In a most significant development having a far reaching impact on all of us who use mobile phones, the Madras High Court in a most learned, laudable, landmark and latest judgment titled S Ve Shekher v Al Gopalsamy and Others in Crl.O.P.(MD) Nos.11494 & 12163 of 2018 Crl.O.P.Nos.5099 of 2019 & 6211 of 2021 & all connected pending Crl.M.Ps. and cited in 2023 LiveLaw (Mad) 197 that was reserved on July 10 and then finally pronounced on July 14, 2023 has refused to quash a batch of criminal proceedings initiated against actor and BJP politician S Ve Shekher for his derogatory remarks that were directed against women journalists. It must be mentioned here that the cases were registered after Shekher had forwarded an abusive, derogatory and vulgar comment on his Facebook account in April 2018. The Single Judge Bench comprising of Hon’ble Mr Justice N Anand Venkatesh minced just no words to note emphatically that Shekher was a person of high stature with many followers and he ought to have exercised more caution while forwarding messages. It certainly merits no reiteration that this most commendable judgment is definitely the best lesson for all of us to be very careful while forwarding messages and must refrain and abstain from passing any such message which is either derogatory or defamatory or is obscene, vulgar or abusive!
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice N Anand Venkatesh sets the ball in motion by first and foremost putting forth in para 1 that, “The issue involved in all these criminal original petitions is common and hence, they are taken up together, heard and disposed of by this common order.”
To put things in perspective, the Bench envisages in para 2 that, “The brief facts leading to filing of these petitions are stated as hereunder:
(i) The petitioner in all these petitions is a past Member of the Legislative Assembly representing Mylapore Constituency during the years 2006-2011. The petitioner is said to have published/circulated an abusive, derogatory and vulgar comment in his facebook account on 19.4.2018.
(ii) The contents of the objectionable comment are extracted as hereunder :
(iii) Pursuant to that, a complaint came to be given before the Commissioner of Police, Chennai to take action against the petitioner for having posted such a derogatory comment in his facebook account. Accordingly, a first information report was registered in Cr.No.148 of 2018 for offences under Sections 504, 505(1)(c) and 509 of the Indian Penal Code (hereinafter called the IPC) and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 2002 on the file of the Inspector of Police, Cyber Crime Cell, Central Crime Branch, Chennai, who is none other than the first respondent in Crl.O.P.No.6211 of 2021. The first information report was investigated by the concerned Inspector of Police and on completion of the investigation, a final report came to be filed before the Assistant Sessions Court, Additional Special Court for Trial of Cases relating to MPs and MLAs, Singaravelar Maligai, Chennai-1 (for short, the Special Court) in C.C.No.62 of 2019 and it has been put to challenge by the petitioner in Crl.O.P.No.6211 of 2021.
(iv) For the same cause of action, private complaints were filed against the petitioner in various parts of Tamil Nadu. The complaint filed before the Judicial Magistrate No.2, Karur, which was taken on file in C.C.No.223 of 2018, has been put to challenge in Crl.O.P.(MD) No.12163 of 2018. The complaint filed before the Judicial Magistrate No.1, Tirunelveli, which was taken on file in C.C.No.154 of 2018, has been challenged in Crl.O.P.(MD) No.11494 of 2018. Similarly, The complaint filed before the Judicial Magistrate, Ambattur, which was taken on file in S.T.C.No.276 of 2018, has been put to challenge in Crl.O.P.No.5099 of 2019.”
Needless to say, the Bench specifies in para 3 that, “Heard the respective learned counsel appearing for the petitioner, the learned Additional Public Prosecutor appearing for the State and the respective learned counsel appearing for the complainants in Crl.O.P.(MD) Nos.11494 and 12163 of 2018 and Crl.O.P.No.5099 of 2019. Though the complainant/second respondent in Crl.O.P.No.6211 of 2021 was served and his name printed in the cause list, he does not choose to appear either in person or through a counsel.”
As it turned out, the Bench discloses in para 4 that, “The petitioner had taken a stand to the effect that he was not aware of the contents of the message that was sent to him by one Mr.Thirumalai Sa (a) Thirumalai Sadagopan from Bay Area, California, U.S.A., who was the author of the message, that he had merely forwarded the same from his facebook account, that immediately after coming to know of the derogatory remarks contained in the message, he removed the contents within a couple of hours on the same day i.e. 19.4.2018 and that thereafter, he followed it up with a letter dated 20.4.2018 whereby he tendered an unconditional apology to the concerned woman journalist and also to the Press and Media in Tamil Nadu at large. The petitioner also gave an interview in a television channel in Tamil Nadu expressing his unconditional apology and making it clear that he had inadvertently forwarded the message without reading its contents. The petitioner also reiterated the fact that he has highest respect for the Press and for women journalists and that he never intended to make any such derogatory remark against the Press.”
