion i.e. Hindu religion and alleged that their feelings were hurt by
the opinion of the author. But, there is no incitement of the feelings of
any other community against the said particular community to attract the
offences under Sections 153-A and 505 IPC. The Hon’ble Apex Court
also specified that the intention has to be judged primarily by the
language of the book and the matter complained of to fall within the
ambit of Section 153-A, must be read as a whole and isolated passages
cannot be relied on for proving the charge. The complainants had
picked up some of the isolated passages in one of the chapter to lodge
complaints against the petitioner herein. When the book “Post-Hindu
India” as a whole is considered, it criticizes not only one of the castes
like Vysyas, but also all other dominant castes. One caste or community
stating that their religious feelings were hurt would not attract the
offence under Section 153-A IPC. The book as a whole also would not
disclose the author inciting any of the caste against the other castes but
criticizes how the dominant communities were suppressing marginalized
communities. The book had not incited the persons belonging to other
religions like Christianity or Islam against Hindus or any of the castes in
one community against the people of other castes. The
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WP No.36994 of 2017&Batch
complaint being lodged by a Scheduled Caste person in one case would
disclose that he was not incited against the people of other castes, but,
he also felt insulted in the same manner as that of the people of other
castes.
32. Learned Senior Counsel for the petitioner also relied upon the
judgment of the Hon’ble Apex Court in Javed Ahmad Hajam v. State
of Maharashtra and another 17, wherein the Hon’ble Apex Court
extracted paras 8 to 10 of its judgment in Patricia Mukhim v. State of
Meghalaya, as follows:
“8. “It is of utmost importance to keep all speech free in
order for the truth to emerge and have a civil society.”–
Thomas Jefferson. Freedom of speech and expression
guaranteed by Article 19(1)(a) of the Constitution is a very
valuable fundamental right. However, the right is not
absolute. Reasonable restrictions can be placed on the right
of free speech and expression in the interest of sovereignty
and integrity of India, security of the State, friendly relations
with foreign States, public order, decency or morality or in
relation to contempt of Court, defamation or incitement to an
offence. Speech crime is punishable under Section 153-
A IPC. Promotion of enmity between different groups on
grounds of religion, race, place of birth, residence, language,
etc. and doing acts prejudicial to maintenance of harmony is
punishable with imprisonment which may extend to three
17
(2024) 4 SCC 156
36
Dr.GRR,J
WP No.36994 of 2017&Batchyears or with fine or with both under Section 153-A. As we
are called upon to decide whether a prima facie case is made
out against the appellant for committing offences
under Sections 153-A and 505(1)(c), it is relevant to
reproduce the provisions which are as follows:
* * *
9. Only where the written or spoken words have the
tendency of creating public disorder or disturbance of law
and order or affecting public tranquility, the law needs to
step in to prevent such an activity. The intention to cause
disorder or incite people to violence is the sine qua non of
the offence under Section 153-A IPC and the prosecution has
to prove the existence of mens rea in order to succeed.
[Balwant Singh v. State of Punjab, (1995) 3 SCC 214].
10. The gist of the offence under Section 153-A IPC is the
intention to promote feelings of enmity or hatred between
different classes of people. The intention has to be judged
primarily by the language of the piece of writing and the
circumstances in which it was written and published. The
matter complained of within the ambit of Section 153-
A must be read as a whole. One cannot rely on strongly
worded and isolated passages for proving the charge nor
indeed can one take a sentence here and a sentence there and
connect them by a meticulous process of inferential
reasoning [Manzar Sayeed Khan v. State of Maharashtra,
(2007) 5 SCC 1).”
and held that:
37
Dr.GRR,J
WP No.36994 of 2017&Batch“10. Now, coming back to Section 153-A, clause (a) of sub-
section (1) of Section 153-A of the IPC is attracted when by
words, either spoken or written or by signs or by visible
representations or otherwise, an attempt is made to promote
disharmony or feelings of enmity, hatred or ill-will between
different religious, racial, language or regional groups or
castes or communities. The promotion of disharmony,
enmity, hatred or ill will must be on the grounds of religion,
race, place of birth, residence, language, caste, community or
any other analogous grounds. Clause (b) of sub-section (1)
of Section 153-A of the IPC will apply only when an act is
committed which is prejudicial to the maintenance of
harmony between different religious, racial, language or
regional groups or castes or communities and which disturbs
or is likely to disturb the public tranquillity.”
