CRLP/6794/2015 of Mrs. Madhavi Tata Vs The State of Telangana rep.,PP on 31 December 2015

ORDER :

The petitioners 1 to 4 are accused 1 to 4 of Crime No.163 of2015 registered by Central Crime Station, Hyderabad, based onthe report of the 2[nd] respondent who is an I.P.S. Officer andhusband of so called victim Smt.Smita Sabharwal, an I.A.Sofficer. The quash petition is filed by the petitioners/accused, onthe report of the 2[nd] respondent supra by showing the 1[st]respondent-State represented by the Public Prosecutor of thecrime registered for the offences punishable under Sections 509I.P.C, Section 67 of the Information Technology Act and Section 3read with 6 of Indecent Representation of Women (Prohibition)Act.

2) The report of the defacto-complainant, dated –nil-addressed to the Joint Commissioner, Detective Department ofHyderabad police with endorsement dated 04.07.2015 by saidJoint Commissioner to the Sub-Inspector, Chain duty to registercrime and hand over to A.C.P. Chandra Sekhar Goud forinvestigation, reads that:

“I, Dr.Akun Sabharwal, 38 years,S/o.Sh.D.P.Sabharwal, am a resident of PJ 32, Officers’colony, Panjagutta, Hyderabad. I am a Governmentservant and am presently posted as Controller ofDrugs, Government of Telangana.

I am married to Smt.Smita Sabharwal, aGovernment servant posted as Additional Secretary tothe Chief Minister of Telangana. We were married on10[th] November, 2003 and have two children.

I bring to your notice the following facts:

A weekly magazine “Outlook” in its July 6, 2015issue, on Page 16, has printed an article under thecolumn “Deep Throat” and title “No Boring babu”. (Acopy of the same is attached herewith).

This above mentioned article, by words and bythe exhibition of a visible representation in the form of acartoon, has intended to insult the modesty of my wifeSmita Sabharwal.

The accused have by act of publishing andprinting it intended that the same is seen by my wifeSmita.

I submit the following to explain the abovestatement:

The term Modesty has not been defined in IPC.However, in the famous case of Major Singh LachhmanSingh V/s The State on 30May, 1963, the ShorterOxford English Dictionary (Third Edition) definition ofthe word “modest” in relation to woman has beentaken. It says that modesty is “Decorous in mannerand conduct; not forward or lewd; shame fast”. Hence,in relation to woman, “womanly propriety of behavior;scrupulous chastity of thought, speech and conduct”.

Also, in the case of Swapna Barman Vs. SubirDas the Hon’ble Court has stated “Under Section 509that the word ‘modesty’ does not lead only to thecontemplation of sexual relationship. The sectionincludes indecency.”

The above mentioned story in Outlook Indiamagazine along with the caricature, written & printed bythe accused, are completely disrespectful, demeaning,distasteful and importantly extremely misogynist andsexist in nature. The same has been done with anintention to insult the modesty of my wife, Smita.

The article consist of 11 sentences. Of these,the following 8 are an insult to the modesty of a woman.

Sentence 1: “The portfolio of a junior bureaucrat, who isposted in the Telangana CM’s office, is a mystery.”

Sentene 4: “The lady is present at every meeting andseen in almost every official photograph sent out by theCMO”.

Sentence 5: “But what she does exactly is a puzzle.”

Sentence 6: “She makes fashion statement with herlovely saris and serves as ‘eye candy’ at meetings,admit leading party politicians”.

Sentence 8: “She knows exactly what time the CM willarrive and leave the office.”

Sentence 9: “The lovely lady, known for her ethnicstyle, recently stunned all by appearing in a trendytrouser and frilly top at a fashion show”.

Sentence 10: “And for once, she wasn’t sitting in anofficial meeting.”

Sentence 11: “But this appearance too made for a greatphoto op”.

The above sentences are accompanied by a cartoonshowing a lady walking on a stage/ramp with the CM ofTelangana Sh.K.Chandrasekhar Rao holding a cameraand 2 other persons, dressed as politicians, jeering ather.

The article read as a whole along with the caricature iswritten, printed & published with an intention to insultthe modesty of a woman, in this case my wife SmitaSabharwal.

I would also like to draw your attention to the fact thatthe cartoon (in the publication) accompanying the articleis an indecent representation of women- depiction of awoman in such way as to have the effect of beingindecent, or derogatory to, or denigrating women.

In addition to above, I would also like to state that the above mentioned article and the accompanyingcaricature were on the internet websitehttp:///www.outlookindia.com. Thus, the accused, inthis matter, have published and transmitted obscenematerial in electronic form.I request you toinvestigate on this front also.

The above article has been written by Ms.Madhavi Tata,W/o Arun Kumar, Occupation: Assistant Editor(Hyderabad), Outlook India, D.No.3-5-315, 2[nd] Floor,Street No.7, Vittalvadi, Narayanguda, Hyderabad-500029.The cartoon has been made by Sri Saahil, S/o.notknown, C/o.Outlook India Pvt. Ltd., AB 10, SJ Enclave,New Delhi-29.

The editor of the above article and the caricature alongwith it, is Sri Krishna Prasad, Editor in Chief, OutlookIndia, C/o.Outlook India Pvt. Ltd., AB 10, SJ Enclave,New Delhi-29.

The above article, caricature etc. has been printed andpublished by Sri Indranil Roy, S/o.not known. Theabove has been printed at Rajhans Enterprises, 134, 4[th]main road, Industrial town, Rajaji Nagar, Bangalore –560 044.

I believe that the above mentioned 4 accused may havebeen supported by others in the above offence. Ihumbly request you to investigate into this and whetherthe above alone conspired in the commission of theabove crime or were assisted/helped by otherindividuals.

I request you to register the above complaint underrelevant sections of law and investigate.”

3) Pursuant to which, the crime is registered on even dateat 16.00 hours, for the offences referred in para No.1 supra.

4) Impugning the said crime registered and pending under investigation, the quash petition is filed saying the allegations inthe report of the defacto-complainant Dr.Akun Sabharwal(repeated in the quash petition between paras 1 to 6) with thecontentions in the quash petition paras 7 to 13 that;

4(a) The aforesaid material no way attracts ingredients ofany of the alleged offences for which the crime is registered and itis no way in the alleged offending publication named the defacto-complainant’s wife and in fact it is complainant’s wife who ischosen of her own from will and volition to identify herself not onlyby legal notice dated 30.06.2015 but also by way of publicstatements and other publications and she has placed her mattervoluntarily in the public domain and such conduct on the part ofher amounts to creating victims through publicity on one hand andon the other hand the complainant is making grievance against thepetitioners in regard to the alleged publication and the report of thedefacto-complainant to the police is not a bonafide one and it isintended only to intimate and harass the petitioners and the othersassociated with the publication of the ‘outlook’ magazine.

4(b) The further contention is that the complainant’s wife onone hand cause issued to two of the petitioners legal notice dated30.06.2015 making certain demands upon the petitioners and onthe other hand she did not even wait for a single day before shewent to the public with all her allegations against the allegedpublication, without giving time to respond to the legal notice, andas a matter of fact on the date of notice issued by thecomplainant’s wife, she cause to be published a detailedinformation to the press leading to the publication of severalarticles and reports in various newspapers including the onepublished in the Deccan Chronicle issue dated 01.07.2015, what is worse the complainant’s wife falsely informed the press that shehad sued, ‘outlook’ magazine for slander viz., that she filed adefamation case against the magazine for the allegedly offendingpublication.

4(c). It is further averred that even the allegations containedin the notice dated 30.06.2015 were also different in tone and tenorfrom those contained in the report of the defacto-complainantresulting in registration of the crime, that the Petitioners onlyreceived legal notice dated 30.06.2015 on 06.07.2015 which is longafter the complainant’s wife had already gone public throughvarious mediums in regard to the alleged offending publication,that consequent upon the actions of the complainant’s wife, thepetitioners are receiving threats of physical harm and in particularthe 1[st] petitioner compelled her to leave Hyderabad for the sake ofher safety, that the petitioners very well believe that thecomplainant and his wife cause giving the intimidating andthreatening calls, text messages and e-mails to the petitioners byattempting to threaten and intimidate them for ulterior motives andthe complainant is resorting to police machinery in registration ofthe crime is also a clear and evident case of misusing and abuseof the machinery of criminal law.

