REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 913 of 2010  [Arising out of SLP (Crl.) No. 4010 of 2008]  

S. Khushboo                                … Appellant  

Versus

Kanniammal & Anr.                        ... Respondents  

WITH

Criminal Appeal 914/2010 @SLP (Crl.) No. 6127 of 2008 Criminal Appeal 915/2010 @SLP (Crl.) No. 6257 of 2008 Criminal Appeal 916/2010 @SLP (Crl.) No. 6258 of 2008 Criminal Appeal 917/2010 @SLP (Crl.) No. 6259 of 2008 Criminal Appeal 918/2010 @SLP (Crl.) No. 7049 of 2008 Criminal Appeal 919/2010 @SLP (Crl.) No. 6264 of 2008 Criminal Appeal 920/2010 @SLP (Crl.) No. 6277 of 2008 Criminal Appeal 921/2010 @SLP (Crl.) No. 7052 of 2008 Criminal Appeal 922/2010 @SLP (Crl.) No. 7053 of 2008 Criminal Appeal 923/2010 @SLP (Crl.) No. 7050 of 2008 Criminal Appeal 924/2010 @SLP (Crl.) No. 7051 of 2008 Criminal Appeal 925/2010 @SLP (Crl.) No. 4761 of 2008 Criminal Appeal 926/2010 @SLP (Crl.) No. 4772 of 2008 Criminal Appeal 927/2010 @SLP (Crl.) No. 4767 of 2008 Criminal Appeal 928/2010 @SLP (Crl.) No. 4763 of 2008 Criminal Appeal 929/2010 @SLP (Crl.) No. 4765 of 2008 Criminal Appeal 930/2010 @SLP (Crl.) No. 4762 of 2008 Criminal Appeal 931/2010 @SLP (Crl.) No. 4764 of 2008 Criminal Appeal 932/2010 @SLP (Crl.) No. 4770 of 2008 Criminal Appeal 933/2010 @SLP (Crl.) No. 4769 of 2008   

J  U  D  G  M  E  N  T

Dr. B.S. CHAUHAN, J   

1. Leave granted in all the cases.   

2. The appellant is a well known actress who has approached  

this Court to seek quashing of criminal proceedings pending  

against her. As many as 23 Criminal Complaints were filed  

against her, mostly in the State of Tamil Nadu, for the  

offences contemplated under Sections 499, 500 and 505 of  

the  Indian  Penal  Code,  1860   [hereinafter  ‘IPC’]  and  

Sections 4 and 6 of the Indecent Representation of Women  

(Prohibition)  Act,  1986  [hereinafter  ‘Act  1986’].  The  

trigger  for  the  same  were  some  remarks  made  by  the  

appellant in an interview to a leading news magazine and  

later on the same issue was reported in a distorted manner  

in  another  periodical.  Faced  with  the  predicament  of  

contesting the criminal proceedings instituted against her  

in several locations, the appellant had approached the High  

Court  of  Madras,  praying  for  the  quashing  of  these  

proceedings  through  the  exercise  of  its  inherent  power  

under Section 482 of the Code of Criminal Procedure, 1973  

[hereinafter ‘Cr.PC.’]. The High Court rejected her plea  

vide impugned judgment and order dated 30.4.2008. At the  

same  time,  in  order  to  prevent  the  inconvenience  of  

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litigating  the  same  subject-matter  in  multiple  locations  

directed  that  all  the  cases  instituted  against  the  

appellant be consolidated and tried together by the Chief  

Metropolitan Magistrate, Egmore (Chennai). Aggrieved by the  

aforesaid judgment,  the appellant approached this Court by  

way of a batch of Special Leave Petitions.    

3. Before addressing the legal aspects of the case before  

us, it would be useful to examine the relevant facts. In  

September 2005, ‘India Today’ a fortnightly news magazine  

had conducted a survey on the subject of the sexual habits  

of people residing in the bigger cities of India. One of  

the  issues  discussed  as  part  of  this  survey  was  the  

increasing incidence of pre-marital sex. As a part of this  

exercise, the magazine had gathered and published the views  

expressed by several individuals from different segments of  

society, including those of the appellant. The appellant  

expressed her personal opinion wherein she had noted the  

increasing incidence of pre-marital sex, especially in the  

context  of  live-in  relationships  and  called  for  the  

societal  acceptance  of  the  same.  However,  appellant  had  

also qualified her remarks by observing that girls should  

take adequate precautions to prevent unwanted pregnancies  

and  the  transmission  of  venereal  diseases.  This  can  be  

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readily inferred from the statement which was published, a  

rough translation of which is reproduced below:  

“According to me, sex is not only concerned with  the body; but also concerned with the conscious.  I could not understand matters such as changing  boyfriends every week. When a girl is committed  to  her boyfriend, she can tell her parents and  go out with him. When their daughter is having a  serious  relationship,  the  parents  should  allow  the  same.  Our  society  should  come  out  of  the  thinking that at the time of the marriage, the  girls should be with virginity.  

None of the educated men, will expect that the  girl  whom  they  are  marrying  should  be  with  virginity.  But  when  having  sexual  relationship  the  girls  should  protect  themselves  from  conceiving and getting venereal diseases.”  

These  remarks  were  published  alongside  a  survey,  the  

relevant extracts of which are stated below:  

“Will  you  marry  a  person  who  had  relationship  with    others?  18% - Yes, 71% - No   Is it necessary to be a virgin till the time of  

marriage?  65% - Yes, 26% - No   The remaining percentage of people said: Do not  know/Cannot say   82% women had given an opinion that a girl should  be a virgin at the time of marriage.”  

