The Madras High Court on Tuesday stayed proceedings in a lower court against a Tamil magazine editor in a case filed against him for publishing articles allegedly disparaging Tamil Nadu Governor Banwarilal Purohit.
Granting the interim relief to R Gopal, the editor of 'Nakkheeran', Justice N Anand Venkatesh observed it was the first case after the country's independence wherein the court has been called upon to consider whether a publication by itself will have the effect of overawing a Governor so as to prevent him from exercising his lawful powers and duties.
Gopal was arrested on October 9 last year under Section 124 of the Indian Penal Code (IPC) which relates to "assaulting President, Governor etc with intent to compel or restrain the exercise of any lawful power", triggering a controversy.
However, he had walked free within hours after a court rejected the police's plea for his remand and released him on a personal bond.
The case had been filed on a complaint from the Raj Bhavan over publication of a series of articles in Nakkheeran related to a woman assistant professor of a private college who allegedly asked girl students to extend sexual favours to university officials in return for marks and money.
The scandal came to light in April this year after an audio tape of a purported conversation between Nirmala Devi and some students surfaced.
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Purohit had rejected the professor's purported claim in the audio about knowing him and having access to him. Purohit insisted he did not know her.
The arrest of the Editor under Section 124 of teh IPC had drawn condemnation from opposition parties led by the DMK.
Gopal filed the present petition in the high court seeking quashing of the case.
When the matter came up for hearing, Justice Venkatesh stayed all proceedings before the II Metropolitan Magistrate Court in Egmore here and said two questions of laws have to be decided in the matter.
The first was whether the FIR and materials collected by the Investigating Officer during the probe made out an offence under Section 124 of IPC against the petitioner.
The second was whether the lower court was right in taking cognisance of the final report filed by police.
"This is the first case after independence wherein the Court has been called upon to consider whether a publication by itself will have the effect of overawing his Excellency the Governor to prevent him from exercising his lawful powers and duties," the judge said in his interim order.
In order to satisfy the requirements of the word "overawe", there must be something more than the creation of an apprehension, alarm or even perhaps fear.
To understand the issue even better, Section 124 has the ingredients similar to section 353 of IPC (Assault or criminal force to deter public servant from discharge of his duty). The latter, which applies to public servants, is a generic version of section 124, he said.
He further said the Supreme Court while dealing with a case under section 353 had said criminal force or an assault could not be said to have occurred because of publication of a post in the Facebook, however malicious it may be.
The related issue would be if assuming the publication in the magazine made was construed as malicious and it harmed the reputation of the Governor of Tamil Nadu, can that by itself satisfy the requirement of the term "Overawe" under Section 124 of IPC. This fundamental question required consideration in this case, he added.
He then referred to the second issue raised by the counsel for petitioner that the lower court ought not to have taken cognisance of the final report filed by the police.
The petitioner contended Section 196 of the Code of Criminal Procedure makes it mandatory that no court shall take cognisance of any offence punishable under Chapter VI or under Section 505 of IPC except with the previous sanction of the Centre or the state government.
Justice Venkatesh said though the government submitted sanction had been granted, there was no prima facie material which showed application of mind by the lower court with regard to the sanction at the time of taking cognisance. This issue also requires consideration.
Holding that prima facie case was in favour of the petitioner, he granted the stay and posted the matter for further hearing to July 8.
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