4(d). It is further contended that, immediately on 01.07.2015the petitioners, in fact in accordance with their ethics andprinciples, as responsible journalists published on the ‘outlook’magazine website http:///www.outlookindia.com, setting out theirstand and position in regard to the alleged offending publicationand by expressing regret, if any offence has been unintentionallyor inadvertently caused to anyone and in the very next issue of‘outlook’ magazine dated 20.07.2015, the petitioners carried an even more expanded version of clarification and regret that hadbeen published on the ‘outlook’ website magazine and therebyshowing contrition for any annoyance that may have been causedunintentionally or inadvertently by the publication of the allegedoffending publication; however, the real aim and intent of thecomplainant’s wife was not to raise any genuine grievance againstthe petitioners, the complainant’s wife cause the police complaintin question to be made by her husband on 04.07.2015 and therebyfurther creating victimization and publicity.

4(e). From this, it is contended in the quash petition furtherthat the complaint does not disclose or make out the ingredients ofthe offence under Section 509 I.P.C or Section 67 of theInformation Technology Act, 2000 or Section 3 of IndecentRepresentation of Woman (Prohibition) Act, 1986 or for that matterunder any other penal provision and mere repetition of words ofvarious provisions in the police report by the defacto-complainantwould not constitute the ingredients of any offence and the harmalleged to have been caused by the publication, if any, is too slightand does not warrant any action and thereby, the F.I.R. is liable tobe quashed.

4(f). In the grounds for quashing besides the above and byeven repeating the same contended that none of the offencesmade out from the allegations in the report (F.I.R) even taken attheir face value, but for to seek vengeance against the petitionersat the behest of some other publishers or news channels or otherpersons who are enimical to the petitioners, the 2[nd]respondent/defacto-complainant has no locus standi to lodge thereport on behalf of his wife since he is not the aggrieved party bysuch publication, nor there was any explanation as to how his wife was prevented from giving a report to the police by herself and thereport is nothing but attempt to curb the press freedom and tointimidate and harass the petitioner so as to prevent them fromexercising their professional journalism freely and without fear thattoo when subject publication does not disclose name of SmitaSabharwal nor it is stated in the report as to how the publicationwas attracted against her and the lady shown on the stage in thecaricature accompanied in the publication does not even remotelyresemble to Smita Sabharwal to attribute and the publicationcarried in humour/satire section of the magazine was not intendedto demean, malign or defame anybody nor the caricature orcartoon is obscene muchless indecent or derogatory or denigratingof woman in any manner as per the standards of a reasonable manand current norms and mores of society and thereby sought forquashing the F.I.R.

5) From the above and after appearance of the defacto-complainant, through Advocate including by change of Advocateand the State (R1) represented by Public Prosecutor and from thematerial placed by both sides including the propositions withreference to the respective contest, heard and perused thematerial on record.

6) The magazine ‘Outlook’ is a weekly magazineundisputedly. On the very and every printed and published weeklymagazine cover page, it undisputedly incorporates its website‘www.outlook.com’ on the left top. Coming to the relevant weeklymagazine of July 1[st] and 2[nd] weeks, it was released on 4[th] July,2015 with 76 pages including cover pages that was published forthe week of July 7[th] to 13[th] as can be seen on left bottom of the2[nd] page with full particulars of Editorial Board, registered office,

business office, head office and other offices and personsconcerned with Photography and design etc, also including forwebsite I.P address.

7) Undisputedly the defacto-complainant Dr.Akun Sabharwaland his wife Smt.Smita Sabharwal are staying in the samepremises, it is as can be seen from the complaint address at PageNo.32, Officers Colony, Punjagutta, Hyderabad is one of theearmarked Government quarters. The police report as referredsupra of the defacto-complainant is undisputedly prepared andsubmitted to the Joint Commissioner of Police on 04.07.2015 asper the endorsement of the Joint Commissioner of Police. Admittedly there is nothing in the police report to say same is aview of the defacto-complainant’s wife, the alleged victim if at allaggrieved. Admittedly, there is no reference to the notice dated30.06.2015 issued by the defacto-complainant’s wife to thepetitioners seeking to tender apology in their next publication. Undisputedly said notice she cause issued not even reflected inthe police report of the defacto-complainant with any little whisperabout her seeking to tender apology by petitioners and if so, howhe can still maintain the report to the police on his own or bystepping into the shoes of his wife though there are no any powerof attorney for locus standi, to set the law in motion. Here it is theimportant requirement from the above for she already chosen notto set law in motion to take any criminal or civil recourse by callingfor tender of apology.

8) It is quite an important fact supposed to mention in thepolice report by the defacto-complainant with all prudence of acommon, about notice already issued by his wife seeking to tenderapology and there is no explanation for the suppression of the

material fact as it got its own bearing for registration or not of thecrime from the report, had it been mentioned of his wife alreadysought for tendering apology within the time stipulation or for areasonable time pursuant to which to wait, before reporting forregistering a crime. In fact, as can be seen from the relevant pageof the caricature/cartoon and the contents of the publication, the‘Deep Throat’ words used on the left top of the relevant page is notshown particularly for this page. ‘Deep throat’ as per Collin’sEnglish dictionary meaning an anonymous source of secretinformation. It is a sign to draw attention if at all and not with anysignificance otherwise. Even the Outlook publication weeklyvolume LV No.27 released on 04.07.2015 in the week of July 7-13at 76 pages at page No.14 the words “Deep Throat” with sometype of words and the symbol within which it is embossed isreflecting. That page No.14 of the weekly magazine 04.07.2015reflects a cartoon relating to Chattisgarh with title favoured view. Now, coming to the cartoon in question at page No.16 of themagazine dated 06.07.2015, reflects in the State of Telangana withtitle of ‘No Boring Babu’. The wording is “the portfolio of a juniorbureaucrat, who is posted in the Telangana CM’s office is amystery. She used to be posted in a district earlier. But thingschanged all of a sudden after the elections. The lady is present atevery meeting and seen in almost every official photograph sentout by the CMO. But what she does exactly is a puzzle. Shemakes a fashion statement with her lovely saris and serves as‘eye candy’ at meetings, admit leading party politicians. In fact,it’s this bureaucrat who calls up other officials in the CMO andasks them to come for meetings. She knows exactly what timethe CM will arrive and leave the office. The lovely lady, known forher ethnic style, recently stunned all by appearing in a trendy trouser and frilly top at a fashion show. And for once, she wasn’tsitting in an official meeting. But this appearance too made for agreat photo op.”

9) The material papers and citations filed by the defacto-complainant through his counsel on 16.09.2015 running in 18pages of which page No.18 is the ‘outlook’ weekly magazine dated04.07.2015 referred supra and page No.17 is the relevant page ofthe title in red and white combination of words and backgroundborder – ‘to fashion’. It reflects in the middle the photo ofSmt.Smita Sabharwal and Dr.Akun Sabharwal together with hisdress full hands sleeve and pant and her dress-trouser and topwith half sleeve at a fashion show at the Park in the City,Hyderabad. That is in fact part of the so called offendingpublication and therefrom if a overall reading of thecaricature/cartoon with the contents supra referring to herappearance in a fashion show appearing in a trendy trouser andprilly top that is reflecting in page No.17 of the material papers ofthe defacto-complainant, no doubt points out that thecaricature/cartoon and the contents of the publication reflects onher though she was not named. The fact remains, she wore thetrouser and top in the fashion show as can be seen from pageNo.17 placed very reliance by the defacto-complainant in thecourse of submission at the hearing of the quash petition. Thepublication mainly, if at all is she makes a fashion statement withher lovely sarees and serves as eye candy at meetings, admitleading party politicians. As per the new Oxfod Dictionary ofEnglish, Indian Edition, 4[th] impression of the year 2002 at page654, eye candy mean a mass known, a informal visual image/sthat is/are superficial, attractive and entertaining but intellectuallyundemanding. The informal noun as per encyclopedia (wikipedia)

speaks someone or something that is visually attracting orpleasing to look at.

speaks someone or something that is visually attracting orpleasing to look at.

