Waving Black Flags At CM’s Convoy As Mark Of Protest Can’t Attract Offence Of Defamation; Protests Essential For Democracy: Kerala HC
|The Kerala High Court quashed the criminal prosecution initiated against the Petitioners accused of waving black flags at the convoy of the Chief Minister of Kerala after holding that such conduct cannot be mulcted with the offence of defamation.
The Court observed that protests were essential for an effective democracy as “they are the external manifestations of democratic sentience.” The Court held that the charges under Sections 188, 500, 283, and 353 of the IPC were not attracted noting,“If prosecution is initiated for every triviality, we will have time only for those.”
A Single Bench of Justice Bechu Kurian Thomas observed, “Even if a black flag was shown to the Chief Minister’s convoy, such conduct cannot by any stretch of the language of section 499 IPC be perceived as defamatory. In this context, this Court bears in mind that a black flag can depict different things depending on the context. Waving a flag can be a sign of support or a sign of protest. It is a matter of perception. Generally, a black flag is shown as a mark of protest. If a flag of a particular colour is shown, whatever the reason, including as a mark of protest, as long as there is no law which prohibits the waving of a flag simpliciter, such conduct cannot be mulcted with the offence of defamation.”
Advocate M.Vivek appeared for the Petitioners, while Public Prosecutor C.N. Prabhakaran represented the Respondent.
The Petitioners were accused of waving black flags during a protest. They were charged with violating orders of the Kerala High Court, committing defamation, obstructing a public way, and using criminal force to deter public servants from discharging their duty.
The Petitioners argued that prosecution under Section 500 of the IPC required a complaint by the aggrieved person under Section of the 199 Cr.P.C., and could not be initiated based on a police report.
The High Court held that a police report cannot be the basis for taking cognizance of the offence of defamation as it can be taken only on a complaint made by the person aggrieved. “Thus, the offence of defamation can be initiated only through a private complaint and not a police report. The said proposition of law is elementary and needs no elaborate discussion,” it held.
The Bench noted that the Petitioners had only waved a black flag at the Chief Minister's convoy, and the aforesaid was the only overt act alleged against the them to proceed for the offence of defamation. “Though signs and visible representations can be a mode of defaming a person, still, showing or waving a black flag to a person cannot amount to defamation nor is it an illegal act,” the Court clarified.
“Minimal push and pull is only natural while preventing a person from causing obstructions. The allegations do not indicate any obstruction caused in the discharge of the police duty. The allegations in the final report only indicate a trivial instance of push and pull by the petitioners,” the Court remarked on the allegations under Section 283 of the IPC.
Consequently, the Court held, “Considering the circumstances that none of the other offences are attracted and only section 353 IPC remains, this Court is of the view that having regard to the nature of allegations and in the absence of any assault or injury on the police officers and since the duty of the police officers was not deterred, section 95 IPC can be applied to quash the offence under section 353 IPC…Since, none of the offences alleged against the petitioners are attracted, the final report itself is liable to be quashed.”
Accordingly, the High Court allowed the Petition.
Cause Title: Simil & Ors. v. State of Kerala (Neutral Citation: 2024:KER:86736)
Appearance:
Petitioners: Advocates M.Vivek and Reneeta Vinu
Respondents: Public Prosecutor C.N. Prabhakaran