Madras High Court: While stating that, Jug Suraiya, Bachi Karkaria, E.P.Unny and G.Sampath … if any one of them, or for that matter any satirist or cartoonist had authored this judgement, they would have proposed a momentous amendment to the Constitution of India to incorporate sub-clause (l) in Article 51-A, G.R. Swaminathan, J., expressed that to Article 51-A, the hypothetical author would have added one more fundamental duty – duty to laugh.

Bench expressed that the correlative right to be funny can be mined in Article 19 (1)(a) of the Constitution of India (the use of crypto vocabulary to be forgiven).

Being funny is one thing and poking fun at another is different altogether.

Expressing further, the Court stated:

“Laugh at what?” is a serious question. This is because we have holy cows grazing all over from Varanasi to Vadipatty. One dare not poke fun at them. There is however no single catalogue of holy cows. It varies from person to person and from region to region. A real cow, even if terribly underfed and emaciated, shall be holy in Yogi’s terrain. In West Bengal, Tagore is such an iconic figure that Khushwant Singh learnt the lesson at some cost. Coming to my own Tamil Desh, the all-time iconoclast “Periyar” Shri. E.V.Ramasamy is a super-holy cow. In today’s Kerala, Marx and Lenin are beyond the bounds of criticism or satire. Chhatrapati Shivaji and Veer Savarkar enjoy a similar immunity in Maharashtra. But all over India, there is one ultimate holy cow and that is “national security”.

Background and Analysis

In the present matter, the petitioner went on a sightseeing pleasure trip with his daughter and son-in-law and further put out the photographs taken on his Facebook page. He gave the caption,

“Trip to Sirumalai for shooting practice”

Revolutionaries, whether real or phoney, are not usually credited with any sense of humour (or at least this is the stereotype).

Petitioner tried to be funny and perhaps it was his maiden attempt to humour.

Though the Vadipatty Police did not find it to be a joke and they thought the petitioner was making preparations to wage war against the State. Hence a case was registered against the petitioner for the offences under Sections 120B, 122, 505(1)(b) and 507 of the Penal Code, 1860. They even arrested the petitioner and produced him before the jurisdictional magistrate for remanding him to custody.

Mercifully, the Judicial Magistrate had the good sense to refuse the remand and he passed a detailed rejection order by keeping in mind the decision of Madras High Court in State v. Nakeeran Gopal, 2019 SCC OnLine Mad 42.

High Court stated that it wishes other magistrates in the State of Tamil Nadu to act likewise.

The police and the prosecution will seek remand in every case. It is for the magistrate to satisfy herself that the arrestee deserves to be remanded. Requests for remand must be decided on the touchstone of Section 41 of Cr.PC and Article 21 of the Constitution.

Further, the Court stated that thanks to the judicious conduct so well exhibited by the Judicial Magistrate the petitioner escaped incarceration by a whisker.

Decision and Conclusion

The Bench stated that for an act to constitute a crime, there are four stages:

i) intention,

ii) preparation,

iii) attempt and

iv) accomplishment

To wage war would require several steps and crossing of stages.

There has to be mobilisation of men as well as accumulation of arms and ammunition. That would require a concerted effort.

Court noted that except for giving the title mentioned above to the photographs amateurishly taken on the occasion of his trip to Sirumalai Hills, the petitioner did nothing else. No weapon or prescribed material was recovered from the petitioner.

Petitioner neither intended to wage war nor did he commit any act towards preparation therefor.

Bench opined that any normal and reasonable person coming across the Facebook post would have laughed it off.

“Invocation of Section 507 IPC makes me laugh.”

High Court stated that Section 507 IPC can be invoked only if the person sending the communication had concealed his identity. The communication must be anonymous.

In the present matter, the petitioner had posted the photographs along with the caption on his Facebook page. He had not concealed his identity. There was nothing anonymous about the act in question.

None of the ingredients set out in Sections 122, 505(1) (b) and Section 507 are present in the instant case.

Section 120 B of IPC cannot be invoked for two reasons:

 Firstly, the petitioner is the sole accused. To constitute the offence of conspiracy, there must be a meeting of two or more minds. One cannot conspire with oneself.

Secondly, conspiracy is hatched to commit an offence mentioned in the Section. When the ingredients of the primary offences have been shown to be non-existent, the prosecution cannot hang on to Section 120B IPC alone.

High Court held that the very registration of the impugned FIR was absurd and an abuse of legal process and the same stood quashed. [Mathivanan v. Inspector of Police, 2021 SCC OnLine Mad 6458, decided on 17-12-2021]

Advocates before the Court:

For Petitioner: Mr. Henri Tiphagne

For Respondents: Mr. T. Senthil Kumar, Additional Public Prosecutor.

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