S. KHUSHBOOversusKANNIAMMAL AND ANR.

                         (2010) 5 S.C.R. 322


A                          S. KHUSHBOO
                                 v.
                      KANNIAMMAL AND ANR.
                 (Criminal Appeal No. 913 of 2010)
                          APRIL 28, 2010
B
    [K.G. BALAKRISHNAN, CJI., DEEPAK VERMA AND DR.
                       B.S. CHAUHAN, JJ.]

       Penal Code, 1860: ss.292, 499, 500, 505, 509 -
C Defamation, obscenity, indecent representation of women and
  incitement - Survey conducted by news magazine on the
  subject of sexual habits of people residing in bigger cities of
  India - Magazine gathered and published views expressed
  by several individuals as a/so of appellant - Appellant
D expressed her opinion regarding the increasing incidence of
  pre-marital sex especially in the context of live~in relationship
  and need for its societal acceptance - Numerous criminal
  complaints filed in several places against the appellant under
  /PC and Indecent Representation of Women (Prohibition) Act,
E 1986 alleging that the appellant's remarks amounted to
  defamation, obscenity, indecent representatjon of women and
  would have effect of misguiding young people by
  encouraging them to indulge in premarital sex - High Court
  refusing to quash the proceedings but transferring them to one
F place - On appeal, held: The criminal complaints 1 not
  maintainable - Mere reference to sex cannot be considered
  obscene, thus s.292 /PC not applicable -At no point of time,
  appellant said anything that could arouse sexual desires in
  the mind of a reasonable and prudent person - There was
  neither any intent on part of the appellant to cause harm to
G the reputation of the complainants nor 'any actual harm .done
  to their reputation· - Her statement was a rather general
  endorsement of pre-marital sex and her remarks were not
  directed at any individual or even at a 'company or an

H                                322
     S. KHUSHBOO v. KANNIAMMAL AND ANR.                   323


association or collection of persons' - Thus, the appellant's A
views cannot be construed as an attack on the reputation of
anyone in parlicular - Offence of defamation not made out -
s. 509 /PC a/so not applicable as complainants' grievance was
with the publication of what the appellant had stated in a written
form and not by spoken words, gesture or physical act - s
Indecent Representation of Women (Prohibition) Act, 1986 -
ss. 4 and 6 - Code of Criminal procedure, 1973 - s. 482 -
Constitution of India, 1950 - Arl. 19(1)(a).

      Code of Criminal Procedure, 1973: s.199- Prosecution
for defamation - Appellant's statement published in news C
magazine regarding the increasing incidence of pre-marital
sex especially in the context of live-in relationship -
Complaint of defamation by persons associated with a
political parly active in the State of Tamil Nadu alleging that
the remarks of appellant caused mental harassment to large D
section of women - Maintainability of - Held: Not
maintainable - In respect of the offence of defamation, s. 199
mandates that the Magistrate can take cognizance of the
offence only upon receiving a complaint by a person who is
aggrieved - Complainants cannot be properly described as E
'persons aggrieved' within th~ meaning of s.199(1)(b) - 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 - Penal
Code, 1860 - s.499.                                             F

     Indecent Representation of Women (Prohibition) Act,
1986: ss.4 and 6 - Applicability of the Act - Appellant's
statement published in news magazine regarding the
increasing incidence of pre-marital sex especially in the G
context of live-in relationship and need for its societal
acceptance - Complaint under the Act against appellant
alleging commission of offence of obscenity, indecent
representation of women and incitement- Held: The 1986 Act
was enacted to punish publishers and advertisers who
                                                           H
    324      SUPREME COURT REPORTS               [2010] 5 S.C.R.


A   knowingly disseminate materials that portray women in an
    indecent manner - Not applicable to the appellant as she can
    neither be described as an "advertiser' nor 'publisher' by any
    means - Penal Code, 1860 - s.499.

B          Administration of criminal justice.: 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 ofjudicial review can be exercised
    to prevent a miscarriage of justice or to correct -some grave
C · errors that might have been committed by the subordinate
    courts.

