Kerala High Court
P.S.Sreedharan Pillai vs State Of Kerala on 8 November, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C. No.7573 of 2018
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2024:KER:84861
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
CRL.MC NO. 7573 OF 2018
CRIME NO.600/2018 OF KASABA POLICE STATION,
KOZHIKODE
AGAINST THE ORDER/JUDGMENT DATED 08.11.2018 IN
CMP NO.3806 OF 2018 OF JUDICIAL MAGISTRATE OF FIRST
CLASS - III, KOZHIKODE
PETITIONER/ACCUSED:
P.S.SREEDHARAN PILLAI
AGED 64 YEARS, S/O V.G.SUKUMARAN NAIR,
PRANAVAM, THIRUTHIYAD, KOZHIKODE - 673 004.
BY ADVS.
B.RAMAN PILLAI (SR.)
SRI.SUJESH MENON V.B.
SRI.T.K.SANDEEP
RESPONDENTS/COMPLAINANT & STATE:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
Crl.M.C. No.7573 of 2018
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HIGH COURT OF KERALA, ERNAKULAM - 31
2 SHYBIN K. NANMANADA
AGE NOT KNOWN, S/O. BHASKARAN, KUNNATH
HOUSE, NANMINDA P.O., KOZHIKODE - 673 613
BY ADV.:
SRI.SANGEETHARAJ.N.R, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 08.11.2024, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
Crl.M.C. No.7573 of 2018
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CR
P.V.KUNHIKRISHNAN, J.
----------------------------------------
Crl.M.C. No.7573 of 2018
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Dated this the 08th day of November, 2024
ORDER
The petitioner was the President of the Kerala State
Unit of Bharatiya Janatha Party (BJP). He is now
discharging his duties as the Governor of the State of
Goa. While the petitioner was serving as the Kerala State
President of BJP, he was arraigned as an accused in Crime
No.600/2018 of Kasaba Police Station, Kozhikode. The
above case was registered alleging an offence punishable
under Section 505(1)(b) of IPC.
2. The allegation against the petitioner is as
follows:-
In a speech delivered by the petitioner on
04.11.2018 at the "Bharathiya Yuva Morcha State Council
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Closure Meeting", he stated that closure of "Sabarimala
Nada" by the "Thanthri" in case of the entry by "yuvathi"
(adolescent women) will not amount to contempt of court
and that the "Thanthri" is not alone and we all are behind
the "Thanthri". It is further alleged that, this statement
which was broadcast through the media induced the
Ayyappa Bhakthas to commit criminal offences. Hence, it
is alleged that the petitioner committed the offence under
Section 505(1)(b) of IPC.
3. The 2nd respondent, submitted a complaint
before the Station House Officer, Kozhikode Kasaba Police
Station on 05.11.2018 as evident by Annexure-I. Based
on the same, an application was filed before the Judicial
First Class Magistrate Court-III, Kozhikode for getting
orders under Section 155(2) Cr.P.C for registering a case.
As per Annexure-II order, the learned Magistrate granted
sanction. Accordingly, Annexure-III FIR was registered.
According to the petitioner, even if the entire allegations
are accepted, no offence is made out against the
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petitioner. Hence, this Criminal Miscellaneous Case is
filed.
4. Heard the learned Senior Counsel Adv. Sri. B.
Raman Pillai instructed by his retaining counsel for the
petitioner. I also heard the learned Public Prosecutor Adv.
Sri. Sangeetharaj N.R., who appeared for the State.
5. The Senior Counsel Adv. B. Raman Pillai takes
me through the Annexure-I complaint and submitted that,
even if the entire allegations are accepted, the offence
under Section 505(1)(b) IPC is not made out. The learned
Senior Counsel also submitted that, the FIR is registered
based on a portion of the speech made by the petitioner.
The Senior Counsel takes me through the manuscript of
the speech which is produced as Annexure-V, and
submitted that there is nothing to attract Section 505(1)
(b) of IPC, when viewed in its entirety. The Senior Counsel
submitted that, at that time, the petitioner was also
practicing as a lawyer and a fair criticism of a judgment of
the Apex Court will not attract a criminal offence.
