Research › Search › Judgment

Madras High Court · body

2008 DIGILAW 3399 (MAD)

R. Venkatapathy v. State

2008-09-16

R.REGUPATHI

body2008
O R D E R:- The petitioners/accused pray for grant of anticipatory bail under Section 438 Cr.P.C. subject to the conditions mentioned therein, in Crime No.474/08 pending investigation/enquiry for the offence punishable under Section-153(A) IPC. on the file of the respondent police. 2. The petitioners herein are the Publisher, Editor and Printer respectively of the Tamil Daily 'Dhina Malar' (hereinafter referred to as the 'Daily'). Subsequent to the publication of a caricature attributed to the Prophet Mohammed (the Prophet of Islam) in the supplementary titled 'computer malar' of the Daily, Vellore Edition, dated 01.09.2008, Muslim community in the State took exception for such publication and staged massive demonstrations including one before the Daily's Office at Vellore which resulted in a big uproar adversely affecting the public order and tranquility and registration of the case against the petitioners. 3. Learned Senior Counsel for the petitioners submits that such Publication has been made without any mala fide intention or ulterior motive and in fact, the petitioners were not even aware of the caricature appeared in the Vellore Edition. He states that the cartoon has been borrowed from an internet website 'you tube' and there was no comment/reference/literature as to the personality of the Prophet Mohammed. He stressed that what was published is just a borrowal from 'you tube' and beyond that, there is no derogatory statement available to draw any adverse inference against the petitioners. Further, after coming to know about the sweeping agitations by the Muslim Community, clarifications have been published in the Issues of the Daily dated 02.09.2008, 03.09.2008 and 05.09.2008 and apart from that, the message conveyed by the Prophet Mohammed with regard to the virtues of Ramadan Fasting has been elaborately stated with the timings for observance and breaking of the Fasting. In such circumstances, motive or mala fide intention cannot be attributed to the petitioners for publication of the Cartoon, which has been done by mistake. Moreover, the person concerned, who is in charge of Computer Malar by name Dilipkumar, has been arrested on 02.09.2008 and remanded to judicial custody. In such circumstances, motive or mala fide intention cannot be attributed to the petitioners for publication of the Cartoon, which has been done by mistake. Moreover, the person concerned, who is in charge of Computer Malar by name Dilipkumar, has been arrested on 02.09.2008 and remanded to judicial custody. According to him, clarifications have been published in the subsequent Issues, the Daily has tendered apology for the mistake and by way of good gesture, the Daily also endeavoured to convey the Message of the Prophet of Islam about the glory and virtues of fasting and sanctity of the month of Ramadan; apart from that, the petitioners, aged about 78, 76 and 73 respectively, are law abiding citizens and they give an undertaking that such instance of misdoing would not recur in future; and at any rate, the offence under Section 153-A IPC is not attracted; in such circumstances, the relief sought for may be granted. 4. Mr.M.Samsudeen Qasimi, Chief Imam of Makka Masjid, Mount Road, Chennai, has filed a petition to intervene in this matter as party-in-person and made his oral submissions also. By relying on the typed set of papers filed before Court on his behalf, he submitted that this is not the first occasion for the Daily to publish such derogatory material against Islam, its Prophet or the Muslims but observably, there are many instances to suggest that it has been the trend of the Daily to indulge in such sinister activities. He pointed out that in the Edition of the Daily dated 05.10.2001, a cartoon of the Prophet and one of His prime companions Abubakar Siddique was published and the message left was totally against the very basic tenets of Islam. In order to show that the Daily used to publish news items without verification of facts and contrary to truth, he adverted to the proceedings in C.C. No.5724 of 2001, wherein, the case of the complainant that the imputation concerning him was published by the accused /Daily with an intention to harm his reputation was proved and the accused viz., Daily's Editor and Publisher, were found guilty under Section 500 IPC. and sentenced to undergo simple imprisonment for three months. and sentenced to undergo simple imprisonment for three months. Likewise, in C.S. No.773 of 2003 preferred by one Gulam Mohammed against the Editor and Publisher of the Daily for having published news-item hurting the feelings of the Muslim community, a sum of Rs.1,00,000/- was directed to be paid towards damages. Further, having been offended by a news item appeared in the Daily against Muslims, a case is said to have taken on file by the Judicial Magistrate No.1, Madurai, in C.C. No.105 of 2004. The Chief Imam, referring to the Daily's Edition dated 22.02.1998, pointed out that the Daily citing a Urdu pamphlet totally misconstrued and misinterpreted the Urdu version with the caption 'Rupees one lakh for the youth to promote terrorism', while in fact the message presented in the pamphlet is a caution to the muslim youth not to fall prey to the callers towards terror as terrorism is in no way recognised by the religion of Islam. Though by letter dated 17.04.1998, the Daily was apprised of the wrong message conveyed by distorting the contents of the Urdu Pamphlet and requested to make clarification, there was no response at all from the Daily. Ultimately, he submitted that since the present case is not an isolated instance and it is continuation of a chain of incidents as referred to by him, ulterior motive on the part of the petitioners to defame the Islamic faith, its Prophet and Muslims is succinctly clear; that being so, in a boiling situation, mere tendering of apology would not wipe out the defamation made against the Prophet Mohammed and it is a case where the circumstances warrant that the petitioners must be subjected to custodial interrogation so that such deplorable instances affecting communal harmony would not recur in future. 