4. Subsequently, ‘Dhina Thanthi’, a Tamil daily carried a  

news item on 24.9.2005 which first quoted the appellant’s  

statement published in ‘India Today’ and then opined that  

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it  had  created  a  sensation  all  over  the  State  of  Tamil  

Nadu. This news item also reported a conversation between  

the  appellant  and  a  correspondent  from  ‘Dhina  Thanthi’,  

wherein the appellant had purportedly defended her views in  

the following manner (rough translation reproduced below):  

“The  persons  who  are  protesting  against  my  interview,  are  talking  about  which  culture?  Is  there anyone who does not know about sex in Tamil  Nadu?  Is there  anyone who  does not  know about  AIDS?  How  many  men  and  women  do  not  have  sex  before marriage?  

Why are people saying that after the marriage the  husband and wife should be honest and faithful to  each  other?  One  should  have  confidence  in  the  other,  only  to  avoid  the  mistakes  from  being  committed. If the husband, without the knowledge  of the wife, or the wife, without the knowledge  of the husband, have sex with other persons, if a  disease  is  caused  through  that,  the  same  will  affect both the persons. It will also affect the  children. Only because of this, they are saying  like that.”   

However, soon after the publication of the above mentioned  

news  item,  the  appellant  had  sent  a  legal  notice  dated  

2.10.2005 to the Editor of ‘Dhina Thanthi’, categorically  

denying that she had made the statement quoted above. In  

fact, the appellant had asked the publisher to withdraw the  

news-item  carried  on  24.9.2005  and  to  publish  her  

objections prominently within three days of receipt of the  

notice, failing which the appellant would be constrained to  

take appropriate legal action against the newspaper.  

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5. As outlined above, the publication of these statements  

in ‘India Today’ and ‘Dhina Thanthi’ drew criticism from  

some quarters and several persons and organisations filed  

criminal  complaints  against  the  appellant.  For  instance,  

the complainant in the appeal arising out of SLP (Crl) No.  

4010 of 2008 has stated that she is a married woman who is  

the Treasurer of a District-level unit of the Pattali Makal  

Katchi [hereinafter ‘PMK’], a political party, and is also  

involved in social service. She had quoted some parts of  

the  statements  published  in  ‘India  Today’  and  ‘Dhina  

Thanthi’  to  allege  that  the  appellant’s  interview  had  

brought  great  shame  on  her  since  it  had  suggested  that  

women of her profile had engaged in premarital sex. The  

complainant  further  alleged  that  the  appellant’s  remarks  

had caused mental harassment to a large section of women,  

and in particular women from Tamil Nadu were being looked  

down upon with disrespect and contempt.  

6. In the appeal arising out of SLP (Crl.) 4764 of 2008,  

the  complainant  is  a  male  advocate  who  is  a  District  

Secretary of the PMK for Salem District. In his complaint,  

there is no direct reference to the news-item published in  

‘Dhina Thanthi’ on 24.9.2005. Instead the complainant has  

stated that he found second-hand accounts of the same to be  

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quite shocking since the appellant had questioned the need  

for women to maintain their virginity or chastity. It was  

alleged  that  these  remarks  were  an  abuse  against  the  

dignity  of  the  Tamil  women  and  that  they  had  grossly  

affected and ruined the culture and morality of the people  

of  the  State.  It  was  further  submitted  that  these  

statements could persuade people to involve themselves in  

unnatural crimes and that the appellant’s acts amounted to  

commission of offences punishable under Sections 499, 500,  

504, 505(1)(b)  and 509 IPC read with Section 3 and 4 of  

Act  1986.  Similarly,  in  the  appeal  arising  out  of  SLP  

(Crl.) 6127 of 2008, the complainant is a lady advocate who  

has been practicing in the Trichy District Courts for more  

than  10  years.  She  has  quoted  some  portions  from  the  

statements published in ‘India Today’ and ‘Dhina Thanthi’  

to submit that the appellant’s acts were punishable under  

Sections 292, 500, 504, 505(1)(b) and (c), 505(2) and 509  

IPC read with Section 6 of  Act 1986.  

7. Likewise, in the appeal arising out of SLP (Crl.) 6259  

of 2008, the complainant has stated that she is a married  

woman belonging to a reputed family and that she is serving  

as the President of the District Magalir Association of the  

PMK (in Thiruvarur) and rendering social service. In her  

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complaint, some parts of the appellant’s statements have  

been quoted to allege that she had suffered great mental  

agony and shame since it was suggested that all women in  

Tamil  Nadu  had  lost  their  virginity  before  marriage.  In  

this  respect,  the  complainant  has  alleged  that  the  

appellant had committed offences punishable under Sections  

499, 500, 504, 505(1)(b) and 509   IPC read with Section 6  

of Act 1986. It is noteworthy that in most of the other  

cases  filed  in  various  districts  of  Tamil  Nadu,  the  

complainants  are  functionaries  of  the  PMK  and  similar  

allegations have been levelled against the appellant. Oddly  

enough,  one  of  the  complaints  had  even  been  filed  in  

Indore, Madhya Pradesh.    

8. As mentioned earlier, the appellant approached the High  

Court  of  Madras  to  seek  quashing  of  all  the  criminal  

proceedings instituted against her in this connection. In  

its judgment dated 30.4.2008, the High Court  refused to  

quash the proceedings by  exercising its inherent powers  

under Section 482 Cr.PC, on the premise that the relevant  

considerations in this case were questions of fact which  

were best left to be determined by a trial judge. The High  

Court  noted that two basic questions were involved in the  

case. Firstly, whether the appellant could claim any of the  

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recognised  defences  against  the  allegations  of  having  

committed defamation, as contemplated by Section 499  IPC.  

Secondly,  whether  the  complainants  could  at  all  be  

described  as  ‘aggrieved  persons’  within  the  meaning  of  

Section 199 Cr.PC since that was linked to the question of  

whether the complaints had been made in a bona fide manner.  