10) Coming to the three sections under which the crimeregistered supra from the above as to how far it attracts the penalconsequences; so far as the offence under Section 509 I.P.C andSections 3 read with 6 of the Indecent Representation of theWomen (Prohibition) Act, 1986 concerned, the three Judge bench expression of the Apex Court in S.Khushboo V.Kanniammal[[1]]speaks that in deciding any obscenity or not of a reference to sex,the context and purpose for which the reference was made andanything could state, held must be taken into consideration asnorm for determination. Obscenity has to be determined inaccordance with contemporary community standards reflectingsensibilities as well as tolerance level of average reasonableperson and even publication of a statement calling for socialacceptance of pre-marital sex made by the appellantSmt.S.Khushboo, held does not make out the offence underSection 509 I.P.C. The Apex Court held in this regard in this casewhile dealing with other aspects including whether a statement isdefamatory or not within the meaning of Section 499 and 500I.P.C, and the scope of Section 482 Cr.P.C inherent powers toquash the crime proceedings, at para No.23 that Section 509 I.P.Ccriminalizes a word, gesture or act intending to insult the modestyof a woman and in order to establish this offence, it is necessaryto show that the modesty of a particular woman or a readilyidentifiable group of woman has been insulted by a spoken word,gesture or physical act.

11) From this, now coming to the publication in question ofthe caricature and coming to Indecent Representation of Woman (prohibition) Act Sections 3 to 6 concerned in Khushboo supra, itis with reference to the facts of the appellant Smt.Khushbooexpressed her opinion that is covered by the publication in amagazine fortnightly in India Today of September, 2005, as part ofsurvey, wherein she has noted increasing incidence of pre-maritalsex and called for social acceptance of the same and held that theobject of Sections 3, 4 and 6 of the Act, 1986 is to punishpublishers and advertisers who not only disseminate materialportraying woman in indecent manner and it cannot be usedagainst a person whose statement although published had merelyreferred to incidents of pre-marital sex and called for socialacceptance and the Apex Court in this regard observed inKhushboo supra that morality and criminality cannot be treated tobe co-extensive, for not co-extensive including for the offencesunder Section 509 I.P.C or 500 I.P.C or 292 I.P.C or Sections 3, 4and 6 of the Indecent Representation of Woman (Prohibition) Act,1986. It is observed that the obscenity or not is to determine withreference to sex, in accordance with contemporary communitystandards as well as tolerance level of average reasonable personand publication of any statement regarding pre-marital sex innews, magazines is not in the nature of obscene communication.

12) As referred supra in the material filed by the defacto-complainant page No.17 reflects with title resorting to fashionincluding the caricature/photo print of a model at the show in theright bottom item No.2 and of a model at the show left top leaveabout others in showing the contemporary community standardsreflecting the sensibilities as well as tolerance levels of ordinary oraverage reasonable person as to the obscenity or not and incontrast to it, coming to the caricature in question covered by the

crime of the Outlook Magazine of the week ending by 6[th] July,2015 from relevant page 16, the mere caricature no doubt may besaid at the level of tolerance to an average reasonable man withno obscenity. However, from reading of it as a whole, theattention of other persons in the caricature is something more thanmere tolerance level, leave about the same is obscene or notwithin the penal consequences of Section 3 r/w 4 of the Act, 1986to decide further from the say of neither obscene nor intentionalbut only a satirical piece as also referred in the legal notice andnot even as an advertisement to promote a product, service, rentor job or recommending something within the meaning of Section2(a) of the Act, 1986 even to apply Sections 3 and 6 of the Act forwhich offence also the crime is registered.

13) In this context, coming to Section 67 of the InformationTechnology Act for its application it must be not only obscenematerial in electronic form but also with intend to deprive andcorrupt persons without which the provision has no application. The Apex Court in other expression in Ajay Goswamy V. Unionof India[[2]]at page No.165, para No.57 on the text of obscenityobserved also referring to Veerendra V. State of Punjab[[3]]withreference to Article 19(1)(a) and (g) and 19(2) and 19(6) of theConstitution of India, that this Court has time and again dealt withthe issue of obscenity and laid down law after considering the rightto freedom of expression enshrined in Article 19(1)(a) of theConstitution of India, it’s purport and intent and laid down the broadprinciples to determine and adjudge obscenity and at para No.58observed in a recent judgment of Directorate General,Doordarshan V. Anand Patwar[[4]]referred to Hicklin test laid down in R.V. Hicklin[[5]], at page No.446 para No.32 by the ApexCourt that whether the average person applying contemporarycommunity standards would find that the work taken as a wholeappeals to the prurient interest- - - - - -“. Whether the workdepicts or describes in a patently offensive way, sexual contactspecifically, defined by the applicable State Law and whether thework, taken as a whole, lacks serious literacy, artistic, political orscientific value. At para No.59 referring to the expression of theApex Court in Chandrakant Kalyandas V. State ofMaharashtra[[6]]at pages 693 and 694 para No.12 – that thestandards of contemporary issue in India are also fast changing- -- - -. The adults and adolescents have available to them a largenumber of classics involves stories and basis of illiteracy whichhave a context of sex, love and romance, as observed in Udeshi (Ranjit B.Udeshi V. State of Maharashtra)[[7]], if a reference to asex by itself is considered obscene, no books can be sold exceptthose which are purely religious. In the field of art and cinemaalso the adolescent is shown situations which even a Collector ofa century ago would be considered derogatory to public morality,but having regard to the changed conditions or more taken forgranted without in any way tending to B-base or debauch themind. What we have to see is that whether a clause, not anisolated case, into whose hands the book, article or story fallssuffer in their moral outlook or become deprived by reading it ormight have impure and lecherous thoughts aroused in their minds. The charge of obscenity must therefore be judged from thisaspect. At para No.60 of Ajaygoswami suprareferring toSamresh Bose V. Amal Mitra [[8]]at para No.29 page No.313observed- - - - - - as laid down in both the decisions of this Court

earlier referred to, a question whether a particular article or storyor book is obscene or not does not altogether depend on oralevidence, because it is the duty of the Court to ascertain whetherthe book or story or any passage therein offend the provisions ofSection 292 I.P.C.- - - - to adjudicate the question, may if theCourt considers it necessary rely to an extent of on evidence orviews of leading literary person is, if available, for its ownappreciation and assessment and for satisfaction of its ownconsciousness.

14) Thus, the decision of the Court must necessarily be onan objective assessment of the book or story or article as a wholewith reference to the passage complained of therein. The Courtmust take a overall view of the matter charged as obscene mustalso be considered by itself and separately to find out. Whether itis so cross and which is obscenity so pronounced that it is likelyto deprave and corrupt those whose minds are open to influence ofthis sort and into whose hands the book is likely to fall. Thoughthe Court must consider the question objectively with an openmind, yet in the matter of objective assessment the subjectiveattitude of the Judge hearing the matter is likely to influence, eventhough unconsciously, his mind and his decision on the question. A Judge with a puritan and prudish outlook may on the basis of anobjective assessment of the book or story or article consider thesame to be obscene. It is possible that another Judge with adifferent kind of outlook may not consider the same book to beobscene on his objective assessment of the very same book. Theconcept of obscenity is moulded to a very great extent by thesocial outlook of the people who are generally expected to read thebook etc, it is beyond dispute that the concept of obscenity usuallydiffers from country to country depending on the standards of morality of contemporary society in different countries. In ouropinion in judging the question of obscenity, the judge in the firstplace should try to place himself in the position of an author andfrom that view point of the author, the Judge should try tounderstand what is it that the author seeks to convey and whetherwhat the author conveys has any literary and artistic value.TheJudge should thereafter placed himself in the position of a readerof every age group whose hands the book is likely to fall andshould try to appreciate what kind of possible influence the book islikely to have in the minds of the readers.A Judge shouldthereafter apply his judicial mind dispassionately to decidewhether the book in question can be said to be obscene within themeaning of Section 292 I.P.C by an objective assessment of abook as a whole and also of the passages complained of asobscene separately.