33. The Hon’ble Apex Court further held that:
“14. The right to dissent in a legitimate and lawful manner
is an integral part of the rights guaranteed under Article
19(1)(a). Every individual must respect the right of others to
dissent. An opportunity to peacefully protest against the
decisions of the Government is an essential part of
democracy. The right to dissent in a lawful manner must be
treated as a part of the right to lead a dignified and
meaningful life guaranteed by Article 21. But the protest or
dissent must be within four corners of the modes permissible
in a democratic set-up. It is subject to reasonable restrictions
imposed in accordance with clause (2) of Article 19. In the
present case, the appellant has not at all crossed the line.
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WP No.36994 of 2017&Batch
15. The High Court has held that the possibility of stirring
up the emotions of a group of people cannot be ruled out.
The appellant’s college teachers, students, and parents were
allegedly members of the WhatsApp group. As held by
Vivian Bose, J, the effect of the words used by the appellant
on his WhatsApp status will have to be judged from the
standards of reasonable women and men. We cannot apply
the standards of people with weak and vacillating minds. Our
country has been a democratic republic for more than 75
years. The people of our country know the importance of
democratic values. Therefore, it is not possible to conclude
that the words will promote disharmony or feelings of
enmity, hatred or ill-will between different religious groups.
The test to be applied is not the effect of the words on some
individuals with weak minds or who see a danger in every
hostile point of view. The test is of the general impact of the
utterances on reasonable people who are significant in
numbers. Merely because a few individuals may develop
hatred or ill will, it will not be sufficient to attract clause (a)
of sub-section (1) of Section 153-A of the IPC.
17. Now, the time has come to enlighten and educate our
police machinery on the concept of freedom of speech and
expression guaranteed by Article 19(1)(a) of the Constitution
and the extent of reasonable restraint on their free speech and
expression. They must be sensitised about the democratic
values enshrined in our Constitution.”
34. The Hon’ble Apex Court in Life Insurance Corporation of
India v. Prof.Manubhai D. Shah 18 further held that:
18
(1991) 3 SCC 637
39
Dr.GRR,J
WP No.36994 of 2017&Batch“8. The words “freedom of speech and expression” must,
therefore, be broadly construed to include the freedom to
circulate one’s views by words of mouth or in writing or
through audio-visual instrumentalities. It, therefore, includes
the right to propagate one’s views through the print media or
through any other communication channel e.g. the radio and
the television. Every citizen of this free country, therefore,
has the right to air his or her views through the printing
and/or the electronic media subject of course to permissible
restrictions imposed under Article 19(2) of the Constitution.
The print media, the radio and the tiny screen play the role of
public educators, so vital to the growth of a healthy
democracy. Freedom to air one’s views is the lifeline of any
democratic institution and any attempt to stifle, suffocate or
gag this right would sound a death-knell to democracy and
would help usher in autocracy or dictator-ship. It cannot be
gainsaid that modern communication mediums advance
public interest by informing the public of the events and
developments that have taken place and thereby educating
the voters, a role considered significant for the vibrant
functioning of a democracy. Therefore, in any set-up, more
so in a democratic set-up like ours, dissemination of news
and views for popular consumption is a must and any
attempt to deny the same must be frowned upon unless it
falls within the Mischief of Article 19(2) of the
Constitution. It follows that a citizen for propagation of his
or her ideas has a right to publish for circulation his views in
periodicals, magazines and journals or through the electronic
media since it is well known that these communication
channels are great purveyors of news and views and
make considerable impact on the minds of the readers and
40
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WP No.36994 of 2017&Batch
viewers and are known to mould public opinion on vital
issues of national importance. Once it is conceded, and it
cannot indeed be disputed, that freedom of speech and
expression includes freedom of circulation and propagation
of ideas, there can be no doubt that the right extends to the
citizen being permitted to use the media to answer the
criticism levelled against the view propagated by him. Every
free citizen has an undoubted right to lay what sentiments he
pleases before the public; to forbid this, except to the extent
permitted by Article 19(2), b would be an inroad on his
freedom. This freedom must, however, be exercised with
circumspection and care must be taken not to trench on the
rights of other citizens or to jeopardize public interest. It is
manifest from Article 19(2) that the right conferred by
Article 19(1)(a) is subject to imposition of reasonable
restrictions in the interest of, amongst others, public order,
decency or morality or in relation to defamation or
incitement to an offense. It is, therefore, obvious that
subject to reasonable restrictions placed under Article 19(2)
a citizen has a right to publish, circulate and disseminate his
views and any attempt to thwart or deny the same would
offend Article 19(1)(a).