         Constitution of India, 1950: Art.19(1)(a) - Right to
    freedom of speech and expression - Free flow of opinions
D   and ideas is essential to sustain the collective life of the
    citizenry - Dissemination of news and views for popular
    consumption is permissible under the constitutional sche,me
    - Different views are allowed to be expressed by the
    proponents and opponents - A culture of responsible reading
E   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-
    conventional morality has to be tolerated as the same cannot
    be a ground to penalise the author - Criminal law machinery
F   should not be s.et into motion merely for expressing
    unpopular views.

         Media: Role a,nd responsibility of - Electronic and news
    media need to pl?Y positive role in presenting to general
    public as to what actually transpire during the course of the
G   hearing - 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.

H
     S. KHUSHBOO v. KANNIAMMAL AND ANR.                   325

    Words and phrases:                                           A

     "Offence"- Meaning of- In the context of ss.40, 41 and
42 /PC, s.2(n) Cr.P.C. and s.3(38) of the Generai Clauses
Act, 1897.

    "person aggrieved" - Meaning of - In the context of          8
s.199(1)(b) of Code of Criminal Procedure, 1973.

    In 2005, 'India Today', a news magazine conducted
a survey on the subject of sexual habits of people residing
in bigger cities of India. The magazine published the            c
views expressed by several individuals including that of
the appellant regarding the increasing incidence of pre-
marital sex especially in the context of live-in relationship.
Subsequently another news magazine 'Dhina Thanthi'
also reported statement of appellant purportedly in a            o
distorted manner. The publication of these statements
triggered criticism from various quarters and
organisations resulting in several criminal complaints
against the appellant under Sections 499, 500 and 505
IPC and Sections 4 and 6 of the Indecent Representation
                                                                 E
of Women (Prohibition) Act, 1986.

     Appellant approached the High Court under Section
482 Cr.P.C. for quashing the complaint. High Court noted
that two questions of fact were involved in the case i.e.
whether the appellant could claim any of the recognised          F
defences against the allegations of having committed
defamation, as contemplated by Section 499 IPC and
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 were made in a bona fide manner. The              G
High Court dismissed the petition leaving both the
questions for consideration by the trial court. However
the High Court directed consolidated trial of the
com.plaints in one place. Hence the appeals.
    326        SUPREME CQURT REPORTS            [2010) 5 S.C.R.


A         Allowing the appeals, the Court

         HELD: 1.1. When the criminal law machinery is set ih
    motion, the superior courts should not mechanically use
    either their inherent powers or writ jurisdiction tc>
8   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 errors that might have been committed by the
    subordinate courts. [Para 12) [340-F-G]

C      Mis Pepsi Foods Ltd. & Anr. v. Special Judicial
  Magistrate & Ors. AIR 1998 SC 128; State of Haryana & Ors.
  v. Ch. Bhajan Lal & Ors. AIR 1992 SC 604; Mis Medchl
  Chemicals & Pharma Ltd. v. Mis Biological E. Ltd. & Ors. AIR
  2000 SC 1869; Mis Zandu Pharmaceutical Worl<s Ltd. & Ors.
D v. Mohd. Sharafu/ Haque & Ors. AIR 2005 SC 9; Shakson
  Belthissor v. State of Kera/a & Anr. (2009) 14 SCC 466, relied
  on.
          1.2. Perusal of the complaints revealed that most of
E the allegations pertained to offences such as defamation
  (Sections 499, 501 and 502 IPC), obscen'ty (Section 292
  IPC), indecent representation of women and incitement
  among others. There is absolutely no basis for
  proceeding against the appellant in respect of some of the
  alleged offences. The Indecent Representation of Women
F (Prohibition) 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 merely referred to the incidence of pre-marital
G sex in her statement. The appellant cannot be described
  as an 'advertiser' or '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
H modesty of a particular woman or a readily identifiable
    S. KHUSHBOO v. KANNIAMMAL AND ANR.              327


group of women has been insulted by a spoken word, A
gesture or physical act. Clearly this offence cannot be
made out when the complainants'.grievance was with the
publication of what the appellant had stated in a written
form. Likewise, some of the complaints mentioned
offences such as those contemplated by Section 153A 8
IPC ('Promoting enmity between different groups etc.,')
which would 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. [Para 15] [342-D-H; C
343-A-C]
     1.3. The appellant's remarks did not amount to
'obscenity' in the context of Section 292 IPC. References
to sex cannot be considered obscene in the legal sense
without examining the context of the reference. In the D
present case, the appellant 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 E
prudent reader. Furthermore, the statement was made in
the context of a survey which 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 F
thereby serving the purpose of communicating certain
ideas and opinions on the subject. It is difficult to
appreciate the c1aim that the statements published as part
of the survey were in the nature of obscene
communications. [Paras 16, 18] [343-C-D; 344-F-H; 345- G
A-C]              .

    Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC
881; Samaresh Bose v. Amal Mitra AIR 1986 SC 967, relied
on.
                                                           H
    328      SUPREME COURT REPORTS             [2010] 5 S.C.R.

A      1.4. The claim that the appellant's remarks could have
   the effect of misguiding young people by encouraging
   them to indulge in premarital sex is a little far-fetched
   since the appellant did not direct her remarks towards
 . any individual or group in particular. All that the appellant
8 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 endor.Sement of sexual activities of all kinds. If
   it were to be,considered'So, the criminal law machinery
C would hav~i 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. 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
D been shown since the latter is not an offence. [Para 19]
   [345-C-F]
       1.5. "Offence" means 'an act or instance of
  offending'; 'commit an illegal act' and illegal means,
E '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 l.P.C. or under
  special or local law or as defined under Section 2(n)
F Cr.P.C. or Section 3(38) of the General Clauses Act, 1897.
  While it is true that the mainstream view in Indian 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
G outside the marital setting, with the exception of
  'adultery' as defined under Section 497 IPC. [Paras 20,
  21] [345-G-H; 346-A-C]
       Proprietary Articles Trade Association v. Attorney
  General for Canada AIR 1931 PC 94; Thomas Dana vs. State
H of Punjab AIR 1959 SC 375; Jawala Ram & Ors. v. The State
     S. KHUSHBOO v. KANNIAMMAL AND ANR.                329


of Pepsu (now Punjab) & Ors. AIR 1962 SC 1246; Standard A
Chartered Bank & Ors. v. Directorate of Enforcement & Ors.
AIR 2006 SC 1301; Lata Singh v. State of U.P. & Anr. AIR
2006 SC 2522, relied on.

    Gillick v. West Norfolk and Wisbech Area Health            B
Authority (1985) 3 All ER 402, referred to.

      2.1. The definition of defamation as envisaged in
 .Section 499 IPC makes it amply clear that the accused
 must either intend to harm the reputation of a particular
 person or reasonably know that his/her conduct could          C
 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.' With regard to the
 complaints in question, there was neither any intent on       D
 part of the appellant to cause harm to the r~putation of
 the complainants nor any actual harm was done to their
 reputation. In short, both the elements i.e .. mens rea and
 actus reus were missing. The appellant's statement
 published in 'India Today' {in September 2005) was a          E
 rather general endorsement of premarital sex and her
 remarks were not directed at any individual or even at a
  'company or an association or collection of persons'.
 Thus, the appellant's views cannot be construed as an
 attack on the reputation of anyone in particular. Even in     F
 the remarks published in 'Dhina Thanthi' {dated
 24.9.2005) which were categorically denied by the
 appellant, there was no direct attack on the reputation of
 anyone in particular. Instead, the purported remarks were
 in the nature of rhetorical questions wherein it was asked    G
 if people in Tamil Nadu were not aware of the incidence
 of sex. Considering these remarks in their entirety,
 nowhere it was suggested that all women in Tamil Nadu
.are engaged in premarital sex. That imputation could only
 b~ found in the complaints that were filed by the various     H
    330       SUPREME COURT REPORTS             (2010] 5 S.C.R.


A   respondents. It was a clear case of the complainants
    reading in too much into the appellant's remarks. [Paras
    23, 24] (348-F-H; 349-A-D] .

