Heard Sri I. B. Singh, Senior Advocate on behalf of petitioner assisted by Kunwar Siddharth Singh and the learned A.G.A.
Through this petition, the petitioner has challenged the charge sheet no. 36 of 2010 dated 6.2.2010 filed against him under Section 294 IPC .
The petitioner is alleged to have committed an offence punishable under Section 294 IPC during the course of a speech given for campaigning of a political party, namely 'Samajwadi party'. Such utterances and statement are said to have been made on the basis of a film namely ' Munna Bhai M.B.B.S.' whose hero was the petitioner. The film according to the public perception was widely appreciated as it was based on Mahatama Gandhi's ideology and also it was on the basis that every thing can be solved through love and affection instead of indulging into the act of violence. The petitioner while giving political speech at a meeting organized by the said party proceeded to give a statement to the effect that the public may approach the Chief Minister and give her ' Jadu Ki Jhappi' and ' Jadu Ki Pappi' for redressal of its grievances and thereafter problems will be solved and upon the said statement the State machinery i.e. certain officers of the district became over active and proceeded to lodge an FIR against the petitioner. After lodging of the FIR statement of witnesses were recorded and thereafter a charge sheet has been filed.
Submission of learned counsel for the petitioner is that ingredients of Section 294 as contemplated under the I.P.C.are not complete from the evidence which has been collected during the course of investigation. Therefore, the trial court can not proceed against the petitioner. It has also been submitted that there has been no offence and the public at large can not be said to be affected and annoyed on account of this statement but for the official who has lodged the FIR. The FIR was lodged with a view to please the Chief Minister and nothing more than that. He has relied upon Section 294 IPC which reads as under :-
" 294-Obscene acts and songs - Whoever, to the annoyance of others--
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both."
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In support of his contention he has placed reliance upon the decision of the Madras High Court in the case of K.Jayaramanuju Vs. Janakaraj and others, 1997 CRI.L.J.1623 where in similar question of uttering of obscene words was involved and the Madras High Court while considering the question held that in order to prove the offence under Section 294 IPC mere utterance of obscene words are not sufficient but there must be a further proof to establish that it was to the annoyance of others. Since the said evidence was lacking in the said case the accused was acquitted.
The next case on which reliance has been placed is the case of Kartar Singh and others Vs. The State of Punjab, 1956 S.C. 541 (S) AIR V 43 C 93 Aug.) to give support to his argument that if any statement is made against a Minister then whether it amounts to disturbing the State security and whether that will amount to defamation.
Support has also been taken by the petitioner in regard to the fact that people in public life in a democratic State are open to criticism and they should accept it open heart rather than taking it offensive. The vanity should not come in the mind of the people who are in public life and they should be open to criticism and they must ready to bear the criticism to that extent. In para 12 of the judgment it has been held as under :-
"These slogans were certainly defamatory of the Transport Minister and the Chief Minister of the Punjab Government but the redress of that grievance was personal to these individuals and the State authorities could not take the cudgels on their behalf by having recourse to section 9 of the Act unless and until the defamation of these individuals was prejudicial to the security of the State or the maintenance of public order.
So far as these individuals were concerned, they did not take any notice of these vulgar abuses and appeared to have considered the whole thing as beneath their notice. Their conduct in this behalf was consistent with the best traditions of democracy. "Those who fill a public position must not be too thin skinned in reference to comments made upon them. It would often happen that observations would be made upon public men which they know from the bottom of their hearts were undeserved and unjust yet they must bear with them and submit to the misunderstood for a time" (Per Cockburn, C.J. in Saymour v. Butterworth (1) and gee the dicta of the judges in R. V. Sir R. Carden (2). "Whoever fills a public position renders himself open thereto. He must accept an attack as a necessary, though unpleasant, appendage to his office" (Per Bramwell, B., in Kelley v. Sherlock (3). Public men in such positions may as well think it worth their while to ignore such vulgar criticisms and abuses hurled against them rather than give importance to the same by prosecuting the persons responsible for the same."
Learned AGA was asked to bring to the notice of the Court the clinching evidence, which may fasten the liability of criminal act punishable under Section 294 IPC in respect of the petitioner. The entire evidence which has been annexed along with the charge sheet is that of only government officials. The ingredients of Section 294 IPC go to indicate that it should be of annoyance to others. The word 'others' goes to indicate that it should be
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annoyance to the persons who are independent and who are neither party to any of the section of the society and it should be to the public.
Apart from the government official, no statement of any public person has been recorded to indicate that there was annoyance to others. Even if the argument of learned AGA is accepted, then the annoyance of person concerned against whom statement has been made is not explicit from the record.
In absence of clinching evidence, the charge sheet which has been filed, does not inspire confidence and the petitioner has every chance of success. The circumstances in which the statement has been made does not lead to inference from any corner that it was made with a view to make any obscene remark against the Chief Minister. It appears that it was made in respectful friendly atmosphere and in a lighter vein rather than in derogatory manner.
He has merely repeated the dialogue of the film and repeating of dialogue of his film does not amount to coining some phrase or remark being obscene against any person. Gandhian theory as propounded by the petitioner was his prerogative, therefore, in the circumstances, it appears that process of law has been misused.
Since it is at the interim stage, I do not dwelve into that subject further.
Let learned AGA may file counter affidavit within four weeks and the thereafter the petitioner has two weeks to file rejoinder affidavit. List thereafter.
In the meantime the operation of the summoning order dated 2.4.2010 passed in Case No. 1107/2010 (State Vs. Sanjay Dutt) pending in the court of Chief Judicial Magistrate, Pratapgarh, shall remain stayed.
Order Date :- 20.1.2011 BLY