15) It is observed in para No.61 of Ajaygoswamy suprathat the American Courts from time to time have dealt with theissues of obscenity and laid down parameters to just obscenity - -- - while determining whether a picture is obscene or not; that it isessential to first determine as to quality and nature of materialpublished and category of readers - - - -. Nudity is not enough tomake material legally obscene. The position in the home ofobscene newspaper is constitutionally protected, except wheresuch materials constitute child pornography. At para No.62 oncontemporary society observed in order to shield the minors andchildren, the State should not forgot that same contents might notbe offensive to the sensibilities of adult men and women. In paraNo.66, it is observed that where art and obscenity are mixed whatmust be seen is whether the artistic, literacy or social merit of the work in question twice it is obscene containedas held in RanjitD.Udeshi supra. In para No.67 regarding contemporarystandards, it is observed in judging as to whether a particular workis obscene, regard must be had to contemporary mores andnational standards. At para No.70 it is observed referring to the

expression in S.Rangarajan V. P.J.Ram[[9]]at para No.45 that thecommitment to freedom of expression demands that, it cannot besuppressed, unless the situation created by allowing the freedomor press, the community interest is endangered- - - - -. Theexpression of thought should be intrinsically dangerous to thepublic interest likely, equivalent of a spart in a power keg. At paraNo.71 on the test of ordinary man observed the test for judging awork should be that of an ordinary man of common sense andprudence and not an out of ordinary or hyper sensitive man asheld by Justice Hidayatullah, Chief Justice in K.A.AbbasV. Union of India[[10]]para No.49 that if the depraved begins to see in thesethings more than what an average person would, in much thesame way, as it is wrongly said, a Frenchman sees a woman’slegs in everything, it cannot be helped.

16) At para No.80, the Apex Court in Ajaygoswamy supra,ultimately observed referring to the expressions in United States

V. Play Boy Entertainment Group Inc.[[11]]of the year 2000, thatin order for the state - - - - - - - to justify prohibition of a particularexpression of opinion, it must be able to show that, it is akin wascaused by something more than a mere desire to avoidthediscomfort and unpleasantness, that always accompany anunpopular view point. Therefore, in our view in the present matterthe petitioner has failed to establish his case. At para No.81observed, therefore, we believe that fertile imagination of anybody, especially of minors could not be a matter that should be agitatedin the Court of law.

17) Thus, mere inconvenience or discomfort or even thecaricature with the contents as well in the feeling or opinion formedby the complainant as affecting or intended to insult the modestyof a woman or obscene is not suffice to attract the penalconsequences but for the duty of the Court by reading the materialas a whole as to its obscene and while controlling the freedom ofspeech and expression under Article 19 of the Constitution of Indiato decide as to any clear and present danger to the society alsofor imposing any restriction or to make the act a penalconsequence.

18) From this, coming back to the other factual backgroundto decide how far the so called victim no other than wife of thedefacto-complainant even felt from the said caricature with thecontents of the publication in the magazine that is also one of thecriterion as part of the duty of the Court from the two tests insitting in the position of the person complained of and in sitting inthe position of common man too; undisputedly the victim causeissued a legal notice through her counsel Mrs.B.Rachana Reddy,Advocate at Hyderabad dated 30.06.2015 to A-3, Krishna Prasad,Editor in Chief and A-1, Mrs.Madhavi Tata, Assistant Editor ofHyderabad of the Outlook Publishing (I) Private Limited magazinefor the article referring to the Outlook issue dated 06.07.2015 tosay for more clarity at the cost of repetition that the issue isending of the week by 06.07.2015 commencing from29/30.06.2015. The legal notice is of the even date i.e.,30.06.2015. The wording from the victim’s reading of thepublication covered by the contents of the caricature/cartoon and the writings what she referred as the caricature and satiricalarticle in the Outlook issue dated 06.07.2015 on the subject is adefamation and slander, at best her idea if at all for civil liabilityand if not also a criminal liability for defamation defined underSection 499 I.P.C and therefrom there is nothing to say she feltand suffice to say she did not even feel the cartoon-cum-caricature-cum-the contents in writing of the article in issue is withintent to outrage her modesty or obscene, but for at best affectingor lowering her reputation.

19) What the contents of the notice from the above readsare that it is under the explicit and specific instructions of theadvocate’s client Mrs.Smita Sabharwal, I.A.S of PJ-32, Officer’sColony, Panjagutta, Hyderabad (same address of the complainantin his police report), the Advocate issued the legal notice to thesaid Editor-in-Chief and Assistant Editor to the effect that, herclient is a Government employee more specifically an I.A.S officerbelonging to Telangana cadre and is presently functioning as anAdditional Secretary to the Chief Minister’s Office (CMO) holdingseveral important administrative portfolios in her capacity as anAdditional Secretary that her client is an acclaimed officer of theI.A.S, having an impeccable service record of 14 years duringwhich time several important and noteworthy milestones as anI.A.S Officer have been achieved during the discharge of assignedadministrative duties. Pursuant to this accomplished backgroundand while her client has been dutifully and diligently dischargingher duties pursuant to her designation as an I.A.S officer, who isdesignated as the Additional Secretary to the C.M.O, her clientwas utterly flabbergasted, shell shocked, angry and extremelydisturbed by the completely baseless, slanderous, defamatorydistasteful article and intentional vilification campaign that the notice addressee through their magazine Outlook’s July 6[th], 2015issue have unleashed against her by portraying her client in anunsightly, distasteful and extremely sexiest light vis-à-vis acaricature representation and an equally distasteful, slanderousdefamatory and importantly utterly baseless and falsifiedArticle/write up about her in the notice addressees magazinecolumn ‘Deep Throat’ at page 16-- -- -- -- -- --, that the noticeaddressees may try and take umbrage in the fact that the ‘eyecandy’ that they so sarcastically referredto was not named in theimpugned Article, in the column ‘Deep Throat’ page No.16 ofJuly6[th], 2015 edition. However, it is amply clear from yourinnuendoes, satirical references of past service and importantlythe alleged appearance at a fashion show, that is a foregoneconclusion, that said satirical Article is clearly directed at herclient, making her seem superfluous and irrelevant, in spite of allher hard work, which is inexcusable, that since the damage to herclient’s professional and personal image has already been done,her client demands the notice addressee to make a detailed publicapology through ‘Outlook’ that is as visible and of the samedimensions and verbiage as the frivolous and vexatious article thatthe notice addressee to think is satirical, that their public apologycannot be a nondescript formal apology in a tiny section of theirmagazine, a detailed, apology that meets the outrage and hurt thather client has been subjected to, including addressing issues offemale professionals and ‘outlook’s sexiest attitude.Her clientthereby cautions and warns the notice addressee if the publicapology not delivered by them in their immediate next edition orwithin 15 days from the date of the notice, whichever is earlier, ordoes not meet her requirements or is to her satisfaction or if theydeliberately choose to ignore the legal notice, she would have no

alternative but be constrained to take necessary and swift civil andcriminal action against them, including but not limited to adefamation suit demanding exemplary damages and appropriatecriminal action, the costs and legal consequencesfor which theyalone shall be responsible, including the costs of the legal notice.

20) This notice contents referred supra only speaks mainlyit is defamation and slander prone to criminal action for defamationand civil claim for damages for the defamation and nothing speaksof it outrages her modesty and intended to insult her modestythough used few words of the article with the caricature andcontents of a whole as distasteful and baseless including inportrain that what she exactly does is a puzzle and her portfolio isa mystery or the same is extremely misogamist and sexiest innature. There is nothing even to say the same is indecentrepresentation within the provisions of I.R.W (P) Act or from thesame in the electronic form to deprave and corrupt the persons toapply Section 67 of the Information Technology Act.