35. In Mahendra Singh Dhoni v. Yerraguntal Shyamsundar
and Ors. 19, the Hon’ble Apex Court while considering whether the
allegations made in the complaint constitute an offence under Section
295-A IPC, held that:
19
2017 (7) SCC 760
41
Dr.GRR,J
WP No.36994 of 2017&Batch“6. It is clear as crystal that Section 295-A does not stipulate
everything to be penalized and any and every act would
amount to insult or attempt to insult the religion or the
religious beliefs of a class of citizens. It penalises only those
acts of insults to or those varieties of attempts to insult the
religion or religious belief of a class of citizens which are
perpetrated with the deliberate and malicious intention of
outraging the religious feelings of that class of citizens.
Insults to religion offered unwittingly or carelessly or
without any deliberate or malicious intention to outrage the
religious feelings of that class do not come within the
section. The Constitution Bench has further clarified that the
said provision only punishes the aggravated form of insult to
religion when it is perpetrated with the deliberate and
malicious intention of outraging the religious feelings of that
class. Emphasis has been laid on the calculated tendency of
the said aggravated form of insult and also to disrupt the
public order to invite the penalty.
13. Before parting with the case, we would like to sound a
word of caution that the Magistrates who have been
conferred with the power of taking cognizance and issuing
summons are required to carefully scrutinize whether the
allegations made in the complaint proceeding meet the basic
ingredients of the offence; whether the concept of territorial
jurisdiction is satisfied; and further whether the accused is
really required to be summoned. This has to be treated as
the primary judicial responsibility of the court
issuing process.”
36. Section 196 Cr.P.C., prescribes that no Court shall take
cognizance of the offences under Sections 153A, 295A or
42
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WP No.36994 of 2017&Batch
sub-section (1) of Section 505 of IPC, except with the previous sanction
of the Central Government or of the State Government, which reads as
follows:
“196. Prosecution for offenses against the State and for
criminal conspiracy to commit such offence.-(1) No Court
shall take cognizance of-
(a) any offense punishable under Chapter VI or under
Section 153-A, Section 295-A or sub-section (1) of
Section 505 of the Penal Code, 1860, or
(b) a criminal conspiracy to commit such offence, or
(c) any such abetment, as is described in Section 108-Aof
the Penal Code, 1860,except with the previous sanction
of the Central Government or of the State Government.
(1-A) No Court shall take cognizance of-
(a) any offense punishable under Section 153-B or sub-
section (2) or sub-section (3) of Section 505 of the Penal
Code, 1860, oг
(b) a criminal conspiracy to commit such offence,
except with the previous sanction of the Central
Government or of the State Government or of the District
Magistrate.
(2) xxxx
(3) The Central Government or the State Government
may, before according sanction under sub-section (1) or
sub-section (1-A) and the District Magistrate may, before
according sanction under sub-section (1-A) and the State
Government or the District Magistrate may, before giving
consent under sub-section (2), order a preliminary
investigation by a police officer not being below the rank
of Inspector, in which case such police office shall have
the powers referred to in sub-section (3) of Section 155.”
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WP No.36994 of 2017&Batch
37. Thus, procedural safeguards are provided to conduct
preliminary investigation by a police officer not below the rank of
Inspector before according sanction to be issued by the respective
governments. The courts are also directed not to take cognizance of
these offences except with the previous sanction of the Central or State
Governments. But, in the present case, no preliminary investigation was
conducted and no sanction was obtained from the respective
Governments by the Courts before taking cognizance of the offences
under Sections 153A, 295 and 505 IPC, which was against the
procedural safeguards provided under Cr.P.C.