The High Court thought it fit to leave both these questions  

for  consideration  by  a  trial  judge,  and  in  a  partial  

reprieve  to  the  appellant  it  was  directed  that  all  the  

criminal  proceedings  pending  against  her  be  consolidated  

and tried by the Chief Metropolitan Magistrate at Egmore,  

Chennai. However, the High Court also proceeded to record  

its  own  views  regarding  the  contents  of  the  appellant’s  

statements  and  even  made  some  strong  observations  

condemning  the  incidence  of  premarital  sex  and  live-in  

relationships.     

9. In the proceedings before us, Ms. Pinki Anand, learned  

counsel appearing for the appellant, has submitted that the  

complainants  (respondents  in  these  appeals)  were  not  

‘persons aggrieved’ within the meaning of Section 199(1)(b)  

Cr.PC  and  hence  they  were  not  competent  to  institute  

private complaints for the alleged offences. It was stated  

that the appellant had made a fair and reasonable comment  

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as a prudent person, and therefore, the opinion expressed  

by the appellant is fully protected under Article 19(1)(a)  

of the Constitution of India which guarantees freedom of  

speech and expression to all citizens. Furthermore, it was  

contended  that  even  if  the  allegations  in  the  various  

complaints are taken on their face value and accepted in  

their  entirety,  the  same  do  not  disclose  any  offence  

whatsoever and the opinion of the appellant does not, by  

any means, fall within the ambit of Sections 499, 500 and  

505  IPC  or  Sections  3  and  4  of  Act  1986.  It  was  also  

canvassed that the criminal proceedings had been instituted  

in  a  mala  fide  manner  by  the  workers  of  a  particular  

political  party,  with  the  intention  of  vilifying  the  

appellant and gaining undue political mileage.  

10. In response, Sh. Kanagaraj, Sr. Adv., Sh. S. Gowthaman,  

Adv. and Sh. B. Balaji, Adv. appearing for the respondents,  

submitted that since the High Court has refused to quash  

the  complaints,  this  Court  should  not  interfere  either  

since  the  complaints  require  determination  of  factual  

controversies that are best left to be decided by a court  

of first instance. They have asserted that the complainants  

in these cases are mostly women belonging to Tamil Nadu,  

who were personally aggrieved by the appellant’s remarks.  

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It was argued that the endorsement of pre-marital sex by a  

prominent person such as the appellant would have a morally  

corruptive  effect  on  the  minds  of  young  people.  Her  

statement would definitely obscure some basic moral values  

and expose young people to bizarre ideas about premarital  

sex,  thereby  leading  to  deviant  behaviour  which  would  

adversely  affect  public  notions  of  morality.  It  was  

contended that the constitutional protection for speech and  

expression  is  not  absolute  and  that  it  is  subject  to  

reasonable restrictions based on considerations of ‘public  

order’,  ‘defamation’,  ‘decency  and  morality’  among  other  

grounds.          

11.  We  have  considered  the  rival  submissions  made  by  

learned counsel for the parties and perused the record.  

12. In order to decide this case, it will not be proper for  

us to either condemn or endorse the views expressed by the  

appellant.  When  the  criminal  law  machinery  is  set  in  

motion,  the  superior  courts  should  not  mechanically  use  

either  their  inherent  powers  or  writ  jurisdiction  to  

intervene  with  the  process  of  investigation  and  trial.  

However, such forms of judicial review can be exercised to  

prevent a miscarriage of justice or to correct some grave  

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errors that might have been committed by the subordinate  

courts. [See decision of this Court in:  M/s Pepsi Foods  

Ltd. & Anr. Vs.  Special Judicial Magistrate & Ors., AIR  

1998 SC 128]. In the past, this Court has even laid down  

some guidelines for the exercise of inherent power by the  

High  Courts  to  quash  criminal  proceedings  in  such  

exceptional cases. We can refer to the decision in State of  

Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., AIR 1992 SC 604,  

to take note of two such guidelines which are relevance for  

the present case :-     

“(1).  Where  the  allegations  made  in  the  First  Information Report or the complaint, even if they  are  taken at  their face  value and  accepted in  their entirety do not prima facie constitute any  offence or make out a case against the accused.  

… (7). Where a criminal proceeding is manifestly  attended  with  mala  fide  and/or  where  the  proceeding  is  maliciously  instituted  with  an  ulterior  motive  for  wreaking  vengeance  on  the  accused  and  with  a  view  to  spite  him  due  to  private and personal grudge.”  

13. It is of course a settled legal proposition that in a  

case  where  there  is  sufficient  evidence  against  the  

accused, which may establish the charge against him/her,  

the proceedings cannot be quashed. In M/s Medchl Chemicals  

& Pharma Ltd. Vs. M/s Biological E. Ltd. & Ors., AIR 2000  

SC 1869, this Court observed that a criminal complaint or a  

charge  sheet  can  only  be  quashed  by  superior  courts  in  

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exceptional circumstances, such as when the allegations in  

a  complaint  do  not  support  a  prima  facie  case  for  an  

offence. Similarly, in M/s Zandu Pharmaceutical Works Ltd.  

& Ors. Vs. Mohd. Sharaful Haque & Ors., AIR 2005 SC 9, this  

Court has held that criminal proceedings can be quashed but  

such a power is to be exercised sparingly and only when  

such an exercise is justified by the tests that have been  

specifically  laid  down  in  the  statutory  provisions  

themselves. It was further observed that superior courts  

“may examine the questions of fact” when the use of the  

criminal law machinery could be in the nature of an abuse  

of  authority  or  when  it  could  result  in  injustice.  In  

Shakson Belthissor Vs.  State of Kerala & Anr., (2009) 14  

SCC 466, this Court relied on earlier precedents to clarify  

that  a  High  Court  while  exercising  its  inherent  

jurisdiction should not interfere with a genuine complaint  

but  it  should  certainly  not  hesitate  to  intervene  in  

appropriate cases. In fact it was observed:  

“One  of  the  paramount  duties  of  the  superior  courts is to see that a person who is apparently  innocent  is  not  subjected  to  prosecution  and  humiliation on the basis of a false and wholly  untenable complaint.”    

