Venkatesh v. State rep by Inspector of Police Vikravandi Police Station Villupuram District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 3-3-2011CORAMTHE HONOURABLE MR. JUSTICE G.M. AKBAR ALICRL.O.P.No.23182 of 2010 and M.P.No.1 of 2010Venkatesh ... PetitionervsState rep by Inspector of Police Vikravandi Police Station Villupuram District (Cr.No.298 of 2010) ... RespondentCriminal Original Petition filed under Section 482 Cr.P.C.for the reliefs as stated therein.For petitioner :Mr.R. SankarasubbuFor respondent:Mr.Hassan Mohammed JinnahAPP ORDERBy consent of both sides, the matter has been taken up forfinal hearing. The petition is filed seeking a direction to callfor the records in S.T.C.No.1571 of 2010 on the file of the learnedJudicial Magistrate No.II, Villupuram and quash the charge sheet.2. The petitioner is charged for an alleged offence underSec.3(1) of Tamil Nadu Open Places (Prevention of Disfigurement)Act 1959. It is alleged that on 17.7.2007 around 3.00 p.m thepetitioner was affixing the posters on a wall in public viewcontaining slogans with provocative words against the Government.3. Aggrieved at taking cognizance of the charge sheet, thepetitioner is before this Court to quash the same on the groundthat the prosecution is malicious and the petitioner is protectedunder Art.19(1)(a) of the Constitution of India and he has notpropagated any offending slogans.4. Mr.R. Sankarasubbu, learned counsel for the petitionerwould draw this court's attention to Sec.3 of the Tamil Nadu OpenPlaces Prevention of Disfigurement Act, 1959. He submitted thatthe offence will be attracted only if any 'objectionableadvertisement' is made in any place open to public view. Thelearned counsel submitted that freedom of speech and expression isthe fundamental right guaranteed under Art.19(1)(a) of the https://hcservices.ecourts.gov.in/hcservices/ Constitution of India and relied on a decision reported in AIR 1959Allahabad 101 (Kedar Nath Singh vs Sate of Bihar) . He alsorelied on a decision reported in 2002 (2) ACT 343 (V. NarayanaReddy vs State of Andhra Pradesh)5. The respondent filed counter, in which, it is statedthat on 17.7.2010 the petitioner affixed poster without anypermission or consent condemning the Tamil Nadu Government and theposter affixed by the petitioner did not contain any details as towhere it was printed.6. It is also stated that based on the examination ofthe witnesses and also on the opinion of the Additional PublicProsecutor, charge sheet was filed for the offence under Sec.4(1)of the Tamil Nadu Open Places (Prevention of Difigurement) Act 1952and the same was taken on file in STC No.1571 of 2010. 7. It is further stated that if any person affixes to orinscribes or exhibits on any place open to public view anyadvertisement without the written consent of the owner or occupieror person in management of the propery, is liable to be punishedunder Sec.4 (1) of Tamil Nadu Open Places (Prevention ofDisfigurement) Act, 1959. It is also stated that after completionof investigation, charge sheet has been filed and the same has beentaken on file. At this stage, there is no necessity to quash theproceedings.8. In support of this contentions, Mr.Hassan MohammedJinnah, the learned Additional Public Prosecutor submits that thepetitioner has exhibited objectionable advertisements andtherefore, liable to be prosecuted and the court need not interferein this matter.9. Heard and perused the materials available on record.10. Art 19(1)(a) of the Constitution reads as follows:19.Protection of certainrights regarding freedomof speech etc(1)All citizens shall have theright :-(a) to freedom of speech andexpression; (b) to assemble peaceably andwithout arms; (c) to form associations or unions;(d) to move freely throughout theterritory of India; https://hcservices.ecourts.gov.in/hcservices/ (e) to reside and settle in anypart of the territory of India; and(f) omitted (g) to practise any profession, orto carry on any occupation, tradeor business 11. However, this guarantee is subject to the reasonablerestrictions which is indicated in clause (ii) of the Article.12. Sec.2(b) of the Tamil Nadu Open Places (Prevention ofDisfugurement) Act, 1959 defines objectionable advertisementswhich