38. Section 3(1)(r) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 also requires intentional insult of a
scheduled caste or scheduled tribe member by a non-member in any
place within the public view to attract the rigor of that section. The
Hon’ble Apex Court in Pradnya Pradeep Kenkar and others v. State
of Maharashtra 20 and Balu S/o. Bajirao Galande v. State of
Maharashtra and another 21 observed that:
“It is thus clear that the word “public” not only relates to the
location defined by the word “place” but also to the subjects20
2005 (3) MHLJ 368
21
LAWS (BOM)-2006-4-104
44
Dr.GRR,J
WP No.36994 of 2017&Batchwitnessing the incidence of insult or intimidation to the
member of scheduled caste or tribe. Presence of both the
ingredients is absolutely necessary for making out the
offence of atrocity. Abuse, insult or humiliation must take
place in the presence of or in the proximity of atleast one
independent person.”
39. As seen from the contents of the complaints lodged by the
unofficial respondents, none of the ingredients of the above offences
would attract. Intentional insult or intimidation with intent to humiliate
a member of a Scheduled Caste or a Scheduled Tribe person in any
place within public view is required to attract the offence under Section
3(1)(r) of SC & ST (PoA) Act, 1989. Likewise, Section 295A or
Section 153A IPC does not penalize any or every act that tantamount to
insult or attempt to insult the religion or the religious beliefs of a class
of citizens. It penalises only those acts of insults to or those varieties of
attempts to insult the religion or religious belief of a class of citizens
which are perpetrated with the deliberate and malicious intention of
outraging the religious feelings of that class. It only punishes the
aggravated form of insult to religion when it is perpetrated with the
deliberate and malicious intention of outraging the religious feelings to
disrupt the public order and penalises such activities.
45
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WP No.36994 of 2017&Batch
40. In Gajanan Visheshwar Birjur v. Union of India 22, while
considering the books imported containing speeches and works of Mao,
besides the works of Marx, Engels and Lenin, which were specifically
banned under notification No.77, to confiscate the same, Justice B. P.
Jeevan Reddy held that:
“Before parting with this case, we must express our
unhappiness with attempts at thought control in a democratic
society like ours. Human history is witness to the fact that all
evolution and all progress is because of power of thought
and that every attempt at thought control is doomed to
failure. An idea can never be killed. Suppression can never
be a successful permanent policy. Any surface serenity it
creates is a false one. It will erupt one day. Our Constitution
permits a free trade, if we can use the expression, in ideas
and ideologies. It guarantees freedom of thought and
expression – the only limitation being a law in terms of
Clause (2) of Article 19 of the Constitution. Thought control
is alien to our constitutional scheme. To the same effect are
the observations of Robert Jackson, J. In American
Communications Association v. Douds 339 U.S. 382, 442-43
[1950], with reference to the U.S. Constitution:
“Thought control is a copyright of totalitarianism, and we
have no claim to it. It is not the function of our
Government to keep the citizen from falling into error; it
is the function of the citizen to keep the Government from
falling into error. We could justify any censorship only
when the censors are better shielded against error than the
censored.”
22
1994 (5) SCC 550
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41. In Shreya Singhal v. Union of India 23, the Hon’ble Supreme
Court held that:
“15. Article 19(1)(a) protects not only the right of primary
expression but also freedom of secondary propagation of
ideas and the freedom of circulation. The freedom of speech
and expression includes the right to acquire information and
to disseminate it. It is submitted that freedom of speech and
expression is necessary for self-expression, which is an
important means of attaining free conscience and self-
fulfillment. .
16. Freedom of speech and expression of opinion are of
paramount importance to a democracy. There is nothing in
Article 19(2) which permits the State to abridge this right on
the ground of conferring benefits upon the public in general.
It is also not open to the State to curtail or infringe the
freedom of speech of one for promoting the general welfare
of a section or a group of people, unless such action could be
justified under a law contemplated under one of the heads of
Article 19 (2). “
It was further held that:
“Interpretation of law cannot be based on community
standards.”