5. 5. One R.A.Sakoor has also filed a petition to intervene in the matter and the learned counsel appearing for him submitted that the petitioners/accused cannot feign ignorance or innocence, for, in respect of the offending material posted in a Danish News paper, there were world-wide protests and demonstrations resulting in death of about 150 persons and dreadful sequences of torching of buildings and embassies and the Daily, which also published news-items with regard to such incidents, was well aware of the impact the offending material had on the Muslim world and in spite of that, publishing of such material which is reproduction of the Danish cartoons on 'youtube' clearly speaks a lot about the hard and hostile approach of the Daily towards the Muslim community. Evidently, the Muslim community was provoked to a considerable extent and due to the sequences that followed, hatred was created in the minds of the people belonging to different communities. Shamming apologies were tendered only in order to snap out of the tribulation and such strategy adopted by the Daily should not be encouraged as it would set a bad trend. He also stressed that this is not the first time the Daily is making such publications and because of its ongoing activities, people have been divided, thereby, hatred is created among different communities and if the petitioners escape custodial interrogation and investigation is not pursued in a proper perspective in a sensitive case of this nature, there is every possibility of recurrence of such instances in future as the Daily has its own record of involvement in such wicked activities. In spite of the fact that the Editor and Publisher of the Daily have been punished by court and directed to pay damages in respect of such earlier instances, the petitioners have not corrected themselves and on the contrary, continue to publish defamatory and provocative materials to disturb communal harmony. According to him, this is a peculiar matter wherein though the case has been registered for an offence under Section 153-A IPC., on the face of the materials available, other provisions of the IPC. are also attracted and the investigation may bring out wealth of materials in that regard. According to him, in such circumstances, in the interest of communal harmony and preservation of public peace, it is absolutely necessary that the petitioners/accused are arrested and subjected to custodial interrogation. 6. are also attracted and the investigation may bring out wealth of materials in that regard. According to him, in such circumstances, in the interest of communal harmony and preservation of public peace, it is absolutely necessary that the petitioners/accused are arrested and subjected to custodial interrogation. 6. Learned Government Advocate has filed a counter affidavit and submitted that, because of publication of the offending caricature attributed to the Prophet of Islam, the sentiments of the Muslim community got affected to a great extent. The law and order situation was jeopardised due to the incessant processions, road-rokos and agitations and the sequences that followed led to eruption of clash between the communities. Due to the timely intervention of the police, the situation was brought under control to a considerable extent and there is only a transient silence prevailing now. It is submitted that the initial investigation revealed that only after the instructions of the petitioners who are residing at Chennai, the publication was specifically made in the Vellore Edition of the Daily. By stating that the offending material has created much havoc and may also lead to clash between the communities, he submits that it is not desirable to release the petitioners on anticipatory bail particularly when the State, taking note of seriousness of the case, has decided to transfer the case to Chennai for investigation in a proper perspective. 7. I have carefully perused the materials on record and given thoughtful consideration to the respective submissions made on either side. 8. It is unfortunate to note that the caricature attributed to the Prophet Mohammed, hurting and affecting the feelings of the Muslim community, has been published during the commencement of the Ramadan fasting. The image depicts the Prophet Mohammed in a Turban with the inscription of Islamic declaration of faith in Arabic Text ie., "La Ilaha Illallah Muhammad-ur-Rasoolullah", meaning, "There is none worthy of worship save God and Mohammed is His Messenger", and with a live dynamite stick. Though the image is said to have been borrowed from the internet website 'youtube' and it is argued that there is no reference to the Prophet Mohammed, a perusal of the supplementary shows that just above the image, there is a title in bold letters 'Jyllands-Posten Muhammad Cartoons'. Though the image is said to have been borrowed from the internet website 'youtube' and it is argued that there is no reference to the Prophet Mohammed, a perusal of the supplementary shows that just above the image, there is a title in bold letters 'Jyllands-Posten Muhammad Cartoons'. Jyllands Posten is the Danish Newspaper which published about 12 cartoons of the Prophet Mohammed which led to devastating consequences around the world including the Indian Subcontinent. The combustible consequences that followed the publication