         2.2. Most of the complainants were associated with
    the PMK, a political party active in the State of Tamil Nadu.
B
    This fact would add weight to the suggestion that the
    impugned complaints were filed with the intention of
    gaining undue political mileage. In respect of the offence
                           ..
    of defamation, Section 199 Cr.PC mandates that the
    Magistrate can take cognizance of the offence only upon
c   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. In given facts of the present case, the
D   complainants cannot be properly described as 'persons
    aggrieved' within the meaning of Section 199(1)(b) Cr.PC.
    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
E   of people. [Para 25] (349-E-G; 350-A-B]

     .  M.S. Jayaraj v. Commissioner of Excise, Kera/a & Ors.
    (2000) 7 SCC 552; G. Narasimhan & Ors. v. T. V. Chokappa,
    AIR 1972 SC 2609, referred to.
F      Knupffer v. London Express Newspaper Ltd. (1944) 1
    ALL ER 495, referred to.
         2.3. The complainants alleged defamation in respect
    of imputations against the character of Tamil-speaking
G   women, which could perhaps be viewed as a class of
    persons. However, the appellant's remarks did not
    suggest that all women in Tamil Nadu engaged in
    premarital sex. In fact her statement in 'India Today' did
    not refer to any specific individual or group at all. Even if
H   it were assumed that the news-item carried in 'Dhina
     S. KHUSHBOO v. KANNIAMMAL AND ANR.                  331


Thanthi' caused mental agony to some sections of                A
women in Tamil Nadu, there is no prima facie case for any
offence. [Para 27] [352-C-F]
     3. The institution of the numerous criminal
complaints against the appellant was done in a ma/a fide
                                                                B
manner. 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        c
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         D
proceed to take cognizance of the same. [Para 28] [352-
G-H; 353-A-B]
     4. The framerS. of Indian Constitution recognised the
importance of safeguarding right to freedom of speech
                                                                E
and expression since the free flow of opinions and ideas
is essential to sustain the collective life of the citizenry.
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         F
that in India, marriage is an. important social institution,
however there are certain individuals or groups who do
not hold the same view. There are some indigenous
groups within the country wherein sexual relations
outside the marital setting are accepted as a normal            G
occurrence. 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               H
    332      SUPREME COURT REPORTS            [2010] 5 S.C.R.

A 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
B 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
c speech and expression'.Thus, .dissemination of news
  and views for popular consumption is permissible under
  the constitutional scheme. The different views are allowed
  to be expressed by the proponents and opponents. A
  culture of responsible reading is to be inculcated·
D amongst the prudent readers. Morality and criminality are
  far from being co-extensive. An expression of opinion in
  favour of non-dogmatic and non-conventional morality
  has to be tolerated as the same cannot be a ground to
  penalise the author.[Paras 29, 30) [353-D-H; 354-A-B;
E 355-B-D]
        S. Rangarajan v. P. Jagjivan Ram & Ors. (1989) 2 SCC
    574, relied on.
       5. During the course of hearing, certain queries were
F put to the counsel appearing for parties to clarify the legal
  issues involved in the matter but unfortunately, those
  queries were highly misunderstood not only by media
  but also by common man. It is, therefore, not only
  desirable but imperative that electronic and news media
  should also play positive role in presenting to general
G 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. [Paras 31, 32) [355-E-
H F; 356-B-C]                       ,
    S. KHUSHBOO v. KANNIAMMAL AND ANR.                   333


                    Case Law Reference:                         A
    AIR 1998 SC 128          relied on             Para 12
    AIR 1992 SC 604          relied on             Para 12
    AIR 2000 SC 1869         relied on             Para 13
                                                                B
    AIR 2005 SC 9            relied on             Para 13
    (2009) 14 sec 466        relied on             Para 13
    AIR 1965 SC 881          relied on             Para 16
                                                                c
    AIR 1986 SC 967          relied on             Para 17
    AIR 1931 PC 94           relied on             Para 20
    AIR 1959 SC 375          relied on             Para 20

    AIR 1962 SC 1246         relied on             Para 20      D

   · AIR 2006 SC 1301        relied on             Para 20
    AIR 2006 SC 2522         relied on             Para 21
    (1985) 3 All ER 402      referred to           Para 22      E
    (2000) 1 sec 552         referred to           Para 25
    AIR 1972 SC 2609         ·referred to          Para 26

    (1944) 1 ALL ER 495      referred to           Para 26
                                                                F
    (1989) 2 sec 574         relied on             Para 29

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 913 of 2010.

    From the Judgment & Order dated 30.4.2008 of the High       G
Court of Judicature at Madras in Crl. O.P. No. 31393 of 2005.

                           WITH
C.A. Nos. 925, 930, 928, 931, 929, 9z;7, 933, 932, 926, 914.
                                                                H
    334        SUPREME COURT REPORTS                [2010] 5 S.C.R.