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6. The learned Public Prosecutor takes me
through the statement filed by the Inspector of Police,
Nadakkavu Police Station, Kozhikode and submitted that
the case is at the investigation stage and this Court may
not interfere with the investigation. The police will
thoroughly investigate the matter and thereafter do the
needful, in accordance with the law. The Public Prosecutor
takes me through some of the statements made by the
petitioner in his speech and submitted that the same is
alarming to the public and could induce individuals to
commit an offence against the State or against the Public
tranquillity. Therefore, the offence under Section 505(1)
(b) IPC is made out, is the submission of the Public
Prosecutor.
7. This Court considered the contentions of the
petitioner and the Public Prosecutor. The offence alleged
in the First Information Statement is under Section 505(1)
(b) IPC. It will be better to extract Section 505(1)(b) of
IPC:
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"505. Statements conducing to public
mischief. (1) Whoever makes, publishes or
circulates any statement, rumour or report,--
(a) with intent to cause, or which is likely to cause,
any officer, soldier, sailor or airman in the Army,
Navy or Air Force of India to mutiny or otherwise
disregard or fail in his duty as such; or
(b) with intent to cause, or which is likely to cause,
fear or alarm to the public, or to any section of the
public whereby any person may be induced to
commit an offence against the State or against the
public tranquillity; or
(c) with intent to incite, or which is likely to incite,
any class or community of persons to commit any
offence against any other class or community,
shall be punished with imprisonment which may
extend to three years, or with fine, or with both."
(underline supplied)
8. A perusal of the above-mentioned Section
would show that the ingredients to attract Section
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505(1)(b) are the following:
"(a) the accused made, published, or circulated,
a statement, rumour, or report;
(b) he did so with intent to cause, or which was
likely to cause, fear or alarm to the public or
to a section of the public; and
(c) thereby a person may be induced to commit
an offence against the
(i) State, or
(ii) public tranquillity"
9. From the above, it is clear that, if the accused
made, published or circulated a statement, rumour or
report with the intent to cause or which was likely to
cause fear or alarm to the public or to a section of the
public and thereby a person may be induced to commit
an offence against the State or public tranquillity, the
offence is made out.
10. It is an admitted fact that, the petitioner was
making a speech in a conference hall of Alakapuri
Restaurant at Kozhikode. It is also an admitted fact that,
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he was inaugurating a meeting of "Yuva Morcha
Samsthana Samithi", which is a youth wing of BJP. To
attract the offence under Section 505(1)(b) IPC, the
accused should make a speech with intent to cause, or
which was likely to cause "fear or alarm" to the public or a
section of the public. "Fear or alarm" to the public refers
to causing concern, anxiety or apprehension among the
general public or purportedly disrupting the social order
or stability. The other words used in the section are
"public or to a section of public". The term "public" has
various meanings depending on the context where it is
used. The general definition of "public" is relating to the
people as a whole, especially citizens of a country or a
community. It also includes the people who are accessible
by everyone, but not private or exclusive group of people.
The question to be decided is that, when the petitioner
was inaugurating a meeting held in the conference hall of
a hotel and that also the meeting of the youth wing of BJP,
can it be said that the accused made, published or
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circulated a statement, rumour or report with intent to
cause, or which was likely to cause, fear or alarm to the
public or to a section of the public?
11. I am of the considered opinion that, the same
will not attract the offence under Section 505(1)(b) IPC. If
the meeting had been held in a public place accessible to
all, and the petitioner had made a speech that met the
other ingredients of Section 505(1)(b), the offence may
attract. But, here is a case where the petitioner was only
making a speech in a conference hall and that also in a
meeting of the youth wing of BJP. In such circumstances,
it cannot be said that the petitioner made a speech which
is likely to cause fear or alarm to the "public". It is true
that the Section 505(1)(b) says "fear or alarm to the
public or to any section of the public". Then the question
is whether the members of the meeting can be termed as
a "section of the public"?. On a literal word meaning, it
may be correct. But it is to be noted that the petitioner
was inaugurating a meeting of "Yuva Morcha Samsthana
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Samithi", which is a youth wing of BJP. Nobody has access
to that meeting, except the members of "Yuvajana
Morcha". It happened in a conference hall of a hotel. As I
mentioned earlier, the general definition of "public"
relates to the people as a whole, especially citizens of a
country or a community. It also includes the people who
are accessible by everyone, but not private or exclusive
group of people. So the participants of a meeting of the
youth wing of BJP in a conference hall of a hotel cannot be
termed as a "section of the public" used in the context of
Section 505(1)(b) IPC. The participants of such meetings
may be a "section of the public", but they will not come
within the meaning "section of the public" used in the
context of Section 505(1)(b) IPC.