were highlighted in the print media and electronic media. That being so, as rightly pointed out, the petitioners, whose Daily had also published news-item about the impact of such cartoons, should not have indulged in publishing the reproduction of the cartoon since an average person, applying contemporary community standards, would find that such publication would only appeal to sinister interests. Moreover, the offending material was published on the date when the Ramadan Fasting commenced, which suggests a strong and compelling motive on the part of the petitioners. On a meticulous perusal of the materials, I could find that on earlier occasions, courts have imposed damages and inflicted punishment for the derogatory materials published by the Daily. No doubt, everyone has the right to freedom of expression, a right which includes freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in form of art or through any other media of his/her choice. At the same time, it does not mean such right is unrestrained, unfettered or unrestricted, for, this right guaranteed by the Constitution is subject to various restrictions like respect of the rights or reputation of others, protection of national security or of public order/public health/morals etc. In other words, such right is subject to 'reasonable restriction' corresponding to the societal norms of decency and co-existence of diverse communities under the constitutional shade. India is a Sovereign Socialist Secular Democratic Republic and one of the objectives of the Constitution, as could be seen from the Preamble, is to promote among all citizens fraternity assuring the dignity of the individual and the unity and integrity of the Nation. India is a Sovereign Socialist Secular Democratic Republic and one of the objectives of the Constitution, as could be seen from the Preamble, is to promote among all citizens fraternity assuring the dignity of the individual and the unity and integrity of the Nation. The media which is considered to be one of the pillars of the democracy is not expected to strive for destroying the secular thread based on the hailed structure of unity in diversity by creating hatred among communities through its publication. The freedom given to Press should not be treated as a licence to denigrate the feelings of a section of people and to divide the communities for sleazy gains. While publishing sensitive matters and describing the images and works of illustrious personalities who influenced the human history, utmost care and caution must be exercised since harebrained attitude in such matters would have devastating consequences upsetting public order and peace. Allowing such practice would ultimately result in adverse to the interest of the national integrity and put at peril the constitutional aspirations. This type of service by a press media cannot be regarded as a public service but a disservice to the public by opening doors for internal violence and taking away the goodwill prevailing among different sections of people. It is worthwhile here to extract the relevant provision of the Indian Penal Code viz., Section 153-A IPC. " 153A. This type of service by a press media cannot be regarded as a public service but a disservice to the public by opening doors for internal violence and taking away the goodwill prevailing among different sections of people. It is worthwhile here to extract the relevant provision of the Indian Penal Code viz., Section 153-A IPC. " 153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony:-(1) Whoever (a) By words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place or birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or (b) Commits any act 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 tranquility, or (c)* * * * * shall be punished with imprisonment which may extend to three years, or with fine, or with both." It could be seen that the intention to cause disorder or to incite the people to violence is the sine quo non of the offence under Section 153-A IPC and such intention has to be judged by the potential of the offending material and the circumstances in which the material was published. The submissions made on behalf of the State to the effect that only on the instructions of the petitioners from Chennai to the Vellore Office of the Daily to publish the Cartoon, the material came to be published in the Vellore Edition and that the offending material has not only hurt and injured the sentiments of the Muslims but also has the effect of inciting communal clashes cannot be so slightly ignored particularly when investigation is at the preliminary stage and when steps are being taken to transfer the investigation from the respondent police to an investigating agency at Chennai. As pointed out earlier, the Publication of the offending material knowing the adverse consequences and the timing thereof prima facie suggest ulterior motives on the part of the petitioners. As pointed out earlier, the Publication of the offending material knowing the adverse consequences and the timing thereof prima facie suggest ulterior motives on the part of the petitioners. In the light of the abundant materials available, it is too vague to argue that it was an innocent mistake. Though the only penal provision registered against the petitioners is Section 153-A IPC., in view of the reason that custodial interrogation is absolutely necessary in the light of the various aspects adverted to above, I am of the considered opinion that this is not a fit case to grant the relief sought for. 9. In the result, the petition is dismissed. It goes without saying that due to the dismissal of the Crl.O.P., the interim direction of this Court, dated 02.09.2008, issued to the respondent police not to arrest the petitioners has become obsolete.