A   915, 916, 917, 919, 920, 918, 923, 924, 921 and 922 of 2010.

         Pinky Anand, V. Kanagaraj, A.T.M. Rangaramanujam, D.N.
    Goburdhan, Ankur Mittal, Akansha Munjal, Prabal Bagchi,
    Balendu She~har, S! Thananjayan, N:R. Ramkumar, Satya
    Mitra Garg, G. Sivabalamurugan, Anis Mohammad, Stalin Mani
B
    (for L.K. Pandey}, S. Gowthaman, B. Balaji, K. Krishnakumar,
    V. Senthil Kumar and M.A.I Chinnasamy for the appearing
    parties.

          The Judgment of the Court was delivered by
c
          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
D   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
E   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
F   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.
G   At the same tim~, in order to prevent the inconvenience of
    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
H
     S. KHUSHBOO v. KANNIAMMAL AND ANR.                        335
             [DR. B.S. CHAUHAN, J.]
judgment, the appellant approached this Court by way of a batch        A
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 B
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 C
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 D
take adequate precautions to prevent unwanted pregnancies
and the transmission of venereal diseases. This can be readily
inferred from the statement which was published, a rough
translation of which is reproduced below:
                                                                       E
    "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          F
    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        G
    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:                                    H
    336         SUPREME COURT REPORTS                  [2010) 5 S.C.R.


A         "Will you marry a person who had relationship with others?

          18% -Yes, 71% - No

          Is it nec~ssary to be a virgin till the time of marriage?

B         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
c         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 it had
D   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):
E         "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?
F
          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
G         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."
H
       S. KHUSHBOO v. KANNIAMMAL AND ANR.                       337
               [DR B.S. CHAUHAN, J.]

 However, soon after the publication of the above mentioned             A
 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
 appellanf had asked the publisher to withdraw the news-item
 carried on 24,9.2005 and to publish her objections prominently         B
 within three days of receipt of the notice, failing which the
 appellant would be constrained to take appropriate legal action
 against the newspaper.

       5. As outlined above, the publication of these statements
 in 'India Today' and 'Dhina Thanthi' drew criticism from some          C
 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'],   D
 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          E
 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.
                                                                        F
      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           G
  second-hand accounts of the same to be 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       H
    338        SUPREME COURT REPORTS                [2010] 5 S.C.R.


A 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
8 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 1O years.
  She has quoted some portions from the statements published
  in 'India Today' and 'Dhina Thanthi' to submit that the
c 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
D 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 complaint,
   some parts of the appellant's statements have been quoted to
   allege that she had suffered great mental agony and shame
E 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
F 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.
G
        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
H
     S. KHUSHBOO v. KANNIAMMAL AND ANR.                    339
             [DR. B.S. CHAUHAN, J.]
482 Cr.PC, on the premise that the relevant considerations in A
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 recognised defences against
the allegations of having committed defamation, as B
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 c
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 D
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 E
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 as a prudent person, and F
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 G
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 H
    340        SUPREME COURT REPORTS                 [2010] 5 S.C.R.


A   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
8
    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
C   cases are mostly women belonging to Tamil Nadu, who were
    personally aggrieved by the appellant's remarks. 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
D   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
E   to reasonable restrictions based .o'n considerations of 'public
    order', 'defamation', 'decency; and morality' among other
    grounds.

         11. We have considered the rival submissions made by
F   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
G   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 errors that might have been committed by
    the subordinate courts. [See decision of this Court in: M/s Pepsi
H   Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors.,
     S. KHUSHBOO v. KANNIAMMAL AND ANR.                     341
             [DR. B.S. CHAUHAN, ·J.)
AIR 1998 SC 128). In the past, this Court has even laid dow~ A
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 Harrana & Ors.
 Vs. Ch. Bhajan Lal & Ors., AIR 1992 SC 604, to take note of
two such guidelines which are relevance for the present case:- B

    "(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           C
    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      D
    :.rid 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 E
cannot be quashed. In Mis Medchl Chemicals & Pharma Ltd.
Vs. Mis 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 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 F
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 G
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 Kera/a & Anr., (2009) 14 SCC 466, this H
    342        SUPREME COURT REPORTS                  [2010] 5 S.C.R.


