Madras High Court
J.Vivek @ Vivekanandhan vs State Of Tamil Nadu on 8 November, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
CRL.A.No.280 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.11.2024
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
CRL.A.No.280 of 2024
and
CRL.M.P.No.4219 of 2024
J.Vivek @ Vivekanandhan ... Appellant
Vs.
State of Tamil Nadu,
Rep. by The Inspector of Police,
CCB, Veppery, Chennai.
Cr.No.369/2017 ... Respondent
Prayer: Criminal Appeal filed under Section 21 of National Investigation
Agency Act, 2008, to call for the records in Crl.M.P.No.2875 of 2022 in
S.C.No.3 of 2022 dated 14.12.2023 on the file of the Principal Sessions Judge
of Kancheepuram District at Chengalpattu and set aside same.
For Appellant : Mr.R.Sankarasubbu
For Respondent : Mr.S.Raja Kumar
Additional Public Prosecutor
Page 1 of 10
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CRL.A.No.280 of 2024
JUDGMENT
[Judgment was delivered by S.M.SUBRAMANIAM, J.]
Under assail is the order dated 14th December, 2023 passed in
Crl.M.P.No.2875 of 2023 in S.C.No.3 of 2022.
2. The appellant is the accused in S.C.No.3 of 2022. He moved an
application under Section 227 of Criminal Procedure Code seeking discharge.
Since the Trial Court rejected the petition, the present criminal appeal came
to be instituted before this Court.
3. Mr.R.Sankarasubbu, learned counsel for the appellant would mainly
contend that mere speech not resulting into an immediate violence does not
attract any of the provisions of the Unlawful Activities (Prevention) Act,
1967 [hereinafter referred as ‘UA(P) Act’]. It is an interview given by the
appellant in a private television channel and he answered the questions asked
by the anchor during the programme. Since he was answering the questions,
he has not committed any offence under any of the provisions registered
against the appellant.
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4. In order to substantiate the said ground, Mr.R.Sankarasubbu, learned
counsel would rely on the judgment of the Hon’ble Supreme Court of India in
the case of S.G.Vombatkere vs. Union of India1, wherein, the Apex Court
issued directions in realm that “All pending trials, appeals and proceedings
with respect to the charge framed under Section 124A of Indian Penal Code
(IPC) be kept in abeyance. Adjudication with respect to other sections, if any,
could proceed if the Courts of the opinion that no prejudice would be caused
to the accused”.
5. In the present case, mere speech in a television program, more
specially, in response to questions posed by an anchor, cannot not be a
ground to register a case under UA(P) Act. Therefore, by applying the said
principles, the Trial Court ought to have discharged the appellant.
6. The learned counsel for the appellant would submit that the case was
registered after a lapse of about three and half months from the date of
broadcast of the interview to the private television channel i.e., on
16.07.2014. However, the case was registered on 30.10.2017. He would rely
on the judgment of the Constitution Bench of the Hon’ble Supreme Court of
1. W.P.(C).No.688 of 2021 dated 11.05.2022
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India in the case of Kedar Nath Singh vs. State of Bihar2. Relying on the
above judgment, the learned counsel for the appellant would submit that the
Trial Court has not considered any of the principles laid down and therefore,
the present appeal is to be considered.
7. Mr.S.Raja Kumar, learned Additional Public Prosecutor appearing
on behalf of the respondent / Police would strenuously oppose by stating that
the speech made by the appellant on a private television channel would
attract the provisions of the UA(P) Act. The judgments relied upon by the
appellant have no application with reference to the facts. Since the
appellant/accused has not denied making the televised statements, he cannot
seek discharge but must face trial.
8. That apart, Section 124A and the directions in realm issued by the
Apex Court cannot be applied in the facts of the present case, since the case
has been registered under UA(P) Act. This position has been clarified by the
Hon'ble Supreme Court in the case of Arup Bhuyan vs. State of Assam and
Another3. That being the factum, the present appeal is to be rejected.
2. 1962 AIR 955
3. (2023) 8 S.C.R. 496
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9. We have considered the rival submissions made between to the
parties to the lis on hand.
