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“Who ? What ? and Where?” test which is employed to determine whether the words amount to a hate speech or not can be invoked in the context of Section 153 of IPC also. The petitioner had only posted the text on his Face Book page. They are no doubt defamatory. These were upheld by Madras High Court through the learned bench of Honourable Mr. Justice G.R. Swaminathan in the case of G.Sivarajaboopathi v. State, rep.by The Inspector of Police & Dharmaraj (Crl MP(MD)No.78 of 2022).

The petitioner’s act raised the hackles of the defacto complainant who brought it to the notice of the Inspector of Police, Cyber Crime Police Station, Nagercoil. Crime No.32 of 2021 was registered against the petitioner and another for the offences under Sections 153, 505(2) and 504 of IPC on 15.12.2021. The petitioner has filed this Original Petition to quash the same. The person who died was no ordinary person. He was the Chief of Defense Staff (CDS). The circumstances in which he died were extremely tragic. It was nothing short of a national calamity. The conduct of the petitioner would certainly outrage the moral sense of most persons. But the issue on hand must be adjudicated on the basis of an objective criteria. The only question that I should pose to myself is whether the act committed by the petitioner amounts to a cognizable offence. If the answer is in the negative, then the impugned FIR has to be quashed.

The honorable court also took the reference of Muniswami Naicker Vs. (1949) 2 MLJ 767, it was held that the gravamen of the offence under
Section 504 of IPC lies in the utterer provoking the victim by his words to
commit an immediate breach of the peace. That can only occur if he utters the words in the presence of the victim or has them conveyed to him by letter or messenger. When the accused uttered the abuse in the absence of the complainant, he cannot be convicted under Section 504 of IPC unless he asked his hearers to convey it to the complainant.   

The bench of Honourable Mr. Justice G.R. Swaminathan in this case concluded that the petitioner’s post does not involve two groups at all. There is no reference to religion, race, place of birth, residence, language, caste or community. It has been held that unless one group is sought to be pitted against the other on the aforementioned grounds, the penal provision is not attracted. Looked at from any angle, the essential ingredients constituting the offences of Sections 153, 504 and 505(2) of IPC are absent in this case. The impugned FIR is not maintainable. It is quashed. The criminal original petition is allowed.

Click here to read the judgement

Judgement reviewed by Himanshu Ranjan