Mithun Chakraborty vs The State Of West Bengal And Another

For the State : Mr. Saswata Gopal Mukherjee, Ld. P.P, Mr. Saryati Datta, Adv.

For the de-facto complainant : Mr. Hareram Singh, Adv.

Hearing concluded on : 24.09.2021

Judgment on : 09.12.2021 2

Kausik Chanda, J.:-

The petitioner, a septuagenarian actor, has filed this application for

quashing of an F.I.R. registered against him under Sections

153A/504/505/34 of the Indian Penal Code, 1860.

2. The F.I.R. maker, in his complaint, described himself as a whole-time

worker of the political party in ruling dispensation of the State.

3. He alleged in his F.I.R. dated May 6, 2021, that after the

announcement of the West Bengal Assembly Election, 2021, a large

number of full-time workers of the said party, all over West Bengal, have

been subjected to physical torture, and immense violence by the party

workers of the rival political party in the State. The workers of the political

party in opposition have burned down and destroyed the houses of the

workers of the ruling political party and the said workers were roaming

around the State homeless and helpless.

4. The F.I.R. maker alleges that said violence and harm were done due

to the instigation of the petitioner, who in various public meetings,

appearances and speeches during his election campaign delivered two

dialogues namely, "মারেবা এখােন, লাশ পড়েব শােন" (will hit you here and your

body will fall in the crematorium) and "এক ছাবেল ছিব" (one snake bite will

turn you into a photograph). The utterance of those dialogues provoked the

opposition party workers to perpetrate violence and brutality against the

party workers of the ruling party. The F.I.R. maker also made some 3

allegations against another leader of the said opposition party. In this case,

we are not concerned with those allegations.

5. The F.I.R. suggests that the petitioner being a public figure and icon

of Bengal, his statement and in the manner in which such statement was

made instigated and provoked the opposition party workers.

6. On the basis of the said F.I.R, a case was registered being Maniktala

Police Station Case No. 95 dated 06.05.2021 under Sections

153A/504/505/34 of the Indian Penal Code, 1860, being G.R. Case No.

1174 of 2021.

7. Mr. Mahesh Jethmalani, learned senior advocate appearing in

support of this application for quashing, suggests that the petitioner is a

well-known actor of the country, and those words are only dialogues of two

films namely, "Abhimanyu" and "M.L.A. Fatakeshto". Those two dialogues

were very popular amongst the people of Bengal, and the petitioner, in fact,

said those dialogues on many occasions only to entertain the audience. Mr.

Jethmalani suggests that the petitioner had no intention to incite anyone

for the commission of any crime. He, further, suggests that this present

case has been registered with utter mala fide intention since the petitioner

has changed his political allegiance from the ruling political dispensation to

the party in opposition in the State.

8. By referring to Sections 153A/504/505/34 of the Indian Penal Code,

1860, Mr. Jethmalani suggests that none of the ingredients of the aforesaid 4

Sections are present in the F.I.R. and the F.I.R. in question, therefore, is

liable to be quashed.

9. Mr. Jethmalani in support of his argument places reliance on the

judgments reported at (1988) 1 SCC 668 (Ramesh v. Union of India),

(1997) 7 SCC 431 (Bilal Ahmed Kaloo v. State of A.P.), and (2021) SCC

OnLine SC 258 (Patricia Mukhim v. State of Meghalaya).

10. Mr. Saswata Gopal Mukherjee, learned Public Prosecutor appearing

on behalf of the State has argued that a distinction lies between "free

speech" and "hate speech". Free speech includes the right to comment,

favour or criticize the government policies whereas hate speech spreads

hatred against a targeted community or group. The object of criminalizing

hate speech is to protect the dignity and to ensure political and social

equality between different identities and groups regardless of caste, creed,

religion, sex, gender identity, sexual orientation, linguistic preference, etc.

