# 5 S.C.R. 322 S. KHUSHBOO v. KANNIAMMAL AND ANR

- **Citation:** [2010] 5 S.C.R. 322
- **Court:** Supreme Court of India
- **Decided:** 2010-04-28
- **Case number:** Criminal Appeal No. 913 of 2010
- **Bench:** K.G. Balakrishnan, Deepak Verma, Dr. B.S. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/5-s-c-r-322-s-khushboo-v-kanniammal-and-anr-27025
- **Pages:** 35

## Headnote

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 complaints1 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

## Text

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A
B
(2010) 5 S.C.R. 322
S. KHUSHBOO
v.
KANNIAMMAL AND ANR.
(Criminal Appeal No. 913 of 2010)
APRIL 28, 2010
[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 complaints1 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 of judicial 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 nonconventional 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:
"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.
A
"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 premarital 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; 345G
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
A
B
c
D
E
F
330
SUPREME COURT REPORTS
(2010] 5 S.C.R.
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.
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
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
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
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.
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
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
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
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. [Para 28] [352G-H; 353-A-B]
4. The framerS. of Indian Constitution recognised the
importance of safeguarding right to freedom of speech
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
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
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
A
B
c
D
E
F
G
H
332
SUPREME COURT REPORTS
[2010] 5 S.C.R.
A personal autonomy. Morality and Criminality are not coextensive. 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-EH 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
AIR 1986 SC 967
relied on
c
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.
B
c
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
(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
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:
"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
E
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
c
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 it had
D
created a sensation all over the State of Tamil Nadu. This news
item also reported a conversation between the appellant and
E
F
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
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.
6. In the appeal arising out of SLP (Crl.) 4764 of 2008, the
complainant is a male advocate who is a District Secretary of
F
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 1 O 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
H
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
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.
8
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
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:
B
"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
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
F
some of the alleged offences. For example, the Act, 1986 was
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.