equal rights

Article 19 (1) (a) of the Indian Constitution establishes the correlative right to be funny. – Madras High Court

For an act to constitute a crime, there are four stages, i) intention, ii) preparation, iii) attempt and iv) accomplishment. While penal laws intervene only at the third and fourth stages normally, even preparation is made an offence in certain cases. Section 399 of IPC is one such provision. Section 122 IPC is another. Any penal provision must be strictly construed. Application of the provisions which penalize even preparation must meet a higher threshold. These were looked into by the bench of Honourable Mr. Justice G.R. Swaminathan in the case of Mathivanan v. The Inspector of Police & ors (Crl OP(MD)No.18337 of 2021).

The crux of the case is the petitioner herein is an important office-bearer of a political party CPI (ML). the petitioner went on a sightseeing pleasure trip with his daughter and son-in-law to Sirumalai hills. He posted photographs taken on the occasion in his Facebook page with caption “Trip to Sirumalai for shooting practice” as a maiden attempt at humour. Vadipatty Police thought the petitioner was preparing to wage war against the State. They registered a case in Crime No.415 of 2021 against the petitioner for the offences under Sections 120B, 122, 505(1)(b) and 507 of IPC and arrested the petitioner and produced him before the jurisdictional magistrate for remanding him to custody. The Judicial Magistrate, Vadipatty, had refused remand, bearing in mind the principles laid down in State v. Nakeeran Gopal (2019 SCC Online Mad 42) and passed a detailed rejection order. This criminal original petition has been filed to quash the FIR itself.

The learned counsel for the petitioner reiterated all the contentions set out in the memorandum of grounds and submitted that the very registration of the impugned FIR is an abuse of legal process. Per contra, the learned Additional Public Prosecutor appearing for the respondents submitted that no case for quashing has been made out.

The learned bench of Honourable Mr. Justice G.R. Swaminathan observed and stated that “None of the ingredients set out in Section 122, 505(1) (b) and Section 507 are present in this case. Section 120 B of IPC cannot be invoked for two reasons. Firstly, the petitioner is the sole accused. To constitute the offence of conspiracy, there must be a meeting of two or more minds. One cannot conspire with oneself. Secondly, conspiracy is hatched to commit an offence mentioned in the Section. When the ingredients of the primary offences have been shown to be non-existent, the prosecution cannot hang on to Section 120B IPC alone. 13.The very registration of the impugned FIR is absurd and an abuse of legal process. It stands quashed. The criminal original petition is allowed. Connected miscellaneous petition is closed.

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Judgement reviewed by Himanshu Ranjan

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