10. The Trial Court considered the counter affidavit filed by the
prosecution side, which alleged that the appellant / accused is a cadre of the
banned CPI (Maoist) Organisation. In his televised interview on Sathyam
Television's 'Porali' program on July 16, 2017, at 10:30 hours, the appellant /
accused responded to 31 questions from the channel anchor. His responses
deliberately and intentionally conveyed hateful and malignant speech against
the lawfully established Government. The entire speech in the said interview
was in support of the banned organisation CPI (Maoist) and he has instigated
the general public to take law into their own hands, and his speech shows his
intention to induce the people to disobey law and to cause rioting, public
disorder and cause fear amongst general public. The act of the accused would
induce any individual to commit offences against the State or Public
tranquility or likely to insight any class or community or individual.
11. In the context of the above findings of the Trial Court made based
on the counter filed by the prosecution, this Court has to examine, whether
speech not resulting in immediate violence is sufficient to invoke the
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provisions of the Unlawful Activities (Prevention) Act, 1967 or not.
12. Let us examine the provisions of the UA(P) Act. Section 2(o) of
UA(P) Act defines “Unlawful Activity”, “in relation to an individual or
association, means any action taken by such individual or association
(whether by committing an act or by words, either spoken or written, or by
signs or by visible representation or otherwise)”.
13. Section 13 provides “Punishment for unlawful activities” and Sub
Section (a) states that “Whoever takes part in or commits or advocates, abets,
advises or incites the commission of, any unlawful activity, shall be
punishable with imprisonment for a term which may extend to seven years
and shall also be liable to fine”.
14. With reference to definition under Section 2(o) and the punishment
under Section 13(1) it is necessary to consider for this Court, what amounts
to “terrorist act”. The terrorist act has been enumerated under Section 15. Sub
Section (1) to Section 15 stipulates that “Whoever does any act with intent to
threaten or likely to threaten the unity, integrity, security, economic security,
or sovereignty of India or with intent to strike terror or likely to strike terror
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in the people or any section of the people in India or in any foreign country”.
15. Conjoint reading of Sections 13 and 15 would project that likely to
threaten the unity, integrity and security would be sufficient for the purpose
of invoking the provisions of UA(P) Act. Even the definition to the term
“unlawful activity” under Section 2(o) states that an individual or association
committing an act or by words, either spoken or written or by signs or by
visible representation or otherwise. Thus, the scope of the provisions of the
UA(P) Act is wider enough to cover the hate speeches made against the
unity, integrity, security, economic security or sovereignty of India with
intend to strike to terror or likely to strike terror in the people. Even hate
speeches or sign or writings likely to strike terror would by sufficient to
prosecute a person.
16. The judgments relied on by the appellant are not only
distinguishable with reference to the facts of the present case and have no
application, as the appellant has not denied the television interview given to a
private channel. Moreover, the counter affidavit filed by the respondents even
before this Court would reveals that the speeches led to prosecution.
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17. The Trial Court has rightly considered the scope of discharge
petition under Section 227 of Criminal Procedure Code. It is amply made
clear that if there is no sufficient ground for proceedings against the accused,
then alone he can be discharged, but not otherwise. The case on hand cannot
be construed as one that of no sufficient ground, but there are materials
available for the purpose of conducting trial.
18. That being so, we do not find any infirmity in respect of the
findings arrived by the Trial Court in the impugned order. However, we made
it clear that Trial Court may proceed with the trial uninfluenced by the
observations made by this Court, if any relating to facts and conclude the trial
as expeditiously as possible on merits and by following procedures as
contemplated.
19. With these observations, the impugned order dated 14th December,
2023 passed in Crl.M.P.No.2875 of 2023 in S.C.No.3 of 2022 stands
confirmed and the Criminal Appeal is dismissed. Consequently, connected
Miscellaneous Petition is closed.
[S.M.S., J.] [M.J.R., J.]
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08.11.2024
Jeni
Index : Yes
Speaking order / Non-speaking order
Neutral Citation : Yes
To
1.The Principal Sessions Judge of Kancheepuram District
Chengalpattu.
2.The Inspector of Police,
State of Tamil Nadu,
CCB, Veppery, Chennai.
3.The Additional Public Prosecutor,
High Court of Madras,
Chennai – 600 104.
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S.M.SUBRAMANIAM, J.
and
M.JOTHIRAMAN, J.
Jeni
08.11.2024
https://www.mhc.tn.gov.in/judis