14. There can be no quarrel about this Court’s competence  

to  quash  criminal  proceedings  pending  before  the  

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subordinate courts. However, this power must be exercised  

sparingly and with circumspection. In light of the position  

summarized above, we can examine the present case with two  

considerations in mind, namely whether the allegations made  

against the appellant support a prima facie case for the  

offences  mentioned  in  the  respective  complaints,  and  

whether the complaints were made in a bona fide manner.

15.  Perusal  of  the  complaints  reveals  that  most  of  the  

allegations have pertained to offences such as defamation  

(Sections  499,  501  and  502  IPC),  obscenity  (Section  292  

IPC), indecent representation of women and incitement among  

others. At the outset, we are of the view that there is  

absolutely no basis for proceeding against the appellant in  

respect of some of the alleged offences. For example, the  

Act, 1986 was enacted to punish publishers and advertisers  

who knowingly disseminate materials that portray women in  

an indecent manner. However, this statute cannot be used in  

the present case where the appellant has merely referred to  

the incidence of pre-marital sex in her statement which was  

published by a news magazine and subsequently reported in  

another  periodical.  It  would  defy  logic  to  invoke  the  

offences mentioned in this statute to proceed against the  

appellant, who cannot be described as an ‘advertiser’ or  

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‘publisher’  by  any  means.  Similarly,  Section  509  IPC  

criminalises a ‘word, gesture or act intended to insult the  

modesty of a woman’ and in order to establish this offence  

it is necessary to show that the modesty of a particular  

woman or a readily identifiable group of women has been  

insulted by a spoken word, gesture or physical act. Clearly  

this  offence  cannot  be  made  out  when  the  complainants’  

grievance is with the publication of what the appellant had  

stated in a written form. Likewise, some of the complaints  

have  mentioned  offences  such  as  those  contemplated  by  

Section  153A  IPC  (‘Promoting  enmity  between  different  

groups  etc.,’)  which  have  no  application  to  the  present  

case since the appellant was not speaking on behalf of one  

group and the content of her statement was not directed  

against any particular group either.   

16. Coming to the substance of the complaints, we fail to  

see how the appellant’s remarks amount to ‘obscenity’ in  

the context of Section 292 IPC. Clause (1) to Section 292  

states  that  the  publication  of  a  book,  pamphlet,  paper,  

writing,  drawing,  painting,  representation,  figure,  etc.,  

will be deemed obscene, if –

• It is lascivious (i.e. expressing or causing sexual  

desire) or

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• Appeals  to  the  prurient  interest  (i.e.  excessive  

interest in sexual matters), or  

• If its effect, or the effect of any one of the items,  

tends to deprave and corrupt persons, who are likely  

to read, see, or hear the matter contained in such  

materials.    

In the past, authors as well as publishers of artistic and  

literary works have been put to trial and punished under  

this section. In the present case, the appellant takes full  

responsibility  for  her  statement  which  was  published  in  

‘India Today’, a leading news magazine. It would be apt to  

refer  back  to  the  decision  of  this  Court  in  Ranjit  D.  

Udeshi  Vs.  State of Maharashtra, AIR 1965 SC 881, wherein  

it was held that if a mere reference to sex by itself is  

considered obscene, no books can be sold except those which  

are purely religious. It was observed that in the field of  

art and cinema, the adolescent is shown situations which  

even  a  quarter  of  a  century  ago  would  be  considered  

derogatory to public morality, but having regard to changed  

conditions, the same are taken for granted without in any  

way tending to debase or debauch the mind. What is to be  

considered is whether a class of persons, not an isolated  

case, into whose hands the book, article or story falls  

will suffer in their moral outlook or become depraved by  

reading  it  or  might  have  impure  and  lecherous  thoughts  

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aroused in their minds. Even though the decision in that  

case had upheld a conviction for the sale of a literary  

work,  it  became  clear  that  references  to  sex  cannot  be  

considered obscene in the legal sense without examining the  

context of the reference.   

17. This position was later clarified in Samaresh Bose Vs.  

Amal Mitra, AIR 1986 SC 967, where the Court held that in  

judging the question of obscenity, the judge in the first  

place should try to place himself in the position of the  

author  and  from  the  viewpoint  of  the  author,  the  judge  

should try to understand what is it that the author seeks  

to  convey  and  whether  what  the  author  conveys  has  any  

literary and artistic value.  Judge should thereafter place  

himself in the position of a reader of every age group in  

whose hands the book is likely to fall and should try to  

appreciate  what  kind  of  possible  influence  the  book  is  

likely to have on the minds of the reader.  

18. There are numerous other decisions, both from India and  

foreign country which mandate that ‘obscenity’ should be  

gauged  with  respect  to  contemporary  community  standards  

that  reflect  the  sensibilities  as  well  as  the  tolerance  

levels of an average reasonable person. Owing to the clear  

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formulation on this issue it is not necessary for us to  

discuss these precedents at length. In the present case,  

the  appellant  has  merely  referred  to  the  increasing  

incidence of pre-marital sex and called for its societal  

acceptance.  At  no  point  of  time  appellant  described  the  

sexual  act  or  said  anything  that  could  arouse  sexual  

desires in the mind of a reasonable and prudent reader.  

