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BEFORE THE HON’BLE HIGH COURT OF DILI

IN THE MATTERS
KRISHNA KUMAR … PETITIONERS/ APPLICANT

V.

STATE OF NCT OF DILI …RESPONDENT

W.P. (CRL MISC.)NO…….OF 2018

UNDER ARTICLE 226 OF CONSTITUTION OF CHANAKYA AND

SECTION 482 OF CRIMINAL PROCEDURE CODE 1973

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND

COMPANION JUSTICES OF HIGH COURT OF DILI

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LISTOFABBREVIATION

GOVT Government

ALLD Allahabad

& And

ANR. Another

LTD. Limited

P. Page

SCC Supreme Court Cases

SC Supreme Court

U.P Uttar Pradesh

VOL. Volume

V. Versus

ART Article

SEC Section

AIR All India Reporter

CR.P.C Criminal Procedure Code

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INDEXOFAUTHORITIES

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STATEMENT OF JURISDICTION

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STATEMENT OF FACTS

I. CHANAKYA IS A DIVERSE COUNTRY

1. The Constitution of Chanakya consisting of secularism, socialism engraved in its root and aims to
promote Justice, Equality, Fraternity, Unity and Integrity amongst the citizens of Chanakya. Part-III of the
constitution grants fundamental rights which are soul of the constitution yet, it comes with certain
reasonable restrictions, which are intentionally inserted to strike a balance between social and individual
interest. Even with diverse tradition and culture, the feeling of nationalism has always been a meeting
point for the sentiments of the people in Chanakya. Chanakya is a democratic Nation with Bhoomi Jai
Party (BJP) in power. The state of Chanakya having a Sanatan dominated state and Mahmuds were in
minority these two are major religion in Chanakya. They had their distinct customs and practices. One of
the several practices includes cow slaughtering by Mahmuds, which was strictly prohibited by the
Sanatan Dharma.

II. INTRODUCTION OF A DRACONIAN BILL

2. Consumption of Beef Act, on beef ban law passed by Uttam Pradesh having a great hue and cry in the
country with many criticism, So the Lok Sabha passed a bill and which is yet to be passed by the Rajya
Sabha. The Justice National University (JNU) is having a most age old and prestigious university in the
capital of Chanakya i.e. Dili. The JNU students are very active towards political scenario and the social-
political environment of University and has been affecting to the Nation to a very large extent.

PROTEST AGAINST THE BILL

Krishna Kumar was the president of the students of JNU with an influencing personality and aspiring
political leader of Chanakya. He had a distinct Aura with which he could easily influenced their minds of
students in JNU.
He was deeply perturbed by the bill regarding prohibition of eating beef called a huge public gathering
outside the JNU campus and he addressed the crowd by his words to protect against the idea of beef ban.
“Adoption of secularism is in the veins of the nation by the government will push towards self-
Annihilation. This law is a Zenith of irrationality. The prime minister who couldn’t handle his family is
talking about handling the whole nation. He is a proof of failure in his personal fonts. His rhetoric
speeches are never going to feed the poverty of nation. His empathy speeches are creating echo, which
has now become a noise. The state, instead of becoming a provider has become a prohibitory. Such laws
are showing immaturity of the nation. It is piercing the soul of the constitution and the only aid for such
wound is secularism. These bestial devotees of religion in power are trying to outrage the modesty of
constitution by making such laws. Integrity of the nation is our duty and it should not be forgotten. The
only motive of this protest is to pressurize the government to put a stay on such laws”
After the speech was over there was a pindrop silence in the crowd which the post speech of the crowd
depicted nothing but the sorrow towards the dying ideals of the constitutions. After some time all of a
sudden, an unknown/ unfamiliar voice penetrated the silence of the crowd by slogans like “Chanakya tere
tukde honge, mil kar rahegi azaadi”. There was a sudden outburst in the crowd which resulted in
disturbing the order of Dili.

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SUBSEQUENT ALLEGATIONS
After this scenario the police filed an FIR against Krishna Kumar for Sedition (sec 124A IPC 1860) and
defamation ( sec. 499 IPC 1860) and was arrested for the same. Krishna Kumar went to High Court under
sec 482 of crpc 1908 to get the FIR quashed as he was merely exercising his fundamental right of speech
and expression [art. 19(1) a ] given under part III of the constitution.
THE LAW OF CHANAKYA ARE PARI MATERIA WITH THE LAWS OF INDIA.