Do note, the Bench notes in para 7 that, “The petitioner is an educated person and is a well known figure in the State of Tamil Nadu. He had also served as a Member of the Legislative Assembly during the years 2006-2011. The petitioner has a fan following and whatever is done or said by the petitioner has an impact. This important fact must be borne in mind while deciding these matters.”
It would be germane to note that the Bench minces just no words to point out in para 8 that, “A careful reading of the contents of the message that was forwarded from the facebook account of the petitioner on 19.4.2018, showcases women journalists in a poor light. This Court is very hesitant to even translate the message that was forwarded by the petitioner since, to say the least, it is despicable. The contents are highly derogatory against the Press as a whole in Tamil Nadu.”
Most significantly, what forms the cornerstone of this notable judgment is then summed up in para 10 wherein it is propounded that, “We live in an era where social media has virtually taken over the lives of every individual in the world. A message sent/forwarded in the social media can reach the nook and corner of the world in no time. The ability to communicate is one of the main reasons for the world being ruled by human beings. We are now suffering from a virtual information diarrhoea where everyone is bombarded with messages. Hence, what is exchanged as a message in the social media, can have a very big influence within a short time. That is the reason as to why a person must exercise social responsibility while creating or forwarding a message. This is more so when the person concerned, by virtue of his position, can really influence the minds of the general public. A message sent/forwarded becomes a permanent evidence and it is almost impossible to wriggle out of the consequence that falls out by sending or forwarding a message.”
To be sure, the Bench maintains in para 11 that, “Considering the stature of the petitioner, he is expected to be more responsible while giving statements or forwarding messages. The petitioner himself had admitted that he has nearly 5000 followers for his facebook account. This means that the messages that are sent/forwarded by the petitioner will multiply, if those followers, in turn, keep forwarding those messages to others.”
Most remarkably, the Bench mandates in para 12 that, “The stature of a person is directly proportional to what he communicates to the society and its consequences. Therefore, an information or a message sent by a normal citizen and the same information/message sent by a person with a stature having followers has a lot of difference. In the former, such message or information may not have an impact on the society. However, when it comes from a person with stature, its repercussions will be higher. In view of the same, such a person carries a lot of responsibility in what he says and does considering the impact it will have on the society or a particular group of persons, as the case may be.”
Most forthrightly, the Bench holds in para 13 that, “Hence, a case of this nature cannot be decided by applying the same yardstick to everyone. The more a person is popular in the society, he also carries more responsibility in what he conveys to the society. The petitioner, in the instant case, falls under the category of a person of high stature with many followers and he ought to have exercised more caution before forwarding the message from his facebook account. If such a caution has been thrown to the winds and as a result, it has had a very serious impact, the petitioner has to necessarily face it and cannot try to run away from the consequences by merely tendering an unconditional apology.”
We all must pay attention to what is stated in para 14 that, “A message that is sent or forwarded in the social media is like an arrow, which has already been shot from the bow. Till that message remains with the sender, it is within his control. Once it is sent, it is like the arrow, which has already been shot and the sender of the message must take the ownership for the consequences of the damage done by that arrow (message). Once the damage is done, it will become very difficult to wriggle out of the same by issuing an apology statement.”
What also cannot be glossed over is then laid bare in para 15 that, “Every user of the social media must bear this in mind and must be extremely careful before sending or forwarding a message to others. There is a famous saying. Three things cannot be retrieved:
(i) the arrow once sped from the bow;
(ii) the word spoken in haste; and
(iii) the missed opportunity.”
Bluntly put, the Bench observes in para 16 that, “A person, who forwards the message, must be construed to acknowledge the contents of the message and that is the main reason as to why he forwards that message to others. In other words, the recipient of a message, who wants others also to know about that message, forwards that message to others. Once that is done, he has to take the responsibility for having forwarded the message to others. A person, who gets a dopamine high by looking at the likes for the message forwarded by him, must also be equally prepared to face the consequence, if that message has a derogatory content.”
It is then rightly pointed out in para 17 that, “The final report filed in Cr.No.148 of 2018 on the file of the Inspector of Police, Cyber Crime Cell, Central Crime Branch, Chennai has been taken cognizance by the Special Court for various offences including the one under Section 504 of the IPC.”
