Not Clear Whether Swapna Suresh's Revelations Are Part Of Section 164 Statement- Kerala HC Refuses To Quash FIR Against Her

"Considering the gravity of the allegations which the petitioner has raised through her statements made to the media, under no circumstances it can be assumed that while making such statements she was not aware that her statement would create provocation to some person to commit rioting."

Swapna Suresh had contended before the Court that the initiation of proceedings against the Petitioner is with malicious intention and to deter the Petitioner from deposing against the Chief Minister, his family and the 2^nd Respondent, about certain illegal activities committed by them.

She also argued that since she had furnished certain information relating to the offences committed by the persons in power, she is entitled for protection under Witness Protection Scheme, 2018 and instead of providing the same, she is being prosecuted.

While the first Respondent argued that the statements which were publicly made by the Petitioner were malicious and with the intention to create and promote the feeling of enmity, disruption of public tranquillity and hatred between different groups of people in the State.

Counsel Krishna Raj appeared for the Petitioner in both the cases, and Director General of Prosecution and Senior Counsel T.A. Shaji appeared for the State before the High Court.

The Court placed reliance on the crucial document i.e., the complaint submitted by the 2^nd Respondent on the basis of which the FIR was registered against the Petitioner.

Section 153 IPC

The Court noted that the statements made by the Petitioner is prima facie defamatory thus making of such statement would amount to an illegal act, atleast for the purpose of conducting an investigation to find out whether the offence under Section 153 IPC has been committed or not.

The second aspect considered by the Court was whether it created any provocation to any persons. The Court noted –

"While considering this question, what is crucial is the impact of the statements admittedly made by the petitioner. In the statements submitted by the 1st respondent, it is specifically mentioned that, as a consequence of the statements made by the petitioner through the media on 7.6.2022, wide public outrage has occurred at the instance of political parties in opposition, and it resulted in wanton rioting and breach of peace and public tranquillity."

The Bench further also noted that on the date of making the statement itself, twelve cases were registered n different parts of the State relating to the agitation involving rioting, where in public property were damaged.

The Court also noted that as of now, 745 cases were already registered by the police in connection with the rioting occurred on different parts of the State following the statement of the Petitioner, which she admittedly made, had caused provocation to certain persons. Therefore, the limb of Section 153 is seen to have been satisfied.

"…statement admittedly made by the petitioner, would amount to defamatory statement and hence it is an illegal act which comes within the meaning of Section 153 IPC," the Court held.

The third element considered by the Court was whether the act committed by the Petitioner was malignantly or wantonly.

The Court in this context, noted, "As per Oxford dictionary 3rd edition 'malignant' means evil in nature or effect; malevolent. 'Wantonly' means deliberate or unprovoked."

"In this case, as mentioned above, statement admittedly made by the petitioner, would amount to defamatory statement and hence it is an illegal act which comes within the meaning of Section 153 IPC," the Court held.

The Court also noted that the averments in both the respective complaints contain specific allegation against the petitioner that the statements made by the petitioner was with a malafide intention to defame the Chief Minister, his family members and the 2nd respondent.

"Therefore, since the complaints contain such an allegation, it satisfies the definition of the word 'malignantly' for the purpose of registration of FIR," the Bench held.

Thus, the Court held that the statement made by the Petitioner could be treated as statements made malignantly or wantonly, atleast for the purpose of registration of an FIR.

Sections 464 and 469 IPC

Section 464 IPC deals with making a false document and Section 469 is for committing forgery for the purpose of harming the reputation of any person.

The allegations against the Petitioner was that Petitioner had manipulated certain electronic records, with the intention to harm the reputation of the Chief Minister, his family and 2^nd Respondent.

"Prima facie, it contains the allegations that, the petitioner had created audio clips and circulated through the media, which contain defamatory statement and it is alleged to have been manipulated. Therefore, the genuineness of the said allegations is a matter for investigation and the same cannot be adjudicated at this stage. The same reasoning would apply to the offence under section 65 of the Information Technology Act, 2000 as well," the Bench held.

Section 505(1) IPC

Section 505(1) deals with statements conducting to public mischief.

The Court while referring to Section 505(1) IPC noted that the allegations contained in the FIR in both cases, it can be seen that, there are allegations to the effect that the petitioner had made statements with the intention to cause fear or alarm to the public or to any section of people whereby any person was induced to commit an offence against the State or against the public tranquillity.

"Therefore, I am of the view that, the interference is not required in respect of the investigation being conducted for the aforesaid offence as well, at this stage," the Court held.

While countering the contention of the Petitioner that proceedings initiated against the petitioner is with malicious intention and to interfere with the investigation that is being conducted by the Enforcement Directorate, the Court held –

"In my view, the aforesaid contention cannot be considered at this point of time. There are allegations raised against the petitioner which prima facie attract the offences alleged against the petitioner and therefore the genuineness of the same is a matter of evidence."

Section 482 CrPC

"In this case, while examining the contentions made by the petitioner for quashing the F.I.Rs in the light of the principles set out by the Hon'ble Supreme Court as referred to above, I do not find any reason justifying the invocation of the power of this Court under Section 482 CrPC," the Bench held.

The Court held that investigation is under process and the same has to reach its logical conclusion.

Protection under Witness Protection Scheme

The Bench while referring to the contention of the Petitioner that she is entitled to protection to under the Witness Protection Scheme, held –

"… since she being an accused in the case in which she made revelations, under no circumstances she can be treated as a witness. It is also to be noted in this regard, the petitioner can be treated as a witness only if she is granted pardon as contemplated under section 306 of Cr.PC and admittedly no such proceedings are taken in this case. Therefore, the contentions raised by the learned counsel for the petitioner in this regard are not legally sustainable."

Thus, the Court held that the challenge raised by the petitioner is pre-mature. The petitioner could not make out a case for interference at this stage.

The Court accordingly dismissed the Petitions.

Cause Title - Swapna Prabha Suresh v. State of Kerala & Ors.

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