12. It is the case of the police that the above
speech of the petitioner was telecast by the news
channels and circulated through social media. The police
have no case that the petitioner invited the press to cover
the speech. Simply because the speech, made by the
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Petitioner in a hotel, was published by the news channels
and media, the petitioner cannot be held liable for the
offences punishable under Section 505(1)(b) IPC. Media
has got a right to publish news and therefore media also
cannot be blamed.
13. This Court also perused the speech made by
the petitioner, which is produced in a manuscript as
evident by Annexure-V. The Apex Court declared that
women can enter Sabarimala without any restriction
regarding their age. The petitioner stated in his speech
that every effort should be made to prevent women
between the age of 10 and 50 from going to Sabarimala.
However, it is clearly stated by the petitioner in the
speech itself as evident by Annexure-V that it should not
be treated as a war, and that in war, there will be a fight,
and people may die. He stated that this fight shall not
escalate to that extent, and that this was his personal
opinion. It was also stated by him that the Sabarimala
"Thanthri" contacted him over phone and asked whether,
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if a woman between the age of 10 and 50 came to
Sannidhanam, and at that stage, if the doors of the
temple were closed, would it amount to contempt.
Admittedly, the petitioner is a lawyer which may be the
reason why the Thanthri contacted him. In his speech,
the petitioner stated that he informed the Thanthri that it
would not amount to contempt of Court and even if it is
contempt, it would not be just the Thanthri, but several
others as well will be behind him. In the speech, he also
stated that all religions are in support of the BJP's stance.
He further stated that he is going to meet with the
Christian priests and the Muslim community and will fight
to protect the beliefs of Sabarimala with the support of all.
Therefore, there are statements in the speech which
would show that the attempt is to unite all communities to
protect the interests of Hindus. Therefore it cannot be
said that the speech made by the petitioner, that also in a
conference hall, to the youth wing of BJP will cause fear or
alarm to the public or to a section of the public.
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14. While assessing a speech, the Court cannot
take isolated specific phrases or words. The Court has to
assess a speech in the totality of the circumstances. The
Court has to consider the meaning, intent and impact of
the speech, instead of isolating one or two sentences. The
Court has to assess the speech as a whole, rather than
taking fragmented parts of it. "The art of public speaking
is the art of forgetting yourself in the presence of others"
is one of the famous quoting about speeches. Nowadays
there is a trend to sensationalise speeches by taking
isolated sentences in it, which is to be deprecated.
Coming back to the speech of the petitioner, I am of the
considered opinion that, when the speech as a whole is
taken, the ingredients of Section 505(1)(b) are not
attracted. Citizens may disagree with the views expressed
by the petitioner. However, disagreement with the views
presented in a speech is not a ground for initiating
prosecution under Section 505(1)(b) IPC.
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15. Moreover, one of the ingredients to attract
Section 505(1)(b) is that the statement made by the
accused must be likely to cause fear or alarm to the
public or to a section of the public and thereby induce a
person to commit an offence against the State or public
tranquillity. A perusal of the Annexure-I complaint would
not show that there is any such instance where a person
was induced to commit an offence against the State or
public tranquillity because of the speech alone. In such
circumstances, I am of the considered opinion that basic
ingredients of Section 505(1)(b) IPC are not attracted.