A   Court relied on earlier precedents to clarify that a High Court
    while exercising its inherent jurisdiction should not interfere with
    a genuine complaint but if-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
B
          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
C   to quash criminal proceedings pending before the 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
D   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
E   (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
F   enacted to punish publishers and advertisers who knowingly
    disseminate materials that pcSrtray 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
G   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 'publisher' by any means.
    Similarly, Section 509 IPC criminalises a 'word, gesture or act
H   intended to insult the modesty of a woman' and in order to
     S. KHUSHBOO v. KANNIAMMAL AND ANR.                      343
             [DR. B.S. CHAUHAN, J.]
establish this offence it is necessary to show that the modesty A
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 B
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 c
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 publication1of a book, pamphlet, paper, writing, drawing, D
painting, represel)lation, figure, etc., will be deemed obscene,
if-

            It is lascivious (i.e. expressing or causing sexual
            desire) or                                              E

            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           F
            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. G
In the present case, the appellant takes full responsibility for her
statement which was published in 'India Today', a leadin9 news
magazine. It would pe 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 H
    344        SUPREME COURT REPORTS                   [2010) 5 S.C.R.


A   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
B 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
c . impure and lecherous thoughts 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 reference8' to sex
    cannot be considered obscene in the legal sense without
    examining the context of the reference.

D        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
E   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
F   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
G   reflect the sensibilities as well as the tolerance levels of an
    average reasonable person. Owing to the clear 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 appell_ant described
H
      S. KHUSHBOO v. KANNIAMMAL AND ANR.                       345
              [DR. B.S. CHAUHAN, J.]

 the sexual act or said anything that could arouse sexual desires     A
 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     B
 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       c
 statements published as part of the survey were in the hature
 of obscene communications.

        19. We must alsa-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        D
little far-fetched since the appellant had not 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          E
endorsement of sexual activities of all kinds. If it were to be
considered so, the criminal law machinery would have to take
qn 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       F
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';           G
'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 l.P.C.           H
                                                            I
    346        SUPREME COURT REPORTS                [2010] 5 S.C.R.


A or under special or local law or as· defined under Section 2(n)
  Cr.P.G. or Section 3(38) of the General Clauses Act, 1897
  (vide Proprietary Articles Trade Association Vs.-Attorney-
  Gen(}ral for Canada Al R 1931 PC 94; Thomas Dana Vs. State
  of Punjab AIR 1959 SC 375; Jawala Ram & Ors.- Vs. The
B State of Pepsu (now Punjab) & Ors. AIR 196rsc 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-
C   is- that sexual contact should take plape only between marital
    partners, there is no statutory offence that takes place when
    adults willingly engage in sexual relations 01.1tside the mama!
    setting, with the exception of 'adultery' as defi~r-Se_cti.Qn
                                                   I           .
    497 IPC. At this juncture, we may refer to the decision given
    by this Court in Lata Singh Vs. State of UP. &. Anr., ~IR 2006
D   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".,
E   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 Qf offences under Sections 366 and 368
    IPC, thereby leading to the commencement of trial proceeding!!.
F   This Court had entertained a writ petition and granted relief by
    quashing the criminal trial. Furthermore, the Court had noted
    that 'no offence was @mmitted by any of the accused and the
    whole criminal case in question is an abuse of the process of
    the Court'.                                              ·-
G
         22. It would also be instru~ive to refer to a decision of the
    House of Lords (U.K.)jD Gillick Vs. West Norfolk1and Wisbech
    Area Health Authority, (1985) 3 All 'ER 402. In that case, mother
    of a teenage girl had questioned th~ decision-of the National
    Health Service (NHS) to issue a circular to _local area health
H
     S. KHUSHBOO v. KANNIAMMAL AND ANR.                    347
             [DR. B.S. CHAUHAN, J.]
authorities which contained guidelines for rendering advice A
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 B
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 that case, it was held     c
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 D
 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. lh the impugned judgment E
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, F
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 G
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
                                                                  H
    348        SUPREME COURT REPORTS                  [2010] 5 S.C.R.


A         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.
8
          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.
c
          Explanation 2. - It may amount to defamation to make
          an imputation concerning a company or an association
          or collection of persons as such.

