Disrespect Shown To Constitution By Words Or Acts Constitutes Offence: Kerala HC Directs Crime Branch Investigation Into Minister Saji Cherian’s Remarks On Constitution

The Petitioner approached the High Court seeking a direction to set aside the final report in a Criminal Case registered under section 2 of the Prevention of Insults to National Honour Act, 1971 as well as an order dismissing his petition for further investigation into the case. A direction was also sought to entrust the re-investigation of the above crime with the Central Bureau of Investigation.

The Single-Judge Bench of Justice Bechu Kurian Thomas said, “Thus the words used by the Minister in his speech, like “ideal Constitution to loot the people” or the words “secularism, democracy ‘Kuntham’ ‘Kudachakram’ cannot be terms of respect generally. But the question that begs the answer is whether the context in which those terms were used shows disrespect to the Constitution. The statement that the Indian Constitution is ideal for looting the people does not leave much room for discussion.”

Advocate M. Baiju Noel was the Party-In-Person while SC Sreelal Warriar represented the Respondents.

The incident is of the year 2022 when Saji Cherian, the then Minister of Fisheries and Agriculture, Government of Kerala, while addressing a public function at Pathanamthitta made certain remarks which were alleged to be disrespectful and insulting to the Constitution of India. Several persons, including the petitioner, submitted written complaints to the police. However, when his complaint did not result in the registration of a crime,petitioner approached the jurisdictional Magistrate. Pursuant to a reference under section 156(3) Cr.P.C, an FIR was registered alleging the commission of an offence under section 2 of the Prevention of Insults to National Honour Act, 1971.

The party-in-person, Baiju Noel, submitted that the words used by the accused in his speech amounted to absolute disrespect of the Constitution of India thereby violating the provisions of the Act. It was also submitted that the investigating officer did not have any material to conclude that the accused had no intention to disrespect the Constitution. It was contended that since the accused is a Minister of the Government of Kerala, the police would never be able to carry out a fair and proper investigation and hence the investigation ought to be done by the CBI.

The Director General of Prosecution, Shaji, asserted that the controversial speech only indicated the difficulties faced by the public and the exploitation of the labour class and hence it cannot, under any circumstances, be regarded as an intentional insult.

The Bench, at the outset, reiterated that the High Court can exercise its power of judicial review in criminal matters and the power conferred on the High Court under Article 226 and Article 227 of the Constitution of India and under S.482 of the Code of Criminal Procedure, 1973 has no limits except for the self-imposed restrictions. The contention regarding the non-maintainability of the writ petition was thus rejected.

Another issue before the Bench was whether the Order dismissing the petition for further investigation filed by the defacto complainant was liable to be set aside. The Bench explained that a defacto complainant, is entitled to notice of a final report referring the case and also to object to its acceptance. Reference was also made to the judgment in Bhagwant Singh v. Commissioner of Police and Another (1985) 2 SCC 537 to highlight that while considering whether the final report is to be accepted or not, the Magistrate is bestowed with a duty to ensure that a fair and proper investigation has been carried out and the conclusions arrived at by the investigating officer are reasonable in the circumstances.

The Court further stated that Section 2 of the Act declares insults to the Indian National Flag and the Constitution of India as a punishable offence with imprisonment for a term which can extend upto three years or with fine or with both. Prior to 2003, what was made punishable under the Act was only burning, mutilation, defacement, difiling, disfiguring, destroying, trampling upon or bringing into contempt by words either spoken or written or by acts the National Flag or the Constitution or any part of it. However, by the amending Act 31 of 2003, the words “shows disrespect” were added.

The Bench thus said, “The provision as it now stands indicates that even disrespect shown to the Constitution or to any part of it, by words either spoken or written or by acts can amount to a conduct that falls foul of the statute. Of course, the explanation categorically excludes any criticism of the Constitution or disapprobation of the Constitution if it is for the purpose of obtaining an amendment of the Constitution by lawful means.”

It was noted that even without collecting the entire materials for connecting the accused with the nature of the offence alleged and even before receiving the report of the Forensic Science Laboratory, it was not proper for the Investigating Officer to have come to a conclusion that no offence had been made out. “In the instant case, the pen drive and CD containing the footage were sent for forensic examination, yet the report has not been made available. Hence the CCTV footage was not even part of the final report and the Magistrate had no opportunity to even ascertain the correctness of the conclusion of the investigating officer”, it added.

As per the Bench, the pen drive and CD containing the footage were sent for forensic examination, yet the report had not been made available. The CCTV footage was not even part of the final report and the Magistrate had no opportunity to even ascertain the correctness of the conclusion of the investigating officer. The Bench observed that the final report ought to be set aside and a further investigation be conducted.

“However, this Court has already found that a further investigation is required, and since the accused is a Minister of the State, the investigation by the Station House Officer will not suffice and a superior agency is required. The further investigation hence ought to be conducted by the State Crime Branch”, it held.

Allowing the Writ Petition, the Bench set aside the Magistrate’s order and directed a further investigation into the case by the State Crime Branch.

Cause Title: Adv. M.Baiju Noel v. Additional Chief Secretary (Home & Vigilance), Secretariat [Neutral Citation: 2024:KER:87228]

Appearance:

Petitioner: Advocate M. Baiju Noel (Party-In-Person)

Respondents: SC Sreelal Warriar, Director General Of Prosecution T.A.shaji, Public Prosecutor P.Narayanan, Senior Govt. Pleader Sajju. S.

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