Furthermore, the statement has been made in the context of  

a survey which has touched on numerous aspects relating to  

the sexual habits of people in big cities. Even though this  

survey was not part of a literary or artistic work, it was  

published in a news magazine thereby serving the purpose of  

communicating  certain  ideas  and  opinions  on  the  above-

mentioned  subject.  In  the  long  run,  such  communication  

prompts a dialogue within society wherein people can choose  

to either defend or question the existing social mores. It  

is difficult to appreciate the claim that the statements  

published  as  part  of  the  survey  were  in  the  nature  of  

obscene communications.  

19. We must also respond to the claim that the appellant’s  

remarks could have the effect of misguiding young people by  

encouraging them to indulge in premarital sex. This claim  

is  a  little  far-fetched  since  the  appellant  had  not  

18

directed  her  remarks  towards  any  individual  or  group  in  

particular.  All  that  the  appellant  did  was  to  urge  the  

societal  acceptance  of  the  increasing  instances  of  

premarital  sex  when  both  partners  are  committed  to  each  

other. This cannot be construed as an open endorsement of  

sexual activities of all kinds. If it were to be considered  

so, the criminal law machinery would have to take on the  

unenforceable task of punishing all writers, journalists or  

other  such  persons  for  merely  referring  to  any  matter  

connected with sex in published materials. For the sake of  

argument,  even  if  it  were  to  be  assumed  that  the  

appellant’s  statements  could  encourage  some  people  to  

engage in premarital sex, no legal injury has been shown  

since the latter is not an offence.  

20. “Offence”  means  ‘an  act  or  instance  of  offending’;  

‘commit an illegal act’ and illegal means, ‘contrary to or  

forbidden by law’.   

“Offence” has to be read and understood in the context  

as it has been prescribed under the provisions of Sections  

40, 41 and 42 IPC which cover the offences punishable under  

I.P.C. or under special or local law or as defined under  

Section  2(n)  Cr.P.C.  or   Section  3(38)  of  the  General  

Clauses  Act,  1897  (vide  Proprietary  Articles  Trade  

19

Association Vs. Attorney General for Canada AIR 1931 PC 94;  

Thomas Dana Vs. State of Punjab AIR 1959 SC 375; Jawala Ram  

& Ors. Vs. The State of Pepsu (now Punjab) & Ors. AIR 1962  

SC 1246; and Standard Chartered Bank & Ors. Vs. Directorate  

of Enforcement & Ors. AIR 2006 SC 1301).

21. While  it  is  true  that  the  mainstream  view  in  our  

society  is  that  sexual  contact  should  take  place  only  

between  marital  partners,  there  is  no  statutory  offence  

that  takes  place  when  adults  willingly  engage  in  sexual  

relations outside the marital setting, with the exception  

of ‘adultery’ as defined under Section 497 IPC. At this  

juncture, we may refer to the decision given by this Court  

in Lata Singh Vs. State of U.P. & Anr., AIR 2006 SC 2522,  

wherein it was observed that a live-in relationship between  

two consenting adults of heterogenic sex does not amount to  

any  offence  (with  the  obvious  exception  of  ‘adultery’),  

even though it may be perceived as immoral.  A major girl  

is free to marry anyone she likes or “live with anyone she  

likes”.  In that case, the petitioner was a woman who had  

married  a  man  belonging  to  another  caste  and  had  begun  

cohabitation with him. The petitioner’s brother had filed a  

criminal complaint accusing her husband of offences under  

Sections  366  and  368  IPC,  thereby  leading  to  the  

20

commencement  of  trial  proceedings.  This  Court  had  

entertained a writ petition and granted relief by quashing  

the criminal trial. Furthermore, the Court had noted that  

‘no offence was committed by any of the accused and the  

whole criminal case in question is an abuse of the process  

of the Court’.   

22. It would also be instructive to refer to a decision of  

the House of Lords (U.K.) in Gillick Vs.  West Norfolk and  

Wisbech Area Health Authority, (1985) 3 All ER 402. In that  

case, mother of a teenage girl had questioned the decision  

of the National Health Service (NHS) to issue a circular to  

local  area  health  authorities  which  contained  guidelines  

for rendering advice about contraceptive methods to girls  

under the age of 16 years. Objections were raised against  

this  circular  on  the  ground  that  the  health  service  

authorities  had  no  competence  to  render  such  advice  and  

that doing so could adversely affect young children while  

at the same time interfering with parental autonomy in the  

matter  of  bringing  up  children.  The  majority  decision  

rejected the challenge against the circular by clarifying  

that the rendering of advice about contraceptive methods  

and their provision by medical professionals did not amount  

to a sexual offence. Among the several aspects discussed in  

21

that case, it was held that the provision of information  

about contraceptive facilities to girls under the age of 16  

years  could  not  be  opposed  on  the  ground  that  such  

information  could  potentially  encourage  more  sexual  

activity by the teenagers. For the purpose of the present  

case,  this  decision  supports  the  reasoning  that  we  must  

fully  understand  the  context  and  the  purpose  for  which  

references to sex have been made in any given setting.    

23. We now turn to the question whether the appellant’s  

remarks could reasonably amount to offence of defamation as  

defined under Section 499 IPC.  In the impugned judgment  

dated 30.4.2008, the High Court observed that as to whether  

the appellant could claim a defence against the allegations  

of defamation was a factual question and thus would  be  

decided by a trial Court.  However, even before examining  

whether  the  appellant  can  claim  any  of  the  statutory  

defences in this regard, the operative question is whether  

the allegations in the impugned complaints support a prima  

facie case  of  defamation  in  the  first  place.  It  is  our  

considered  view  that  there  is  no  prima  facie  case  of  

defamation  in  the  present  case.  This  will  become  self-

evident if we draw attention to the key ingredients of the  

22

offence  contemplated  by  Section  499  IPC,  which  reads  as  

follows:   

“499.  Defamation.-  Whoever,  by  words  either  spoken or intended to be read, or by signs or by  visible  representations,  makes  or  publishes  any  imputation  concerning  any  person  intending  to  harm, or knowing or having reason to believe that  such imputation will harm, the reputation of such  person, is said, except in the cases hereinafter  expected, to defame that person.  