16. Admittedly, the petitioner and his party was
not agreeing with the judgment of the Apex Court on the
entry of adolescent women to the Sabarimala
Sannidhanam. A fair and reasonable criticism of a
judgment, which is a public document, would not
constitute contempt or attract criminal offences. The
Apex Court in Hari Singh Nagra and Others v. Kapil
Sibal and Others [2010 KHC 4511] observed that:
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"9. There is no manner of doubt that Judges are
accountable to the society and their accountability
must be judged by their conscience and oath of
their office. Any criticism about the judicial system
or the judges which hampers the administration of
justice or brings administration of justice into
ridicule must be prevented. The contempt of court
proceedings arise out of that attempt. National
interest requires that all criticisms of the judiciary
must be strictly rational and sober and proceed
from the highest motives without being colored by
any partisan spirit or tactics. There is no manner of
doubt that freedom of expression as contemplated
by Art. 19(1)(a) of the Constitution is available to
the Press and to criticize a judgment fairly albeit
fiercely is no crime but a necessary right. A fair
and reasonable criticism of a judgment which is a
public document or which is a public act of a Judge
concerned with administration of justice would not
constitute contempt. In fact, such fair and
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reasonable criticism must be encouraged because
after all no one, much less Judges, can claim
infallibility. The Message examined the evils
prevailing in the judicial system and was written
with an object to achieve maintenance of purity in
the administration of justice. The message was
exposition of Mr. Sibal's ideology and he had shown
the corrective measures to be adopted to get the
institution rid of the shortcomings mentioned by
him."
17. The Apex Court observed that there is no
manner of doubt that freedom of expression, as
contemplated by Article 19(1)(a) of the Constitution, is
available to the press and to criticize a judgment fairly is
not a crime but a necessary right. A fair and reasonable
criticism of a judgment, which is a public document or
which is a public act of a judge concerned with the
administration of justice, could not constitute contempt.
The Apex Court also observed that such fair and
reasonable criticism must be encouraged because after
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all, no one, much less judges can claim infallibility. In
such circumstances, I am of the considered opinion that,
even if the entire allegations in Annexure III FIR are
accepted in toto, no offence under Section 505(1)(b) IPC
is made out against the petitioner.
18. In addition to all above, the petitioner is now
discharging his duty as a Governor of the State of Goa.
Article 361 of the Constitution says that the President or
the Governor or Rajpramukh of a State shall not be
answerable to any Court for the exercise and performance
of the powers and duties of his office or for any act done
or purporting to be done by him in the exercise and
performance of those powers and duties. Article 361 (2)
says that no criminal proceedings whatsoever shall be
instituted or continued against the President, or the
Governor of a State, in any Court during his term of office.
Therefore, the petitioner is entitled to immunity under
Article 361 of the Constitution as long as he remains the
Governor of Goa.
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19. The upshot of the above discussion is that
the continuation of further proceedings in Annexure-III
FIR registered against the petitioner is not necessary.
Therefore, this Criminal Miscellaneous Case is
allowed. All further proceedings in Annexure-III FIR are
quashed.
Sd/-
P.V.KUNHIKRISHNAN
nvj/sjb JUDGE
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PETITIONER ANNEXURES
ANNEXURE-I A TRUE COPY OF THE COMPLAINT FILED
BY THE 2ND RESPONDENT BEFORE
SHO,KOZHIKODE CUSBA STATION DATED
05.11.2018
ANNEXURE-II A TRUE COPY OF HE ORDER IN
C.M.P.NO.3806/2018 ON THE FILES OF
JUDICIAL FIRST CLASS MAGISTRATE
COURT-III, KOZHIKODE DATED
08.11.2018
ANNEXURE-III A TRUE COPY OF THE F.I.R. IN CRIME
600/2018 OF KOZHIKODE CUSBA POLICE
STATION DATED 08.11.2018
ANNEXURE-IV A TRUE COPY OF THE C.D CONTAINING
THE VIDEO OF THE SPEECH MADE BY THE
PETITIONER AT THE MEETING ON
04.11.2018
ANNEXURE-V RELEVANT PORTIONS OF THE TRANSCRIPT
OF ANNEXURE-IV VIDEOS
RESPONDENTS EXHIBITS : NIL
//TRUE COPY// PA TO JUDGE