Be it noted, the Bench notes in para 19 that, “In the instant case, the message that was forwarded by the petitioner did cause insult to the journalists and more particularly the women journalists and it did provoke to break public peace since, after the message was circulated in the social media, there was a demonstration in front of the house of the petitioner and there was some violence. The same was pleaded by the petitioner in the quash petitions. Hence, prima facie, the offence under Section 504 of the IPC is made out.”
Further, the Bench mentions in para 20 that, “The Special Court has also taken cognizance of the offence under Section 505(1)(c) of the IPC. This offence will be attracted where a person publishes or circulates a statement, which is likely to incite any class or community of persons to commit any offence against any other class or community.”
It is worth noting that the Bench notes in para 21 that, “The message that was forwarded by the petitioner did induce commission of offence against public tranquillity and there was a hue and cry across the State immediately after the incident. Hence, the offence under Section 505(1)(c) of the IPC is also prima facie made out.”
More to the point, the Bench holds in para 22 that, “The Special Court has further taken cognizance of the offence under Section 509 of the IPC. There is no doubt in the mind of this Court that the offence under Section 509 of the IPC is prima facie made out considering the fact that the content of the message virtually outrages the modesty of a woman and exposes her very indecently.”
In addition, the Bench adds in para 23 that, “The Special Court has additionally taken cognizance of the offence under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 2002.”
No doubt, the Bench rightly states in para 24 that, “The message forwarded by the petitioner contains indecent and vitriolic attack on a particular woman and other women Press Reporters. Hence, prima facie, the offence under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 2002 is also made out.”
Truly speaking, the Bench notes in para 25 that, “It is true that the petitioner removed the derogatory message from his facebook account even on the same day and he also apologized for having forwarded the message. These acts, by themselves, do not help the petitioner from facing the consequences for forwarding a derogatory message. An offence has already been committed and the petitioner cannot now escape from the offence by merely coming up with an apology statement subsequently.”
While justifying strict action, the Bench postulates in para 26 that, “In cases involving a dispute between two individuals, if immediately the offender regrets and tenders his apology for his act, the Court may consider acting upon the same. However, in the instant case, it is not a dispute between two individuals and the act of the petitioner has virtually painted the entire Press and more particularly the women Reporters with vulgar comments and when such a large body is affected due to the act of the petitioner, he cannot be let away just because he tendered an apology. If such an easy route is adopted, anyone can make such statements, cause damage, subsequently apologize for his act and get away from the action taken against him.”
While taking potshots at petitioners contentions, the Bench clearly holds in para 27 that, “In view of the same, the apology tendered and the explanation given by the petitioner to the effect that he had forwarded the message inadvertently cannot be acted upon and the criminal proceedings cannot be quashed on that ground. For the present, the intention of the petitioner can be gathered only from the contents of the message that was forwarded by the petitioner. The issue as to whether the petitioner had forwarded the message inadvertently or not, is a matter for evidence and such a defence has to be established by the petitioner only during the course of trial. Therefore, this Court does not find any ground to interfere with the criminal proceedings initiated against the petitioner. The defence taken by the petitioner has to be established only before the Special Court, which has to decide the same on appreciation of evidence.”
Further, the Bench mentions in para 28 that, “The respective respondent in Crl.O.P.(MD) Nos.11494 and 12163 of 2018 and Crl.O.P.No.5099 of 2019 filed private complaints against the petitioner on the ground that the petitioner defamed the entire Press in Tamil Nadu and particularly the women journalists. Hence, they are also prosecuting the petitioner mainly for the offence punishable under Section 500 of the IPC.”
Furthermore, the Bench adds in para 29 that, “Explanation 2 to Section 499 of the IPC makes it explicit that it will amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Hence, if a well defined class is defamed, each and every member of that class can file a complaint.”
What’s more, the Bench specifies in para 30 that, “Section 199 of the Criminal Procedure Code also provides that no Court shall take cognizance of defamation except upon a complaint made by ‘some person aggrieved by the offence’. Where a well defined class is defamed, each and every member of that class will become an aggrieved person and he can file a complaint. The complainants/respective respondent in Crl.O.P.(MD) Nos.11494 and 12163 of 2018 and Crl.O.P.No.5099 of 2019 claim to belong to the respective association working for the interest of the Press and Media. The issue as to how far they belong to the community of Press is a matter for evidence and it cannot be decided in quash petitions. Therefore, this Court does not find any ground to interfere with the private complaints initiated for defamation, which are the subject matter of challenge in Crl.O.P.(MD) Nos.11494 and 12163 of 2018 and Crl.O.P.No.5099 of 2019 and the petitioner has to necessarily face the proceedings and establish his defence.”