23
2015 (5) SCC (1)
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42. While also referring to a case in S. Khushboo v.
Kanniammal [AIR 2010 SC 3196], it was held that:
“47. In the present case, the substance of the controversy
does not really touch on whether premarital sex is socially
acceptable. Instead, the real issue of concern is the
disproportionate response to the appellant’s remarks. If the
complainants vehemently disagreed with the appellant’s
views, then they should have contested her views through the
news media or any other public platform. The law should not
be used in a manner that has chilling effects on the `freedom
of speech and expression’.”
43. Thus, it was observed by the Hon’ble Apex Court that “if the
complainants disagree with the views of the appellant, they should have
contested their views through any public platform, but should not use
the law in a manner that has effect on the freedom of speech and
expression, which is also applicable to the facts of the present case.
44. Every free citizen has a freedom to air one’s views. Every
citizen has an undoubted right to express his views. Freedom to air
one’s views is the lifeline of any democratic institution. Any attempt to
stifle, suffocate or gag this right would sound a death-knell to
democracy and would help usher in autocracy or dictatorship, as laid
down by the Hon’ble Apex Court in Life Insurance Corporation of
India v. Manubhai D. Shah (2 supra). The Hon’ble Apex Court
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WP No.36994 of 2017&Batch
always placed a broad interpretation on the value and content of Article
19(1)(a), making it subject only to the restrictions permissible under
45. A three Judge Bench of the Hon’ble Apex Court in
Secretary, Ministry of Information & Broadcasting, Government of
India and others v. Cricket Association of Bengal and others 24, held
that:
“We may now summarise the law on the freedom of speech
and expression under Article 19(1)(a) as restricted by Article
19(2). The freedom of speech and expression includes right
to acquire information and to disseminate it. Freedom of
speech and expression is necessary, for self expression
which is an important means of free conscience and self
fulfilment. It enables people to contribute to debates of social
and moral issues. It is the best way to find a truest model of
anything, since it is only through it, that the widest possible
range of ideas can circulate. It is the only vehicle of political
discourse so essential to democracy. Equally important is the
role it plays in facilitating artistic and scholarly endeavours
of all sorts. The right to communicate, therefore, includes
right to communicate through any media that is available
whether print or electronic or audio-visual such as
advertisement, movie, article, speech etc. That is why
freedom of speech and expression includes freedom of the
press. The freedom of the press in terms includes right to24
1995 (2) SCC 161
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WP No.36994 of 2017&Batchcirculate and also to determine the volume of such
circulation. This freedom includes the freedom to
communicate or circulate one’s opinion without interference
to as large a population in the country as well as abroad as is
possible to reach.”
46. Keeping in view the sanctity of the said right, which was
placed on a highest pedestal by the Hon’ble Apex Court, and the same
was also expressed, when the present book was sought to be banned in
WP (Civil) No.946 of 2017, wherein it was held that the book written by
an author is his/her right of expression and that every Author or Writer
has a fundamental right to speak out ideas freely and express his
thoughts adequately and curtailment of an individual writer/author’s
right of freedom of speech and expression should never be lightly
viewed and declined the prayer made by the petitioner therein, initiating
criminal cases against the petitioner basing on the views expressed by
him in the same book, is considered as illegal and violative of his
fundamental right under Article 19(1)(a) of the Constitution of India and
as such, considered fit to quash the same.
47. In the result, all the writ petitions are allowed quashing the
proceedings in Crime No.770 of 2017 on the file of the Malkajgiri
Police Station, Rachakonda Commissionerate; CC No.417 of 2017 on
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the file of the Judicial Magistrate of First Class at Korutla, Jagtial
District; CrimeNo.438 of 2017 on the file of the I-Town Police Station,
Karimnagar, Karimnagar District and CC No.537 of 2017 on the file of
the X Metropolitan Magistrate, Cyberabad. No order as to costs.
Miscellaneous Petitions pending, if any, shall stand closed.
___________________________
Dr. JUSTICE G.RADHA RANI
Date:13.12.2024
KTL