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STATEMENT OF ISSUES

I. Whether the petition for quashing of FIR is maintainable in the Court of Law?

II. Whether the speech delivered by Krishna Kumar was seditious?

III. Whether there were any grounds of defamation under section 499 of Indian
Penal Code, 1860?

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SUMMARY OF ARGUMENTS

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ARGUMENT ADVANCED

I . WHETHER THE PETITION FOR QUASHING OF FIR IS MAINTAINABLE IN

COURT OF LAW .

It is humbly submitted before the Court that the petition is maintainable for quashing the

FIR .The petitioners respectfully submit the following to reaffirm the maintainability of the

cases before the Court.

I.1. THE PETITION IS MAINTAINABLE, I.2. THERE IS ABUSE OF PROCESS IN THE

MATTER OF ARREST OF KRISHNA KUMAR BY THE POLICE UNDER SECTION 41 OF
THE CR.P.C and I.3. THE FIR IS NOT MAINTAINABLE AND SHOULD BE QUASHED.

I.1 . THAT THE PETITION IS MAINTAINABLE

It is submitted before this Honorable court that the petition regarding the quashing of FIR is
maintainable.

The petitioner has approached the high court under sec 482 CrPc. The petitioner has approached
the High Court directly because under CrPc1 the inherent powers are vested only in High Courts
and courts subordinate to the high court have no inherent powers2.

The scope of exercise of power under Section 482 of the Cr.P.C & the categories of cases where
the High Court may exercise its power under it relating to cognizable offences to prevent abuse
of process of any court or otherwise to secure the ends of justice were set out by the Honorable
Supreme Court In the case of State of Haryana v. BhajanLal3 where the allegations made in the
first information report or the complaint, even if, they are taken at their face value & accepted in
their entirety do not prima facie constitute any offence or make out a case against the accused.
Similar circumstance exists in the current issue prima facie in the present case.

1Sec. 482 of CrPC 1973

2Mithabhai Pasabhai Patel & Ors vs State of Gujarat, (2009) 6 SCC 332
3(1992 Supp.(1) SCC 335)

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As there is no specific remedy provided by any statute neither it is inconsistent with any specific
provision4 hence the High Court can exercise its powers under this section5.

Hence the Petition is maintainable.

I. 2. THERE IS ABUSE OF PROCESS IN THE MATTER OF ARREST OF KRISHNA

KUMAR BY THE POLICE UNDER SECTION 41 OF THE CR.P.C

There is Abuse of Process in the matter of arrest of Krishna Kumar by the Police under Section
41 of the Cr.P.C In Jogindar Kumar v. State of Uttar Pradesh6, the Apex Court has issued
directions regarding arrest and has held that an arrest can cause incalculable harm to a person’s
reputation and self-esteem. “No arrest can be made in a routine manner on a mere allegation of
commission of an offence made against a person. It would be prudent for a police officer in the
interest of protection of the constitutional rights of a citizen and perhaps in his own interest that
no arrest should be made without a reasonable satisfaction reached after some investigation as
to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s
complicity and eve so as to the need to effect arrest.” In the case of Amravati v. State of U.P the
full bench also observed that arrest is not a must whenever an F.I.R. of a cognizable offence is
lodged. In the present case, the Police did not conduct any investigation into the genuineness and
bona fides of the complaint and hence there is no reasonable belief as to the Appellant’s
complicity and even as to the need to effect arrest.

I. 3. THAT THE FIR IS NOT MAINTAINABLE AND SHOULD BE QUASHED

The FIR lodged is not maintainable. The grounds on which the FIR is lodged is defamation and
sedition. A FIR cannot be made for criminal defamation as per section 199 of CrPc. 7The
malicious intention is visible as the FIR is instituted for such an offence for which FIR cannot be

4Kavita vs State & BS Joshi v Haryana (1999) VAD Delhi 842

5 Sec. 482
6AIR 1994 SC 1349
7 K.K Mishra v. State of Madhya Pradesh (2017) MPHC 515

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made. Since the charges against the accused are Mala fide in nature, Hence the FIR should be
quashed.