Explanation 1. – It may amount to defamation to  impute  anything  to  a  deceased  person,  if  the  imputation  would  harm  the  reputation  of  that  person if living, and is intended to be hurtful  to  the  feelings  of  his  family  or  other  near  relatives.  

Explanation 2. –  It may amount to defamation to  make  an  imputation  concerning  a  company  or  an  association or collection of persons as such.  

Explanation 3. – An imputation in the form of an  alternative  or  expressed  ironically,  may  amount  to defamation.  

Explanation 4.- No imputation is said to harm a  person’s  reputation,  unless  that  imputation  directly  or  indirectly,  in  the  estimation  of  others,  lowers  the  moral  or  intellectual  character of that person, or lowers the character  of that person in respect of his caste or of his  calling, or lowers the credit of that person, or  causes it to be believed that the body of that  person is in a loathsome state, or in a state  generally considered as disgraceful. …”     (emphasis supplied)  

The definition makes it amply clear that the accused must  

either intend to harm the reputation of a particular person  

23

or reasonably know that his/her conduct could cause such  

harm. Explanation 2 to Section 499 further states that ‘It  

may amount to defamation to make an imputation concerning a  

company  or  an  association  or  collection  of  persons  as  

such.’  

24. With regard to the complaints in question, there is  

neither any intent on part of the appellant to cause harm  

to the reputation of the complainants nor can we discern  

any actual harm done to their reputation. In short, both  

the elements i.e.  mens rea and actus reus are missing. As  

mentioned earlier, the appellant’s statement published in  

‘India  Today’  (in  September  2005)  is  a  rather  general  

endorsement  of  premarital  sex  and  her  remarks  are  not  

directed  at  any  individual  or  even  at  a  ‘company  or  an  

association or collection of persons’. It is difficult to  

fathom how the appellant’s views can be construed as an  

attack on the reputation of anyone in particular. Even if  

we refer to the remarks published in ‘Dhina Thanthi’ (dated  

24.9.2005)  which  have  been  categorically  denied  by  the  

appellant, there is no direct attack on the reputation of  

anyone in particular. Instead, the purported remarks are in  

the nature of rhetorical questions wherein it was asked if  

people in Tamil Nadu were not aware of the incidence of  

24

sex. Even if we consider these remarks in their entirety,  

nowhere has it been suggested that all women in Tamil Nadu  

have engaged in premarital sex. That imputation can only be  

found  in  the  complaints  that  were  filed  by  the  various  

respondents. It is a clear case of the complainants reading  

in too much into the appellant’s remarks.  

25. This takes us to the question of whether the impugned  

complaints  were  made  in  a  bona  fide  manner.  As  we  have  

already noted, most of the complainants are associated with  

the PMK, a political party which is active in the State of  

Tamil Nadu. This fact does add weight to the suggestion  

that  the  impugned  complaints  have  been  filed  with  the  

intention  of  gaining  undue  political  mileage.  It  may  be  

reiterated  here  that  in  respect  of  the  offence  of  

defamation, Section 199 Cr.PC mandates that the Magistrate  

can take cognizance of the offence only upon receiving a  

complaint by a person who is aggrieved. This limitation on  

the  power  to  take  cognizance  of  defamation  serves  the  

rational purpose of discouraging the filing of frivolous  

complaints  which  would  otherwise  clog  the  Magistrate’s  

Courts. There is of course some room for complaints to be  

brought by persons other than those who are aggrieved, for  

instance when the aggrieved person has passed away or is  

25

otherwise unable to initiate legal proceedings. However, in  

given facts of the present case, we are unable to see how  

the  complainants  can  be  properly  described  as  ‘persons  

aggrieved’ within the meaning of Section 199(1)(b)  Cr.PC.  

As explained earlier, there was no specific legal injury  

caused  to  any  of  the  complainants  since  the  appellant’s  

remarks were not directed at any individual or a readily  

identifiable  group  of  people.  In  M.S.  Jayaraj Vs.  

Commissioner of Excise, Kerala & Ors., (2000) 7 SCC 552,  

this Court observed as under:  

“The  ‘person  aggrieved’  means  a  person  who  is  wrongfully deprived of his entitlement which he  is legally entitled to receive and it does not  include  any  kind  of  disappointment  or  personal  inconvenience. ‘Person aggrieved’ means a person  who is injured or one who is adversely affected  in a legal sense.”  

26. We can also approvingly refer to an earlier decision of  

this Court in  G. Narasimhan & Ors. Vs. T.V. Chokappa, AIR  

1972 SC 2609. In that case a controversy had arisen after  

‘The  Hindu’,  a  leading  newspaper  had  published  a  report  

about  a  resolution  passed  by  the  Dravida  Kazhagham,  a  

political party, in its conference held on January 23-24,  

1971. Among other issues, the resolution also included the  

following words:  

“It should not be made an offence for a person’s  wife to desire another man.”

26

The Hindu, in its report, gave publicity to this resolution  

by using the following words:  

“The  Conference  passed  a  resolution  requesting  the Government to take suitable steps to see that  coveting  another  man’s  wife  is  not  made  an  offence under the Indian Penal Code.”