21) It is highly unbelievable of the defacto-complainantbefore reporting to the Joint Commissioner of Police (Detection)on 04.07.2015 is unknown of the said notice and even if at allknown this vital and important fact, for not mentioning is nothingbut suppression of a material fact and within the meaning of abuseof process by setting the law in motion vide decision Indu Dalmia

V. State of A.P[[12]]para No.7 that parties cannot be allowed tomake knowingly inaccurate statements or to conceal materialfacts with a design to gain some advantage, which is nothing butabuse of process. The expression of the Apex Court in S.J.S.Business Enterprises Pvt. Ltd. V. State of Bihar[[13]]at para No.13, the apex Court observed categorically in this regard ofwhat to mean an abuse of process that suppression of materialfacts tantamounts to abuse of process and it is further observedreferring to several of expressions of the glove that as a generalrule, suppression of a material fact by a litigant disqualifies suchlitigant from obtaining any relief. This rule has been evolved out ofthe need of the courts to deter a litigant from abusing the processof Court by deceiving it. Btu the suppressed fact must be amaterial one in the sense that had it not been suppressed it wouldhave had an effect on the merits of the case.

22) On this aspect of abuse of process and its consequences; in State of Karnataka V. L.Muniswamy[[14]]it isobserved that it allowing the proceeding to continue would be anabuse of process of the Court or the ends of Justice require thatthe proceedings are to be quashed the inherent power shall beinvoked. A proceeding that not to be permitted to degenerate intoa weapon and harassing or persecution. Ends of justice are higherthan the things of mere law though justice must be administeredaccording to the laws made by the legislature. Same followed byt h e Apex Court in Chandran Ratan Swamy V. K.C.PalaniSwamy[[15]]by reiterating what is held in the guidelines of State ofHaryana v. Bhajanlal[[16]]and also particularly from theexpression in Jandu Pharmaceuticals V. Mohd.Shareful Haque[[17]]at para No.8 that it would be an abuse of process of theCourt to allow any action which would result any injustice andprevent promotion of justice. In exercise of the inherent powers,Court would be justified to quash any proceeding if it finds thatinitiation or continuation of it amounts to abuse of process of the Court or otherwise quashing of these proceedings would serve theends of Justice and also followed Indermohan Goswamy V. State of Uttaranchal[[18]]para No.46 that, Court must ensure thatcriminal prosecution is not used as an instrument of harassmentor for seeking private vendetta or with an ulterior motive topressurize the accused. It was ultimately observed in ChandranRatan Swamy supra at para No.28 referring to the expression in

Umasankar Gopalika V. State of Bihar[[19]]para No.20 that thedoctrine of abuse of process of Court and the remedy of refusal toallow the trial to proceed is well established and recognizeddoctrine both of English Courts and Courts in India and for thatconclusion referred Lord Moris in Conelly V. Director ofProsecutions[[20]]that the inherent power to prevent abuse of itsprocess and control its own procedure must in a criminal Courtincluding a power to safeguard that accused from oppression orprejudice.

23) It is because in the very notice 15 days time given fromthe date of notice and otherwise to publish in their immediate nextedition whichever is earlier and the defacto-complainant not evenfiled the complaint as referred and detailed supra either bystepping into the shoes of the victim, his wife or filed on her behalfbut of his own from his wording in the report and he is not even theperson aggrieved and thereby not entitled to file police report whenhis wife from her notice supra not aggrieved to accuse for theoffences supra but for to say same is defamatory to take civil andcriminal recourse if no apology be tendered.

24) Thus, when the complainant’s wife at best be the personaggrieved as defined by the Apex Court in S.Khushboo supra at para No.13 referring to Section 199(1) Cr.P.C. for the offenceunder Section 499 read with 500 I.P.C of criminal defamation andequally for the offences under Section 3 read with 4 of the I.R.W(P) Act, 1986 and Section 509 I.P.C in saying that thecomplainants are not the persons aggrieved to institute andthereby not competent to institute the private complaints filed forany of the alleged offences supra.

25) At para No.38 of Khushboo supra, referring to theexpression of the Apex Court in M.S.Jayaraj V. Commissioner of Excise[[21]]it is observed that, the person aggrieved means aperson who is wrongfully deprived of his entitlement which islegally entitled to receive and it does not include any kind ofdisappointment or personal inconvenience. Person aggrievedmeans a person who is injured or one who is adversely affected inlegal sense. At para Nos.39 to 42, it is observed that we can alsoreferred to an earlier decision of this Court in G.Narasimha V.

T.V.Chokkappa[[22]]- - - - -. This section is mandatory and if aMagistrate was to take cognizance of the offence of defamationunder Section 499, 500 and 501 I.P.C read with Section 199 (oldSection 198) Cr.P.C. on a complaint filed by a person who is notaggrieved, the trial and conviction of an accused would be voidand illegal.

26) In this context, it is also equally important to mention onthe facts that even from the caricature and the other contents ofthe article as a whole complained off, it is in discharge of officialadministration of duties of Smt.Smita Sabharwal in the C.M.O asAdditional Secretary and not in private capacity but for to a portionof it referring to appearance at a fashion show and as such, if at all

any complaint to be made pursuant to her legal notice fordefamation, it must be with the permission/sanction of theGovernment concerned and through the Public Prosecutorconcerned as contemplated by Section 194(4) Cr.P.C. The scopeof law in this regard is considered in the recent expression of theApex Court also reported in Rajdeep Sardesai V. State ofA.P.[[23]]and in fact, the learned counsel appearing for the defacto-complainant, by change of Vakalat, by name Sri Pappu NageswaraRao is the counsel appeared therein on behalf of the defacto-complainant and his name is even referred in the expressionparticularly about his representation at para No.25, page No.246 ofthe Judgment for nothing to ignore the expression in not bringing tothe notice of the Court or in raising the contention of it ispremature to decide from the report what offences that or that notconstitute including as to Sections 499 read with 500 I.P.C andwhat is required of sanction or bar of police report only to bedecided at post final report and pre-cognizance stage. In RajdeepSardesai supra on facts, it was held on sufficiency of a sanctioncommon to all the accused, with no need of individual sanctionsagainst each of accused, by negating such a contention, at paraNo.32 of the expression. The scope of the law so far asdefamation both civil and criminal is in fact dealt with in detail bythis Court in answering several contentions raised in the recentexpression of this Court in Crl.P.No.5448 of 2014 by judgmentdated 27.11.2015 between M/s.Bennett Coleman & Co. V.Dr.K.Sarat Chandra.

27) When such is the case apart from the fact that thedefacto-complainant is not an aggrieved person, as laid down bythe expression in Khushboo supra for any of the offences as observed therein where also the offences under Section 509 I.P.Cand Sections 3, 4 and 6 of the I.R.W (P) Act, 1986 involved andthe observation is clear to bind particularly from para No.13 of thejudgment. Apart from it, it is not the complaint by the victim and itis not even on her behalf for the defacto-complainant to maintain,not by the waiting as required of the time stipulated in the noticeissued by her to tender apology else to maintain civil and criminalproceedings for defamation. Here, in the complaint, there is noallegation about any of the offence made out against thepetitioners under Section 499 of I.P.C to face the penalconsequences of Section 500 I.P.C for which in fact the notice isgiven by wife of the defacto-complainant as so called victim and tothat extent as aggrieved and indicated in the notice referred supradated 30.06.2015 through her advocate.

28) It is important to note further that in the quash petition atpara No.11, page No.7 it is categorically mentioned that on01.07.2015 petitioners published on the ‘Outlook’ magazinewebsite www.outlookindia.comexpressing regret, if any offencehas been unintentionally or inadvertently caused to any one and inthe very next issue of Outlook magazine dated 20.07.2015 (for14.07.2015 to 20.07.2015) they carried even more expandedversion of the clarification and regret that had earlier beenpublished on the Outlook magazine website showing contrition forany anonymous that may have caused un-intentionally orinadvertently by the publication of the alleged offendingpublication.