D         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
E         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. ... "
F
                                                 (emphasis supplied)

    The definition makes it amply clear that the accused must either
    intend to harm the reputation of a particular person or
    reasonably know that his/her conduct could cause such harm.
G   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
H   neither any intent on part of the appellant to cause harm to the
      S. KHUSHBOO v. KANNIAMMAL AND ANR.                      349
              [DR. B.S. CHAUHAN, J.]

   reputation of the complainants nor can we discern any actual A
   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 B
   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 c
   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 sex.
   Even if we consider these remarks in their entirety, nowhere D
   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.
                                                                      E
         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 F
   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 G
   aggrieved. This limitation on the power to take cognizance of
   defamation serves the rational purpose of discouraging the
   filing df 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 H
    350        SUPREME COURT REPORTS                  [2010) 5 S.C.R.


A   aggrieved, for instance when the aggrieved person has passed
    away or is 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)
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,
    Kera/a & Ors., (2000) 7 SCC 552, this Court observed as under:
c                         ~



          "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 whp is adversely affected in
D         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
E   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
F         desire another man."

    The Hindu, in its report, gave publicity to this resolution by using
    the following words:

G         "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 lnd\ar
          Penal Code."

    A complaint under Sections 499, 500 and 501 IPC was filed
H   in response to this report. Like the present case, the Court had
     S. KHUSHBOO v. KANNIAMMAL AND ANR.                      351
             [DR. B.S. CHAUHAN, J.)
to consider whether the complainant had the proper legal             A
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   B
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       c
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 defamatory imputation       D
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         E
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             F
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     G
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           H
    352       SUPREME COURT REPORTS                  [2010) 5 S.C.R.


A   been held that it is an essential element of the cause of action
    for defamatiqn~ that the words complained of should be
    published "of the complainant/plaintiff'. Where he is not named,
    the test would be whether the words would. reasonably l~~d
    people acquainted with him to the conclusion that he was the
B   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".

c          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
D   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 suniey, one of
    the answers shows that 26%\of the people who resp~nded to
E   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'
F   caused mental agony to some sections of women in Tamil
    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.

G        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
H   Magistrates is to use their §.tatutory powers to direct an
     S. KHUSHBOO v. KANNIAMMAL AND ANR.                      353
             [DR. B.S. CHAUHAN, J.]
investigation into the allegations before taking cognizance of the A
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 B
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 should not be triggered by fal~ and c
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        D
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   E
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      F
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             G
relations outside the marital setting are accepted as a normal
occurrence. 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         H
    354         SUPREME COURT, REP.ORTS              [2010] 5 S.C.R.


A  unduly interfere with the doma.in of personal autonomy. Morality
                                                                   1
  ,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
8 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
C 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:-

D          " ... 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 have
E          proximate and direct nexus with the expression. The
           expression of thought should be intrinsically dangerous to
           ,the-~ublic 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'.
F
          The Court further held:

         " ... The standard to be applied by the Board or courts for
         judging the film should be that of an <?rdinary man of
         common sense and prudence and notthat of an out of the
G        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
H       ·and constitutionally protected, cannot be held to ransom
       5. KHUSHBOO v. KANNIAMMAL AND ANR.                   355
               [DR. B.S. CHAUHAN, J.]
     by an intolerant group of people. The fundarnental freedom A
     under Article 19(1)(<!) can be reasonably restricted only for
     the purposes mentibhed 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 B
     restricting expression. We must practice tolerance of the
     views of 9thers. Intolerance is as much dangerous to
     democracy as to the person himself."

      30. Th,us; dissemination of news and views for popular
 consumption is permissible under our constitutional scheme. C
 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-conventional morality D
 has to be tolerated as the same cannot be a ground to penallse
 the author.                                             '

       31. Before saying omega, it is necessary for us to point
  out certain unwarranted developments that have taken place E
  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 F
  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 G
  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
                                                                    H
    356       SUPREME COURTREPORTS                  [2010] 5 S.C.R.


A   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. 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
B   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
C   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
D   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
    care;ful, responsible and cautious in this regard.
E
          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 impugned judgment and order of
    the High Court dated 30.4.2008 is set aside. The impugned
F    criminal proceedings are hereby quashed.

    D.G.                                          Appeals allowed.