The petitioner in this case in a calculating manner has chosen the word

which in one way can be termed as the dialogue of a film and in the other

way it would spread hatred against a targeted group. The petitioner being a

person of influence, keeping in view his reach, impact, and authority he

wields on the general public owes a duty and has to be more responsible. It

is expected that he would be careful in using the words that convey his

intent.

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11. It has further been argued by the State that the petitioner did not

stop by uttering the said two dialogues but he continued with the words

"এবার িক এটাই হেব" (and now this will happen). If the said movie dialogues

are taken along with the said additional words, it would fall under the

category of "hate speech."

12. Mr. Mukherjee places reliance upon the judgment reported at (2021)

1 SCC (Cri) 247 (Amish Devgan v. Union of India) to argue that the

intention as to whether the accused person promoting enmity is to be

collected from the internal evidence of the words themselves, but it is not to

say that other evidence cannot be looked into. While examining the

question of likelihood to promote ill-feelings the facts and circumstances of

that time must be taken into account.

13. It has, further, been argued by Mr. Mukherjee that the judgment of

the Supreme Court in Amish Devgan case makes it clear that any

evaluation of "hate speech" would require examination and consideration of

the variable "context" as well as the "intent" and the "harm/impact". These

have to be evaluated before the Court can form an opinion on whether an

offence is made out. The evaluation on the judgment of these aspects would

be based upon facts, which have to be inquired into and ascertained by a

police investigation. Mr. Mukherjee argues that the petitioner has offered

an apology, which is an indication of his implied acceptance of the

commission of the offences.

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14. Mr. Mukherjee, further, relied upon a judgment reported at (2014)

11 SCC 477 (Pravasi Bhalai Sangathan v. Union of India) for the

proposition that hate speech is an effort to marginalize individuals based

on their membership in a group. Hate speech rises beyond causing distress

to individual group members. Hate speech also impacts a protected group's

ability to respond to the substantive ideas under debate.

15. Mr. Mukherjee then relied upon a judgment reported at (2018) 3

SCC 104 (Dineshbhai Chandubhai Patel v. State of Gujarat) to argue

that the Court has no power to stop the investigation of the police to

investigate into cognizable offences. If on a consideration of the relevant

materials, the Court is satisfied that an offence is disclosed, the Court will

normally not interfere with the investigation into the offence and generally

allow the investigation into the offence to be completed for collecting

materials for proving the offence. For the same proposition, further reliance

had been placed upon the judgments reported at AIR 1960 SC 866 (R.P.

Kapur v. State of Punjab), (2021) SCC OnLine SC 315 (Neeharika

Infrastructure Pvt. Ltd. v. State of Maharashtra), and JT 2002 (3) SC

89 (M.L. Bhatt v. M.K. Pandita).

16. Mr. Mukherjee argued that the judgments relied upon by the

petitioner reported at (1988) 1 SCC 668 (Ramesh v. Union of India),

(1997) 7 SCC 431 (Bilal Ahmed Kaloo v. State of A.P.), and (2021) SCC

OnLine SC 258 (Patricia Mukhim v. State of Meghalaya) are not 7

applicable in the facts of the present case. In the present case, the

investigation is going on and there are, prima facie, materials to make out

an offence under Sections 153A and 505(2) of the Indian Penal Code, 1860.

17. Mr. Mukherjee has argued that no ground of mala fide being made

out, in exercise of jurisdiction of the investigating officer, the relevant F.I.R.

cannot be quashed and the investigating agency cannot be preempted from

carrying on the investigation to its logical conclusion. In this regard, Mr.

Mukherjee relied upon a judgment reported at (2019) 9 SCC 24 (P.

Chidambaram v. Directorate of Enforcement).

18. To appreciate the controversy, Sections 153A, 504, and 505 of the

Indian Penal Code, 1860 are quoted below:

"[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 of 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 tranquillity, [or] [(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be 8

likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,] shall be punished with imprisonment which may extend to three years, or with fine, or with both.