29) No doubt, it is the submission from the counsel for thedefacto-complainant to quash petition-2[nd] respondent by filingmaterial papers and particularly the electronic postal track and courier receipt colour Photostat vide pages 14 and 15 as to courierservice and page No.16 as to India Post online track recordshowing the postal ‘item delivered’ to Mr.Krishna Prasad at SardarJung Enclave, S.O, on 02.07.2015 at 17.29 hours and the courierservice speak also the item delivered on 02.07.2015. The saidcourier service notice receipt shows from the advocate by nameB.Rachana Reddy that was addressed to one G.Arun. The namein fact undisputedly not tallying to name of the petitionersMrs.Madhavi Tata or Krishna Prasad, if at all to whom the notice ismentioned to issue or even Shahil Bhatia or Indranil Roy (thepetitioners). Thus, the courier service is unrelated. No doubt, thepostal track record from page No.16 of the material papers speaksthat it was delivered on 02.07.2015 at 5.29 p.m to (A-3) KrishnaPrasad i.e., Editor-in-chief, said legal notice is addressed amongtwo addressees. The Outlook publication filed at page No.18 ofthe material papers of the defacto-complainant as referred suprawas released on July 4[th], published already before for the week of7[th] July to 13[th] July with 76 pages. It no doubt no way covers anyexpressing of apology, but for in the next weekly publishedmagazine for the week of 14[th] to 20[th] July as also stated in thegrounds of quash petition page No.7, para No.11. In this regard itis the submission of the learned counsel for the quash petitionerswith reference to the material on record that the next publicationimmediately after receiving of the notice though apparently is theone released on 04.07.2015 that is published for the week 7[th] to13[th] July; it was already prepared compiled, printed and publishedby 02.07.2015 and thereby it was in the subsequent and nextweekly magazine for the period from 14[th] to 20[th] July, 2015 and itis released before 11[th] July the apology covered as required in the

legal notice, which is within the 15 days time ending by 18[th] July(to count 15 days from 03.07.2015 as per Section 8 of the GeneralClauses Act by excluding date of service of notice) or release ofthe next immediate edition by 11[th] July published for 14[th] to 20[th]July whichever is earlier even from that notice date, whereas thereport given is on 04.07.2015 to the police which is long before thenotice waiting time. In this regard, it is the submission of thelearned counsel for the defacto-complainant that it is not thecriterion of when the news items be compiled and to be printed andpublished but must reflect in the immediate next edition. What thenotice para No.14 contents speak relevant herein to say are “Myclient hereby cautions and warns you that if the ‘public apology’, isnot delivered by you in your immediate next edition or within 15days from the date of this notice, whichever is earlier, or does notmeet her requirements or is to her satisfaction, or if youdeliberately choose to ignore this legal notice, she would have noalternative but be constrained to take necessary and swift civil andcriminal action against you, including but not limited to adefamation suit demanding exemplary damages and appropriatecriminal action, the costs and legal consequences for which youalone shall be responsible, including the cost of this legal noticewhich is Rs.15,000/- so be warned and take notice”.

30) The notice when speaks immediate next edition or within15 days whichever is earlier to say public apology in the nextedition printed, to ignore the offending publication by not chosenfor action further either for civil defamation or criminal defamation,else being constrained to take civil and criminal action fordefamation it is a matter of common sense that cannot be asked tobe kept in cold storage of next publication is the one to be prepared compiled and published and to be released after receiptof the notice without which it is impossible to expect of the editionprepared, already to be released on 4[th] July for the week of 7[th] to13[th] July, but for the next one for the week of 14[th] to 20[th] July, nodoubt within 15 days after receipt of notice, even shown served bypostal track record on 02.07.2015 the 15 days to count from03.07.2015 to end by 17[th] July which day inclusive and thepublication is when covered of the week for 14[th] to 20[th] Julyreleased by 10/11[th] July, it is within time and the report could nothave been given without the notice waiting period and that too if noapology tendered to take any recourse of otherwise waived of anyrecourse by condoning with no action. Leave about the other factthat is with no need of repetition, the report is not even for criminaldefamation, muchless by the defacto-complainant not anaggrieved and muchless even for criminal defamation to causemaintain at best through public prosecutor as referred supra, whenthe very so called victim no other than wife of the defacto-complainant sought for apology to excuse with no further action,how the complainant can maintain the complaint ignoring the saidnotice of his wife, even to set the criminal law in motion. For thatthe attempt in reply arguments of the defacto-complainant thoughnot advanced earlier is the expression of the public apology iscovered only in the Outlook magazine released on 11.07.2015 forthe period from 14[th] to 20[th] July of that week and not covered inthe Magazine released on 4[th] July for 7[th] to 13[th] July and the F.I.Rdated 04.07.2015 is not a bar. Said argument of defacto-complainant is, as explained above, untenable and liable to berejected for not even waited till release of publication and not evenreferred in the complaint as notice conditions not complied with, it

is even not the version of complaint that whatever published in theonline publication dated 01.07.2015 is not verified or it is not acompliance. No doubt, it is the condition on the notice para No.14is only to cover the apology in the print publication and not anonline publication of the immediate next edition and the printpublication in fact covered the apology. Thereby that is suffice todislodge the report of the crime to quash the proceeding eventaken the notice by registered post so far as A-3 concernedserved on the evening of 02.07.2015 from the postal track recordonline of India Posts covered by page No.16 of the materialpapers, by then also once the magazine to be released on04.07.2015 for the period from 06.07.2015 to 13.07.2015 iscompleted of preparation and compilation by the time the noticereceived on the evening of 02.07.2015 and it is there in the nextweekly magazine prepared compiled, printed by made ready andreleased on 11.07.2015 for the week covering from 14.07.2015 to20.07.2015. It is thus nothing but the immediate next publicationto cause print in tendering the public apology.

31) Further, when the victim herself, wife of the defacto-complainant sought for tendering apology to publish and that ispublished and there is no response from her of the same is if notsufficient by so saying and that notice even not referred by thedefacto-complainant in his report for not even his case in thereport of compliance not made as per the notice sought fortendering apology and that too without waiting, that too not even bythe victim who want to lay no claim if apology tendered, in herhusband to lay a claim in his own ignoring her privilege to waive incriminal action or civil action, the police report and the crimeregistered therefrom liable to be quashed not only for non-disclosure of material facts and abuse of process therefrom, but also on the principle of aprobate and reprobate being not allowed inlaw enforcement.

32) Coming to the principle of approbate and reprobate aspart of the equitable principle of estoppel, the Indian Evidence Actis not confined to civil recourse but equally to a criminal recourse. Leave about what is discussed supra of doubtfulness in makingout the offence under Section 509 I.P.C and Sections 3 read with 6of I.R.W (P) Act or Section 67 of Information Technology Act,offence under Section 509 I.P.C is a compoundable one with thepermission of the victim woman and the offence under Section 500I.P.C also a compoundable one with the permission of the Court,by the person defamed. The notice speaks by only civil andcriminal defamation and not even of any offence under Section 509I.P.C or Sections 3 read with 6 of I.R.W (P) Act or Section 67 ofthe Information Technology Act as said above time and again. Thelaw of estoppel on the principles of equity as laid down in Union of India V. Wing Commander, R.R.Hingorani[[24]]held a persondoing something with full knowledge of its adverse consequencesmust face the consequences and cannot claim equitable relief. Itis the general principle of equity though the case is in dealing witha civil issue of a Rent Control matter. The Apex Court further in Sneh Gupta V. Devi Sarup[[25]]at para No.25, page No.208observed that the Court has also a duty to prevent injustice to anyof the parties to the litigation. It cannot exercise its jurisdiction toallow the proceedings to be used to work as substantial injusticeand at para No.45 of the judgment on the principle of estoppel,acquiescence, waiver, legitimate expectation election, approbateand reprobate with reference to Section 115 of the Indian EvidenceAct that, the question of estoppel and or election as also doctrine of approbate and reprobate whereupon reliance has been placed,has exceptions, one of them being that there is no estoppelagainst a statute. Here, it is not a case of estoppel against astatute to say there is no estoppel to make a Statute contrary toany promise made.