reads as follows:""(b) "Objectionable advertisement"means any advertisement which is likelyto;(i) incite any person to commit murder,sabotage or any offence involvingviolence; or(ii) seduce any member of any of thearmed forces of the Union or of thepolice forces from his allegiance or hisduty or prejudice the recruiting ofpersons to serve in any such force orprejudice the discipline of any suchforce or(iii) incite any section of the citizensof India; or which(iv) is deliberately intended to outragethe religious feelings of any class ofthe citizens of India by insulting orblaspheming or profaning the religion orthe religiious beliefs of that class; or(v) is grossly indecent or is scurrilousor obscene or intended for blackmail;(vi) obstructs pedestrian traffic13. However, the explanation would go to show that anadvertisement shall not be deemed to be objectionable merelybecause words or signs visible representations are used, (1) expressing disapprobation orcriticism of any law or of any policyor administrative action of the https://hcservices.ecourts.gov.in/hcservices/ Government with a view to obtain itsalteration or redress by lawful means;(2) criticising any social orreligious practices without maliciousintention and with; honest view topromote social or religious reform orsocial justice.14. Sec.3 of the Act reads as follows:Penalty for disfigurement byobjectionable advertisement:-Whoever affixes to, or inscribes orexhibits on, any place open to publicview any objectionable advertisementshall be punished with imprisonmentof either description for a termwhich may extend to one year or withfine which may extend to fivethousand rupees or with both".15. Therefore, in order to constitute an offence underSec.3 of the Act, it should be alleged that the accused affixed orinscribed or exhibited any objectionable advertisement on any placeopen to public view.16. 2002 (2) ACT 343 (V. Narayana Reddy vs State of AndhraPradesh) the High Court of Andhra Pradesh had an occasion to dealwith a case where a practising advocate and an organising Secretaryof an Organisation for protection of democratic rights said to havepasted pamphlets containing objectionable advertisement regardingnuclear test and weapons. The High Court of Andhra Pradesh foundthat the intention of the organiser is to enlighten the publicabout the Nuclear disarmament and therefore, the pamphlet cannot besaid to be an objectionable advertisement. 17. In order to bring an offence under Sec.3 of the Act,the objectionable advertisement must satisfy any one of theconditions found in 2(b) of the Act. The explanations to Sections2(1) will not come under the objectionable advertisement. 18. The objectionable advertisement in the presentcase is said to be raising a slogan against the ruling party,objecting the institution of false cases and arresting themembers of Makkal Jananayaka Ilaignar Kazhagam (People DemocraticYouth Forum). 19. In my considered view, the intention of thepetitioner is to condemn the arrest of the fellow members of theforum and objecting foisting false cases. https://hcservices.ecourts.gov.in/hcservices/

20. Freedom of speech and expression is thefundamental right of all citizens. The reasonable restrictions isin relation to public order, decency or morality or in relation tocontempt of court, defamation or incitement to an offence. Therefore, whatever stated in the alleged poster is not comingunder the definition of 1 to 6 of 2(b) of the Act but will comeunder explanation (1) of 2(b) of the Act.21. Therefore, the pendency of such proceedings is onlyabuse of process of law which is liable to be quashed accordingly,it is quashed.22. In the result, the criminal original petition isallowed and the proceedings in S.T.C.No.1571 of 2010 on the file ofthe learned Judicial Magistrate No.II, Villupuram is herebyquashed. Consequently, connected MP is closed.Sd/-Deputy Registrar//true copy//Sub Asst.RegistrarsrTo1. Inspector of Police Vikravandi Police Station Villupuram District2. The Public Prosecutor, High Court, Chennai3. The Judicial Magistrate No.II, Villupuram.4. -do- Thro The Chief Judicial Magistrate, Villupuram.1 cc to Mr.R.Sankarasubbu, Advocate, Sr.No.15772 Order in Crl.O.P.No.23182 of 2010BS {CO}TP/15.3.2011.