Offence committed in place of worship, etc.--(2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.]"

"504. Intentional insult with intent to provoke breach of the peace.--Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

"[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 9

(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.

[(2) Statements creating or promoting enmity, hatred or ill-will between classes.--Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment which may extend to three years, or with fine, or with both.] [(3) Offence under sub-section (2) committed in place of worship, etc.--Whoever commits an offence specified in sub-section (2) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.] Exception.--It does not amount to an offence, within the meaning of this section when the person making, publishing or circulating any such statement, rumour or report, has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it [in good faith and] without any such intent as aforesaid.]"

19. The Supreme Court has dealt with the scope, ambit and distinction

between the Section 153A and 505 of the Indian Penal Code 1860, in the

case reported at (1997) 7 SCC 431 (Bilal Ahmed Kaloo v. State of A.P.).

The relevant paragraphs of the said judgment are quoted below:

"11. This Court has held in Balwant Singh v. State of Punjab that mens rea is a necessary ingredient for the 10

offence under Section 153-A. Mens rea is an equally necessary postulate for the offence under Section 505(2) also as could be discerned from the words "with intent to create or promote or which is likely to create or promote"

as used in that sub-section.

12. The main distinction between the two offences is that while publication of the words or representation is not necessary under the former, such publication is sine qua non under Section 505. The words "whoever makes, publishes or circulates" used in the setting of Section 505(2) cannot be interpreted disjunctively but only as supplementary to each other. If it is construed disjunctively, anyone who makes a statement falling within the meaning of Section 505 would, without publication or circulation, be liable to conviction. But the same is the effect with Section 153-A also and then that section would have been bad for redundancy. The intention of the legislature in providing two different sections on the same subject would have been to cover two different fields of similar colour. The fact that both sections were included as a package in the same amending enactment lends further support to the said construction.

13. Yet another support to the above interpretation can be gathered from almost similar words used in Section 499 of the Penal Code as "whoever by words ... makes or publishes any imputation ...".

14. In Sunilakhya Chowdhury v. H.M. Jadwet it has been held that the words "makes or publishes any imputation"

should be interpreted as words supplementing each other. A maker of imputation without publication is not liable to be punished under that section. We are of the view that the same interpretation is warranted in respect of the words "makes, publishes or circulates" in Section 505 IPC also.

15. The common feature in both sections 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. Merely inciting the feeling of one community or 11

group without any reference to any other community or group cannot attract either of the two sections."

20. It was held in the case reported at (1988) 1 SCC 668 (Ramesh v.

Union of India) 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".

21. The Supreme Court in the judgment reported at (2014) 11 SCC 477

(Pravasi Bhalai Sangathan v. Union of India) referred to the judgment

of the Canadian Supreme Court where the three following tests have been

laid down to determine a hate speech:

"7. ... First, the courts must apply the hate speech prohibition objectively. The question courts must ask is whether a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred. Second, the legislative term "hatred" or "hatred or contempt" must be interpreted as being restricted to those extreme manifestations of the emotion described by the words "detestation" and "vilification". This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimisation and rejection that risks causing discrimination or other harmful effects. Third, the tribunals must focus their analysis on the effect of the expression at issue, namely, whether it is likely to expose the targeted person or group to hatred by others. ..."

22. It was held in Amish Devgan (supra) that the ordinary reasonable

meaning of the matter complained of may be either the literal meaning of 12

the published matter or what is implied in that matter or what is inferred

from it. A particular imputation is capable of being conveyed means and

implies it is reasonably so capable and should not be strained, forced or

subjected to utterly unreasonable interpretation. A deliberate and

malicious intent is necessary and can be gathered from the words itself--

satisfying the test of top of Clapham omnibus, the who factor--person

making the comment, the targeted and non-targeted group, the context and

occasion factor--the time and circumstances in which the words or speech

was made, the state of feeling between the two communities, etc. and the

proximate nexus with the protected harm, to cumulatively satiate the test

of "hate speech".