 A complaint under Sections 499, 500 and 501 IPC was filed  

in  response  to  this  report.  Like  the  present  case,  the  

Court  had  to  consider  whether  the  complainant  had  the  

proper legal standing to bring such a complaint. The Court  

did examine Section 198 of the Code of Criminal Procedure,  

1898  (analogous  to  Section  199  of  the  Cr.PC.  1973)  and  

observed that the said provision laid down an exception to  

the general rule that a criminal complaint can be filed by  

anyone irrespective of whether he is an “aggrieved person”  

or not.  But there is a departure from this norm in so far  

as the provision permits only an “aggrieved person” to move  

the Court in case of defamation. This section is mandatory  

and it is a settled legal proposition that if a Magistrate  

were to take cognizance of the offence of defamation on a  

complaint filed by one who is not an “aggrieved person”,  

the trial and conviction of an accused in such a case by  

the  Magistrate  would  be  void  and  illegal.  This  Court  

further  noted  that  the  news-item  in  question  did  not  

mention  any  individual  person  nor  did  it  contain  any  

27

defamatory imputation against any individual. Accordingly,  

it  was  held  that  the  complainant  was  not  a  ‘person  

aggrieved’ within the meaning of Section 198  CrPC, 1898.  

The Court also took note of Explanation 2 to Section 499  

IPC  which  contemplates  defamation  of  ‘a  company  or  an  

association  or  any  collection  of  persons  as  such’.  

Undoubtedly,  the  explanation  is  wide  but  in  order  to  

demonstrate the offence of defamation, such a collection of  

persons must be an identifiable body so that it is possible  

to say with precision that a group of particular persons,  

as  distinguished  from  the  rest  of  the  community  stood  

defamed. In case the identity of the collection of persons  

is not established so as to be relatable to the defamatory  

words or imputations, the complaint is not maintainable. In  

case a class is mentioned, if such a class is indefinite,  

the complaint cannot be entertained. Furthermore, if it is  

not possible to ascertain the composition of such a class,  

the criminal prosecution cannot proceed.     

While deciding the case, this Court placed reliance on  

the judgment of the House of Lords in Knupffer Vs. London  

Express Newspaper Ltd. (1944) 1 ALL ER 495, wherein it had  

been held that it is an essential element of the cause of  

action for defamation that the words complained of should  

be published “of the complainant/plaintiff”.  Where he is  

28

not  named,  the  test  would  be  whether  the  words  would  

reasonably  lead  people  acquainted  with  him  to  the  

conclusion that he was the person referred to.

In fact, it is the reputation of an individual person  

which must be in question and only such a person can claim  

to have “a legal peg for a justifiable claim to hang on”.

27.  Coming  back  to  the  facts  of  the  present  case,  the  

complainants  have  alleged  defamation  in  respect  of  

imputations against the character of Tamil-speaking women,  

which  could  perhaps  be  viewed  as  a  class  of  persons.  

However,   we  have  already  explained,  the  appellant’s  

remarks did not suggest that all women in Tamil Nadu have  

engaged in premarital sex. In fact her statement in ‘India  

Today’ did not refer to any specific individual or group at  

all. If we refer to one of the questions asked as part of  

the concerned survey, one of the answers shows that 26% of  

the people who responded to the same did not think that it  

was necessary for women to retain their virginity till the  

time of marriage. Clearly the appellant was not alone in  

expressing such a view, even though it may be unpopular or  

contrary  to  the  mainstream  social  practices.  Even  if  it  

were assumed that the news-item carried in ‘Dhina Thanthi’  

caused  mental  agony  to  some  sections  of  women  in  Tamil  

29

Nadu, there is no prima facie case for any offence. What is  

interesting to note is that not all of the complainants are  

women,  and  in  fact  almost  all  the  complainants  are  

associated with a particular political party.   

28. We are of the view that the institution of the numerous  

criminal  complaints  against  the  appellant  was  done  in  a  

mala  fide  manner.  In  order  to  prevent  the  abuse  of  the  

criminal law machinery, we are therefore inclined to grant  

the  relief  sought  by  the  appellant.  In  such  cases,  the  

proper  course  for  Magistrates  is  to  use  their  statutory  

powers  to  direct  an  investigation  into  the  allegations  

before taking cognizance of the offences alleged. It is not  

the task of the criminal law to punish individuals merely  

for expressing unpopular views. The threshold for placing  

reasonable  restrictions  on  the  ‘freedom  of  speech  and  

expression’ is indeed a very high one and there should be a  

presumption in favour of the accused in such cases. It is  

only when the complainants produce materials that support a  

prima facie case for a statutory offence that Magistrates  

can  proceed  to  take  cognizance  of  the  same.  We  must  be  

mindful  that  the  initiation  of  a  criminal  trial  is  a  

process which carries an implicit degree of coercion and it  

30

should not be triggered by false and frivolous complaints,  

amounting to harassment and humiliation to the accused.    

29. Even though the constitutional freedom of speech and  

expression  is  not  absolute  and  can  be  subjected  to  

reasonable  restrictions  on  grounds  such  as  ‘decency  and  

morality’ among others, we must lay stress on the need to  

tolerate unpopular views in the socio-cultural space. The  

framers of our Constitution recognised the importance of  

safeguarding this right since the free flow of opinions and  

ideas is essential to sustain the collective life of the  

citizenry. While an informed citizenry is a pre-condition  

for meaningful governance in the political sense, we must  

also promote a culture of open dialogue when it comes to  

societal attitudes. Admittedly, the appellant’s remarks did  

provoke a controversy since the acceptance of premarital  

sex  and  live-in  relationships  is  viewed  by  some  as  an  

attack on the centrality of marriage. While there can be no  

doubt  that  in  India,  marriage  is  an  important  social  

institution, we must also keep our minds open to the fact  

that there are certain individuals or groups who do not  

hold the same view. To be sure, there are some indigenous  

groups within our country wherein sexual relations outside  

the marital setting are accepted as a normal occurrence.  