33) It is needless to say law is like a medicine is in exactscience and one cannot predict with certainty an outcome of manycases, as it all depends upon the facts and circumstances of eachcase and that is why particularly in criminal law, there are noprecedents on facts, but for principle to cull out in its application ifany. It is thereby well said, diverse logic from law is one thing but,to diverse ethics altogether from law is something quite differentand dangerous. Thereby, the Court has to apply the principles byappreciation with reference to the facts on hand. The principle ofestoppel as a rule of evidence to apply both in civil and criminalmatters is based on the maxim Allegans contrasia nonestaudien dus, to mean a party is not to be heard and allowed to saycontrary to what was stated earlier to act upon. The word estoppelas explained by Lord Denning means stopped. You will find itexplained by Cogg in his commentaries on Little Ton 19[th] Edition1832 Vol.II S 667, 352A, that it is brought over by the Normans,who used to rely on the French term estoupail, that means a Bungor Cork by which you stopped something from coming out. It wasin common use by Norman Courts when they carried on theirproceedings in Norman French. Little Ton writes in the LawFrench of the 15[th] Century using the words purceo que le varvonest.Estoppel a dire, meaning simply that the husband is estoppedfrom saying something. Estoppel is a mechanism for enforcingconsistency when I have said or done something that leads you believe in a particular state of affairs I may be obliged to stand bywhatever said or done, even though I am not otherwise bound todo so as put it rightly by Lord Elizabeth Coke in the Modern Law ofEstoppel, Oxford University Press, 2000; as per Lord Denning in Moorgate Merchantile Company Limited V. Twitchings[[26]]at241 that estoppel is a principle of Justice and equity. It comes tothis: When a man by his words or conduct, has laid another tobelieve in a particular state of affairs, he will not be allowed to goback on it when it would be unjust or inequitable for him to do so.Lord Denning gives a long list of different varieties of estoppel andthe Halsbury’s laws of England 4[th] Edition, Lexis Nexis London,(2003-Reissue) refers the same as the modern law of estoppel andalso by the modern law of estoppel (oxford-2000) viz., estoppel byrepresentation or from a deed and its contents or by record or byconfession or part of it. Coming to estoppel by representation, it issaid a person who made a representation or assurance to anotherwith the intention that the later should act on it to his detriment andhe does so act on it, is estopped from denying the content of hisrepresentation or assurance like a promissory estoppel.

34) The defacto-complainant in fact referred theexpressions of the Apex Court

(i) in Rupan Deol Bajaj V. Kanwar Pal Singh Gill[[27]]and

(ii) the Constitutional Bench in Behram Kurshid Pessikaka

V. State of Bombay[[28]]. Later is a case under BombayProhibition Act for toilet preparation containing alcohol whereaccused were charged under Section 66B of the Act, 1949 insaying onus on accused under Section 105 of the Indian EvidenceAct by interpretation of the provision and it mainly deals with

Interpretation of the Statutes. There is nothing to say it containsany principle on estoppel, muchless even to the say of estoppelhas no application in criminal proceeding. What it stated in paraNo.31 referring to the American Principles laid down in Pearse V.Somerset Railway Companyof 1898 and Pearse OilCorporation V. Phoenix Refining Company of 1921, that there isnothing in the nature of such a constitutional right as is hereinasserted to prevent it is being waived or the like right to claim itbarred, as other rights may be, by deliberate election or byconduct in-consistence with the ascertion of such right. Even thispassage placed reliance could not be correlated as to how it isapplicable to the facts with reference to the principle of estoppel orwaiving the right by the victim-wife of the defacto-complainant inthe notice dated 30.06.2015 in inviting an apology from theaccused/petitioners, for not choosing to lay any civil or criminalaction for defamation.

(iii) The other decision placed of the Constitutional bench is of Basheernath V. Commissioner of Income Tax[[29]]where, withreference to Section 115 of the Indian Evidence Act it wasobserved in para No.53 that the generally accepted connotation ofwaiver what constitutes is that there must be intentionalrelinquishment of a known right or the voluntary relinquishment orabundant of a known existing legal right, or conduct such aswarrants an inference of the relinquishment of a known right orprivilege. Waiver differs from estoppel in the sense that, it iscontractual and is an agreement to release or not to assert aright. Estoppel is a rule of evidence. Even from this principle,there is nothing to say estoppel has no application to criminalcases or the party cannot waive to launch any criminal prosecution or any right to file a civil suit. Thereby this decisionand the principle therein also have no help to the defacto-complainant. At page No.73 of the Judgment it is the observationthat even a right or privilege coordinated by the Constitution canbe waived provided such waiver is not forbidden by law and doesnot contravene public policy or public morals. From this, nowcoming back to the facts with reference to the principle leaveabout the offence under Section 509 I.P.C is a compoundable oneof the police report, equally the offence under Section 67 of theInformation Technology Act if not also of Sections 3 to 6 of theAct, 1986; even from notice of complainant’s wife not stated anyoffence made out while seeking apology for the contents constitutedefamation, else to take legal recourse for defamation both civiland criminal, Section 500 I.P.C is also a compoundable offence. When those are compoundable offences and there is nothingforbidden by any law or by any provision of the constitution towaive a right or actionable claim or even a constitutional privilege,the principle of above decision also no way helpful to thecomplainant.

(iv) The other decision relied by complainant is of full benchof this Court in Pallapothu Narasimha Rao V. Kidambi Radha Krishnamacharyulu[[30]]a case under A.P. Rent Control Act, 1960and Transfer of Property Act, Section 112; where on the questionswhether a transferee from original landlord is a landlord within themeaning of the Act and from earlier relief claimed and dismissedfor non-payment of batta would not constitute res-judicata, thepoints raised and decided were confined to it and nothing moredecided muchless on the principle of estoppel or waiver orapprobate and reprobate.

(v) . The other decision placed reliance is M/s.MotilalPadampal Sugar Mills Co. Ltd V. State of U.P[[31]]where withreference to Section 115 of the Indian Evidence Act and Article226 of the Constitution of India, the question as to a new plea ofwaiver whether can be raised for the first time in a writ petition, itwas held that doctrine of promissory estoppel is a principleevolved by equity to avoid injustice; the true principle seems to bethat, where one party has by his words or conduct made the othera clear and unequivocal promise which is intended to create legalrelations or effect a legal relationship arise in the future, knowingor intending that it would be acted upon by the other party to whomthe promise is made and it is in fact so acted upon by the otherparty, the promise would be binding on the party making it and hewould not be entitled to go back on it, if it would be inequitable toallow him to do so. This principle also weighs in favour of quashpetitioners and not in favour of continuation of the crimeproceedings on the report of defacto-complainant. In thisexpression it is further observed that the equitable principle ofpromissory estoppel and waiver are evolved by the Courts fordoing justice and there is no reason why it should be given only alimited application by way of defence. What is necessary is onlythat, the promissee should have altered his position in reliance onthe promise. But if by detriment to the promissee which wouldresult, if the promisor were to recede from his promise, it wouldcertainly gives him as a necessary ingredient and for that it is notnecessary of some prejudice suffered by the promissee by actingon the promise. Even from this principle at para No.622 and 623of the Judgment, there is nothing in favour of the defacto-complainant to maintain muchless to say the promissory estoppelor estoppel by representation from the legal notice or waiver or approbate and reprobate as the case may be have no application.

(vi) . Coming to the other division bench decision placedreliance of this Court in R.F.Charitable Trust V. Special Deputy Collector, GLA, Hyderabad[[32]]in relation to reference forenhanced compensation under Section 18 of the Land AcquisitionAct for acquisition of the land of the trust, by the Housing Board,from the agreement between the parties under Housing Board ActSection 40, for payment of specific sum, waiving right to claimadditional amount or for enhancement under Section 18 byreference, held the waiver is binding under the principles ofestoppel by referring to Section 115 of the Indian Evidence Act fordisentitlement to the claim of enhanced compensation including forany interest or the like.