23. If the aforesaid tests as evolved by the Supreme Court in Amish

Devgan case are applied in the present case, one cannot come to a

conclusion that the ingredients of the hate speech are present.

24. There is, perhaps, no need to take resort to any complex theories to

appreciate whether the utterance of these two dialogues would amount to

hate speech. The petitioner is a popular matinee idol. The involvement of

film stars in politics in the country is nothing new. It is also well known

that film stars try to entertain and attract voters by saying cinematic

dialogues in political rallies. The case in hand is no exception. It is a matter

of fact that the dialogues "Marbo Ekhane Laash Porbe Shoshaney" and "Ek 13

Choboley Chobi" are the two popular dialogues of the petitioner from the

Bengali movies namely, "M.L.A. Fatakeshto" and "Abhimanyu" respectively.

25. The utterance of the said dialogues and the context in which the

petitioner uttered the said dialogues are not in dispute. The petitioner does

not deny the fact that he said the said two movie dialogues in the public

meeting on March 7, 2021, held at Kolkata Brigade Parade Ground

organized by the opposition political party of the State. The petitioner

admits that on many occasions, on public demand, he has said the said

dialogues in different public functions to entertain the general public.

26. The two dialogues in question are fundamentally funny, hilarious,

and entertaining; it is futile to try to find the elements of hate speech in

them. A reasonable man in the context or circumstances in which the said

two dialogues were uttered cannot view them as an expression of hatred.

27. Admittedly, in this case, there was no publication of words or

representations, and in view of the judgment in Bilal Ahmed Kaloo (supra)

the Section 505 of the Indian Penal Code, 1860 cannot be attracted.

28. The petitioner did not utter those dialogues to promote the feeling of

enmity, hatred, or ill-will between different religious, racial, linguistic or

regional groups or castes or communities, and, therefore, the ingredients of

offences under Sections 153A, 504, and 505 of the Indian Penal Code, 1860

are absent in this case.

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29. The petitioner uttered the dialogues on March 7, 2021, whereas the

present complaint before the police was registered on May 6, 2021, after

the announcement of the West Bengal Assembly Election result on May 2,

2021. Even if the effect of such utterance is judged from the standard of

weak and vacillating minds, it cannot be said that there is any proximate

nexus between the dialogues uttered by the petitioner and the widespread

violence that took place in the State after the Assembly Election.

30. The allegations in the F.I.R. with regard to the utterance of the

dialogues and the context in which the said dialogues were delivered are

not denied by the petitioner and I have already held that such facts do not

disclose the commission of any cognizable offence under Sections 153A,

504 and 505 of the Indian Penal Code, 1860.

31. Needless to mention that if allegations made in the F.I.R, even if

taken at the face value do not, prima facie, constitute any offence justifying

an investigation by the police, the High Court in the exercise of power

under Section 482 of the Code of Criminal procedure, 1973 can quash the

investigation to prevent the abuse of the process of law. The law in this

regard has been settled by the judgment of the Supreme Court in a number

of cases. There has been no departure from this proposition of law in

Neeharika Infrastructure (supra).

32. I am of the view that since the petitioner does not deny the fact that

he uttered the said dialogues and the context in which the said dialogues 15

were delivered is also not denied, any further police investigation of the

present case will be an unnecessary and vexatious exercise.

33. In view of the aforesaid discussion, the revisional application being

C.R.R. No. 1345 of 2021 is allowed and the G.R. Case No. 1174 of 2021

arising out of Maniktala Police Station Case No. 95 dated 06.05.2021 under

Sections 153A/504/505/34 of the Indian Penal Code, 1860, pending before

the Court of the learned Additional Chief Judicial Magistrate at Sealdah

stands quashed.

34. Urgent certified website copies of this judgment, if applied for, be

supplied to the parties subject to compliance with all the requisite

formalities.

(Kausik Chanda, J.)