31

Even in the societal mainstream, there are a significant  

number  of  people  who  see  nothing  wrong  in  engaging  in  

premarital sex. Notions of social morality are inherently  

subjective and the criminal law cannot be used as a means  

to unduly interfere with the domain of personal autonomy.  

Morality  and  Criminality  are  not  co-extensive.  In  the  

present  case,  the  substance  of  the  controversy  does  not  

really  touch  on  whether  premarital  sex  is  socially  

acceptable.  Instead,  the  real  issue  of  concern  is  the  

disproportionate  response  to  the  appellant’s  remarks.  If  

the complainants vehemently disagreed with the appellant’s  

views, then they should have contested her views through  

the news media or any other public platform. The law should  

not be used in a manner that has chilling effects on the  

‘freedom  of  speech  and  expression’.  It  would  be  apt  to  

refer to the following observations made by this Court in  

S. Rangarajan Vs. P. Jagjivan Ram & Ors., (1989) 2 SCC 574,  

which spell out the appropriate approach for examining the  

scope of ‘reasonable restrictions’ under Art. 19(2) of the  

Constitution that can be placed on the freedom of speech  

and expression:-  

“  …  Our  commitment  of  freedom  of  expression  demands that it cannot be suppressed unless the  situations  created  by  allowing  the  freedom  are  pressing  and  the  community  interest  is  endangered. The anticipated danger should not be  remote,  conjectural  or  far-fetched.  It  should  

32

have  proximate  and  direct  nexus  with  the  expression. The expression of thought should be  intrinsically dangerous to the public interest.  In  other  words,  the  expression  should  be  inseparably  locked  up  with  the  action  contemplated like the equivalent of a ‘spark in a  powder keg’.  

The Court further held:  

“ … The standard to be applied by the Board or  courts for judging the film should be that of an  ordinary man of common sense and prudence and not  that of an out of the ordinary or hypersensitive  man  …  The  different  views  are  allowed  to  be  expressed by proponents and opponents not because  they are correct, or valid but because there is  freedom  in  this  country  for  expressing  even  differing  views  on  any  issue.  …  Freedom  of  expression  which  is  legitimate  and  constitutionally  protected,  cannot  be  held  to  ransom  by  an  intolerant  group  of  people.  The  fundamental freedom under Article 19(1)(a) can be  reasonably  restricted  only  for  the  purposes  mentioned  in  Article  19(2)  and  the  restriction  must be justified on the anvil of necessity and  not the quicksand of convenience or expediency.  Open  criticism  of  government  policies  and  operations  is  not  a  ground  for  restricting  expression.  We  must  practice  tolerance  of  the  views of others. Intolerance is as much dangerous  to democracy as to the person himself.”

30. Thus,  dissemination  of  news  and  views  for  popular  

consumption is permissible under our constitutional scheme.  

The  different  views  are  allowed  to  be  expressed  by  the  

proponents and opponents. A culture of responsible reading  

is to be inculcated amongst the prudent readers. Morality  

and  criminality    are  far  from  being  co-extensive.  An  

expression of opinion in favour of non-dogmatic and non-

33

conventional  morality  has  to  be  tolerated  as  the  same  

cannot be a ground to penalise the author.  

31. Before saying omega, it is necessary for us to point  

out certain unwarranted developments that have taken place  

ever since the matter was heard till date.  In fact, during  

the  course  of  hearing,  certain  queries  were  put  to  the  

learned counsel appearing for parties so as to clarify the  

legal issue involved in the matter but unfortunately, those  

queries have been highly misunderstood not only by media  

but also by common man.  As a result thereof, we have been  

flooded with several letter petitions making a prayer for  

review  of  the  order  passed  by  us.   It  is  pertinent  to  

mention here that no order was passed by us and only during  

the course of hearing, we had either given some instances  

or put some questions to the learned counsel which were  

answered by them.  Thus, this hyper active attitude of the  

common man was, indeed, not called for.  Some have even  

gone to the extent of telling us that we should have known  

the Indian mythology before putting such question. Thus,  

whatever  we  have  said  during  the  course  of  the  hearing  

should  be  reviewed.   We  fail  to  understand  how  such  an  

attitude could be adopted by those learned persons who were  

involved  in  sending  various  letter  petitions  to  us.  

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Admittedly, all those persons who have sent letters to us  

were  not  present  on  that  particular  date  but  must  have  

gathered information from the print and electronic media  

which evoked their sentiments to such an extent that they  

prayed for review.   

32. It is, therefore, not only desirable but imperative  

that electronic and news media should also play positive  

role in presenting to general public as to what actually  

transpires during the course of the hearing and it should  

not be published in such a manner so as to get unnecessary  

publicity  for  its  own  paper  or  news  channel.   Such  a  

tendency, which is indeed growing fast, should be stopped.  

We  are  saying  so  as  without  knowing  the  reference  in  

context of which the questions were put forth by us, were  

completely ignored and the same were misquoted which raised  

unnecessary hue and cry.   

33. We hope and trust in future, they would be little more  

careful, responsible and cautious in this regard.     

34.  In  conclusion,  we  find  that  the  various  complaints  

filed against the appellant do not support or even draw a  

prima  facie  case  for  any  of  the  statutory  offences  as  

alleged.  Therefore,  the  appeals  are  allowed  and  the  

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impugned  judgment  and  order  of  the  High  Court  dated  

30.4.2008 is set aside. The impugned criminal proceedings  

are hereby quashed.  

……………………….CJI.

  .………………………. J.  (DEEPAK VERMA)

 .………………………. J.  

(Dr. B.S. CHAUHAN)  

New Delhi  April 28, 2010

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