Coming to the ground of sedition, the accused was merely exercising his fundamental right of
speech and expression 8 .In the case of Ram Nandan V. State it was held that section-124A of IPC
is ultra vires of article-19(1)a of the Constitution .

The ingredients of sedition includes visible representation of any such material which must bring
contempt or disaffection against the government and should result in imminent violence, mere
raising of slogan against the government doesn’t amount to sedition9.

The speech of Krishna Kumar can’t be termed as seditious as mere criticism of one person or one
of the policies of the government can’t be termed as creating disaffection Towards the
Government.10

In the gathering outside JNU Krishna Kumar just criticized the Bill relating to beef ban and the
dying ideal of the constitution which can’t be termed as sedition. The slogan which was chanted
was neither given by Krishna Kumar nor did his speech have any element that would have
incited the people to do so. Since the gathering was outside the campus of JNU, the chanting of
slogan was nothing but the work of any anti-social element. It is evident from the fact that there
was no incitement after the speech as post speech the crowd depicted nothing but silence and
sorrow which shows that raising of the slogans was not influenced by his speech. Hence, the FIR
can be quashed as both the grounds seems to be baseless.

8 Art-19(1)a of the constitution

9Balwant singh V. State of Punjab (1985) SC. 266
10Romesh Thappar vs The State Of Madras 1950 AIR 124, SCR 594

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II. WHETHER THE SPEECH DELIVERED BY KRISHNA KUMAR WAS SEDITIOUS.

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III. WHETHER THERE WERE ANY GROUNDS FOR DEFAMATION

UNDER SECTION 499 OF INDIANPENAL CODE, 1860.

It is humbly submitted, that in the light of the laws, cases and arguments mentioned below, the
counsel on behalf of petitioner/ appellant Mr. Krishna Kumar, most humbly submits that there
was no act of defamation on the basis of following grounds: III.1.] That the essentials of
defamation that is mens rea which is absent. III.2.] That the speech falls under ambit of Right to
Freedom of Speech and Expression guaranteed under Article 19(1) (a). III.3.] Exceptions under
Section 499, Indian Penal Code, 1860.

3.A. THAT THE ESSENTIALS OF DEFAMATION THAT ARE MENS REA IS ABSENT.

Mens rea is one of the essential ingredient of criminal liability. 11 The term mens rea has
been given to violation which is the only motive force behind the criminal act. Offence of
Defamation which is defined as Whoever, by words either spoken or intended to be read,
or by signs or by visible 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.12It is clear from the facts that the public
gathering which was called outside the JNU campus was called for protest against the
idea of beef ban not for defaming ordamaging the reputation of any person. There was no
intention on the side of the petitioner to defame someone. Further, in his speech, at the
conclusive stage, petitioner mentioned that the only motive of this protest is to pressurize
the government to put a stay on such laws. Which clearly mentions the absence of malice
on the part of petitioner. The Supreme Court of India ruled that unless a statute either
clearly or by necessary implication rules out mens rea as a constituent element of a crime,
a person should not be guilty of an offence unless he had a guilty mind at the time of
commission of act.13 Hence the speech does not constitute mens rea.

11State of Maharashtra v. Mayor Hans George AIR 1965 SC 772

12Section 499, IPC 1860.
13RavuleHariprasad Rao v. State, [1951] SCR 322

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III.2. RIGHT TO FREEDOM OF SPEECH AND EXPRESSION GURANTEED UNDER

ARTICLE 19(1) (A).
1. Article 19 (1) (a)of Constitution of Chanakya states that
All citizens shall have the right- To Freedom of speech and expression.