35) Thus, none of the decisions referred in the materialpapers with memo of citations placed reliance by the defacto-complainant are applicable in his favour either to suppress thefactum of the notice issued by his wife seeking apology frompetitions, for its non mention in the report even it is a material andimportant fact or even to say said notice issued by the wife of thedefacto-complainant is not binding or the defacto-complainant stillgot any locus standi to ignore what his wife stated in her noticewaiving the right by calling for an apology for not to maintain anycivil or criminal proceeding for defamation with no any say of saidpublication constitutes any other offences muchless of Section509 I.P.C or Section 3 read with 6 of the I.R.W (P) Act or Section67 of the Information Technology Act, leave about said report isnot even on behalf of his wife with any authorization from her,apart from herself not aggrieved but for in saying the contentsdefamatory to tender apology within the specified time else to take recourse for defamation; leave apart no offences for which thecrime registered are made out as discussed already withreference to Khushbooand Ajay Goswamy among otherexpressions supra. From the above, coming to the scope ofSection 482 Cr.P.C as laid down by the Apex Court in Chandran Ratnaswami V. K.C.Palanisamy[[33]]as per para No.33 to 39 theinherent powers under Section 482 Cr.P.C entitles the High Courtto quash the proceedings when it comes to the conclusion thatallowing the proceeding to continue would be either abuse of theprocess of the Court or that ends of Justice require that theproceedings to be quashed, in saying the High Courts have beenenvisaged with inherent powers to achieve a salutary publicpurpose and for that ends of Justice is higher than the ends ofmere law though Justice must be administered according to thelaws made by the legislature. It referred the doctrines andmaxims Jure Naturae aequem est neminum cum alteris detrimentoet injuri fieri locupletiorem, to mean easy access to Justice not tobe used as a licence to file misconceived or frivolous petitions. On facts held the launching of criminal prosecution for allegedbreach of joint venture agreement by referring to Sections 420,408, 409, 169 and 120-B I.P.C being an abuse of process of theCourt in quashing the same. In that context it is further observedthat a Court proceeding ought not to be permitted to degenerateinto a weapon of harassment or persecution. Similar is the viewexpressed by the Apex Court to quash the proceeding where it isan abuse of process of law and on facts making a civil remedy byconverting into criminal prosecution, in Rajib Ranjan V. B.VijayKuamr[[34]]needless to say earlier similar expression in AmitKapoor V. Ramesh Chander[[35]].

36) The counsel for complainant though not referred in thesaid memo of citations and material papers placed reliance at theend on few more expressions viz.,

(i) of the Apex Court in Monekabedi V. State of A.P.[[36]], wherefrom, there is nothing to say it is in any way applicable of thefacts or as answer to the legal issues involved in the case onhand, to sustain the police report culminated into registration of thecrime pending investigation;

(ii) the other decision placed reliance of Akbaruddin Owaisi

V. State of A.P.[[37]]which is only in dealing with the registrationof a crime where cognizable offence is disclosing. In fact, thisCourt is not finding fault with the police in registering the crimefrom the report, but the manner and circumstances in which thereport is given by the defacto-complainant even by non-disclosureof the notice already giving by his wife seeking apology for thepublication as defamatory, without even waiting for the expirynotice time to tender apology besides he is neither aggrieved norlocus standi as held in kushboo (supra). The learned PublicProsecutor in the course of hearing placed reliance on theexpression of the Sindh Court in Kair Mohd. V. Emperor[[38]]indealing with a case under Section 509 I.P.C. In the short judgmentwhat is observed is there must be some individual woman orwomen whose modesty has been outraged and though it is notnecessary that individual woman herself making a complaint. It isno doubt on locus standi. However, when the Three Judge benchexpression of the Apex Court in Khushboo in para No.13 includingfor the offence under Section 509 I.P.C, Sections 3 to 6 of I.R.W(P) Act 1986, Section 292 I.P.C and Sections 499 and 500 I.P.C

held but for the victim if at all suffered for others cannot be calledas aggrieved and with no locus standi to maintain the police reportto prosecute the accused, the Sindh Court’s decision cannot serveas a precedent. Equally the case with Rupan Deol Bajaj V.

Kanwarpal Singh Gill[[39]] where there were the accused officerby physical acts of not only sat at ladies circle, but also asked thevictim lady officer to come and sit near to him and even pulled herchair very close to him and not allowed to get her back with chairto distance, but even further after she left the place and went toother lady officers and sat, he came there and stood in front of herso close of 4” distance and crook of his finger asked her get upand come with him out and even for her objecting his behaviour heunheeded and repeated and when she tried to leave, he obstructedand when she turned her face back to him, he even slapped her onposterior that all held constitutes the offences under Section 354and 509 I.P.C and overruled the contention of it is a trivial incidentwithin the general exceptions under Section 95 I.P.C. No doubtobserved at para No.17 that if intention or knowledge is one ofingredients that must be make out. Here the facts are differentand here what to decide is from the publication what offence if anyconstitutes; when the three Judge bench expression in Khushboosupra and Ajay Goswami supra and by clarified by scanning theearlier expressions and by adopting hicklin test and contemporarysocial and the present day community standards and perception ofa common man in the society and not what the victim felt or saideven as the basis, but for some relevancy of co-relation andreference to the common man’s perception for Court to arrive aconclusion therefrom and also with reference to the tolerancelevels in society. Even the decision of three Judge bench in State

of Punjab V. Major Singh[[40]](referred in Rupan Deol Bajajsupra) is a case under Section 354 I.P.C, where it is held for theaccused caused injury to the private parts of female child of 7½months tantamounts to outrage the modesty within the meaning ofSection 354 I.P.C in so holding it is observed as such a victim kidcannot lay a complaint in saying intention or knowledge is theingredient of the offence and not the woman’s feeling always forsuch a kid can have no feeling to express. Apart from the facts ofthe case on hand are entirely different for here the complainant’swife so called victim is an I.A.S officer and also as held inKushboo supra, the Court has to assess from the changingconditions of the society and the feelings of the victim and also theassessment in the estimation of an ordinary prudent man of thesociety, as to the modesty intended to be insulted and whether theact or publication is obscene or not as the case may be. Havingregard to the above, the continuation of the crime proceedings arenothing but abuse of process and hence liable to be quashed tosubserve the ends of justice, which is without prejudice to anyother available rights of the victim Smt.Smitha Sabharwal pursuantto her notice and the apology tendered and on its sufficiency orotherwise if any.

37) Accordingly and in the result, the petition is allowed andthe proceedings in Crime No.163 of 2015 of C.C.S, Hyderabad arequashed. The bail bonds of all accused, if any, shall standcancelled. As a sequel, miscellaneous petitions pending, if any, inthe above criminal petition shall stand closed.

31.12.2015

___________________________

Dr. B. SIVA SANKARA RAO, J

ksh

[1](2010)5 SCC 600[2](2007)1 SCC 143

[3]AIR 1957 SC 896[4](2008)6 SCC 433[5]1968 LR 3 QB 360[6](1969)2 SCC 687[7]AIR 1965 SC 881[8](1985)4 SCC 289[9](1989)2 SCC 574[10](1970)2 SCC 780[11](529 US 803)[12]2015(3) LS 1[13](2004)7 SCC 166[14](1977)2 SCC 699[15](2013) 6 SCC 740[16] 1992 Supp(1) SCC 335[17](2005)1 SCC 122[18](2007)12 SCC 1[19](2005)10 SCC[20](1964)2 All.E.R 401[21](2000)7 SCC 552[22](1972) 2 SCC 680[23]2015(2) ALT (Crl.) 234[24](1987)1 SCC 551[25](2009)6 SCC 194[26]1976(1) QB 22B[27]AIR 1996 SC 309[28]1955 Crl.L.J 215[29]AIR 1959 SC 149[30]AIR 1978 AP 319 (FB)[31]AIR 1979 SC 621[32]AIR 1992 (AP) 130 (DB)[33](2013)6 SCC 740[34](2015)1 SCC 513[35](2012)9 SCC 460[36](2011)1 SCC 284

[37](2013)2 ALD (Crl.) 855 (AP)(2013)2 ALD (Crl.) 855 (AP)[38]AIR 1925 Sindh 271AIR 1925 Sindh 271

[39]AIR 1996 SC 309AIR 1996 SC 309

[40]AIR 1967 SC 63AIR 1967 SC 63