While citing a very recent, remarkable and relevant case law, the Bench hastens to add in para 31 stating that, “A recent judgment of the Apex Court in the case of Kaushal Kishor Vs. State of Uttar Pradesh [reported in 2023 (4) SCC 1] resonates while deciding these cases. The Apex Court was dealing with a menace that adversely affects the equilibrium of this country namely hate speech. The Apex Court had gone into all the issues in detail and it will be relevant to extract paragraph 251 of the judgment as hereunder:
“Every citizen of India must consciously be restrained in speech, and exercise the right to freedom of speech and expression under Article 19(1)(a) only in the sense that it was intended by the Framers of the Constitution, to be exercised. This is the true content of Article 19(1)(a) which does not vest with citizens unbridled liberty to utter statements which are vitriolic, derogatory, unwarranted, have no redeeming purpose and which, in no way amount to a communication of ideas. Article 19(1)(a) vests a multi-faceted right, which protects several species of speech and expression from interference by the State. However, it is a no brainer that the right to freedom speech and expression, in a human-rights based democracy does not protect statements made by a citizen, which strike at the dignity of a fellow citizen. Fraternity and equality which lie at the very base of our Constitutional culture and upon which the superstructure of rights are built, do not permit such rights to be employed in a manner so as to attack the rights of another.””
Adding more, the Bench categorically states in para 32 that, “The Apex Court, in the said judgment, by considering the fact that the hate speech is going beyond the control and it has a deleterious effect on the society, had gone to the extent of directing suo motu registration of the first information report without waiting for someone to file a complaint. The Courts must start analysing cases, which have an adverse impact on the society with more seriousness. The cases in hand are one such type where this Court does not want to handle them with kid gloves.”
Practically speaking, the Bench observes in para 33 that, “The petitioner cannot be made to move from one court to another to face the proceedings based on the very same cause of action. Hence, this Court is inclined to transfer the proceedings challenged in Crl.O.P.(MD) Nos.11494 and 12163 of 2018 and Crl.O.P. No.5099 of 2019 to the file of the Special Court namely the Assistant Sessions Court, Additional Special Court for Trial of Cases relating to MPs and MLAs, Singaravelar Maligai, Chennai-1 to be simultaneously taken up along with C.C.No.62 of 2019.”
As a corollary, the Bench holds in para 34 that, “In the light of the above discussions,
(a) the proceedings in
(i) C.C.No.154 of 2018 on the file of the Judicial Magistrate No.1, Tirunelveli,
(ii) C.C.No.223 of 2018 on the file of the Judicial Magistrate No.2, Karur and
(iii) S.T.C.No.276 of 2018 on the file of the Judicial Magistrate, Ambattur are withdrawn and transferred to the file of the Special Court namely the Assistant Sessions Court, Additional Special Court for Trial of Cases relating to MPs and MLAs, Singaravelar Maligai, Chennai-1 to be simultaneously tried along with C.C.No.62 of 2019.
(b) The findings rendered by this Court in this common order will not have any bearing on the Special Court while deciding the cases and the petitioner is entitled to raise all the grounds before the Special Court. The Special Court shall decide the cases on their own merits and in accordance with law. The Special Court shall try to expeditiously complete the trial and pass final orders in all the cases not later than six months from the date of receipt of a copy of this order.
(c) The case bundles in
(i) C.C.No.154 of 2018 on the file of the Judicial Magistrate No.1, Tirunelveli,
(ii) C.C.No.223 of 2018 on the file of the Judicial Magistrate No.2, Karur and
(iii) S.T.C.No.276 of 2018 on the file of the Judicial Magistrate, Ambattur, which are transferred to the file of the Special Court, shall be immediately forwarded by the respective Courts to the Special Court so as to enable the expeditious disposal of all the cases.”
Finally, the Bench concludes by holding in para 35 that, “In the result, all the above criminal original petitions are dismissed in the above terms. Consequently, all connected pending Crl.M.Ps. are also dismissed.”
In sum, we thus see that the Madras High Court has made it indubitably clear in this most courageous, commendable and forthright judgment that a person forwarding any social media message is liable for its contents. The Court as we see thus refused point blank to quash the criminal cases against S.Ve. Shekher. We all too must also definitely be most careful after going through a cursory look at this most robust judgment and from now onwards should strongly desist from forwarding any such post which is either abusive or vulgar or defamatory or derogatory! No denying it!
Sanjeev Sirohi