Part III of the constitution guarantees freedom to every citizen of Chanakya the right to speech and
expression. The freedom of speech and expression means the right to express ones convictions and
opinions freely by words of mouth, by writing, printing, pictures or any other mode. A democratic Gov.
attaches great importance to this freedom because without the freedom of speech appeal to reason which
is the basis of democracy cannot be made.14
InShreya Singhal case15 the court observed that the Preamble of the Constitution of India inter alia speaks
of liberty of thought and expression. It also says that India is a sovereign democratic republic. It cannot be
over emphasized that when it comes to democracy, liberty of thought and expression is a cardinal value
that is of paramount significance under our constitutional scheme. Petitioner here is just exercising his
liberty of thought and expression. In the case of RomeshThapparv. State of Madras16 this Court stated that
freedom of speech lay at the foundation of all democratic organizations. In Sakal Papers (P) Ltd. &Ors. v.
Union of India17, a Constitution Bench of this Court said freedom of speech and expression of opinion is
of paramount importance under a democratic constitution which envisages changes in the composition of
legislatures and governments and must be preserved. Equally, in S. Khushboo v. Kanniamal&Anr.18This
Court stated, in paragraph 45 that the importance of freedom of speech and expression though not
absolute was necessary as we need to tolerate unpopular views. This right requires the free flow of
opinions and ideas essential to sustain the collective life of the citizenry.In Union of India v. Association
for Democratic Reforms19, Court held that Freedom of speech and expression include right to impart and
receive information which includes freedom to hold opinion.
Hence, the Under Article 19 (1) (a) freedom to hold and express opinion is fundamental right, which was
rightfully being exercised by the appellant\ petitioner. The appellant called the gathering to share his
opinion as he was the student union president and is having close relations with opposition party so he has
a right to share his views about the functioning and intention of the Gov. in power.

III.3. Exceptions under Section 499, Indian Penal Code20, 1860.

14Constitution of India by V.N Shukla
15 AIR 2015 SC 1523,(2013) 12 SCC 73
16[1950] S.C.R. 594 at 602
17[1962] 3 S.C.R. 842 at 866,
18(2010) 5 SCC 600
19 2002 (5) SCC 294
20 Laws of Chanakya are pari material with laws of India

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Under Section 499 of Indian Penal Code there are certain exceptions where act done by the petitioner is
not under the purview of defamation.
The Judgment of supreme court reported as to submit that terms and expressions, in a defamation case,
are no to be seen in isolation of their context, and the court must allow a certain right to the author or
maker who is exercising his/her freedom of expression or fair critic in regard to matters of public
concern.21 The speech of the petitioner should be seen in the context of protest against the idea of beef
ban. The speech delivered by Krishna Kumar should be considered in its entirety not in isolation.

III.3.1. Whether the statement made by the petitioner falls under Exception 3.

Exception 3 of Section 499 of Indian Penal Code states that “It is not defamation to express in good faith
any opinion whatever respecting the conduct of any person touching any public question, and respecting
his character, so far as his character appears in that conduct, and no further.” In case of State of Bombay
v. Balsara22 the court held that word of common abuse such as “you idiot”, you scoundrel” and others
will not convey any definite imputation harmful to one’s reputation do not constitute defamation. The
petitioner delivered his speech in good faith to protest against the idea of beef ban, which was supported
by the Gov. His motive was to pressurize the Gov. to put a stay on such laws. Hence his motive was not to
defame Prime Minster. There cannot be good faith when there is malice and evidence of negligence or
recklessness the statement which is alleged to be defamatory. Hence there is no malice on the part of
Petitioner as his motive was to pressurize the Gov. against such laws.

III.3.2 Whether the statement made by the petitioner/ appellant falls under Exception 9.

Exception 9 of Section 499 of Indian Penal Code states that “It is not defamation to make an imputation
on the character of another provided that the imputation be made in good faith for the protection of the
interests of the person making it, or of any other person, or for the public good.” Public good is defined
as good of the general people as contra distinguishing from that of an individual. The ingredient of the
ninth exception is that the comment made basing on the facts, is supported by good faith. 23 In
Karuppusamy v. Natarajan24 It was held that all the accused acted in good faith for protecting the interests
of the Public. The plea of good faith of the accused would avail them in view of the ninth exception to
sec. 499 of the Indian Penal Code.

21 S. Rangarajan v. P Jagjivan Ram, 1989 (2) SCC 574

22 AIR 1951 SC 318
23 Indian penal code by RatanLalAndDhirajLal.
241974 Cr.L.J 33 at p. 35

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PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities
cited, it is humbly requested that this Hon’ble Court may be pleased to adjudge and
declare:

And pass any such order, writ or direction as the Honourable Court deems fit and
proper, for this the Appellants shall duty bound pray.
All of which is Respectfully
Submitted
_______________________
_______________________
Counsel For The Petioners

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