Madras High Court stays proceedings against Nakkeeran Gopal

Chennai: The Madras high court has stayed the proceedings pending before the II Metropolitan Magistrate, Egmore, against Nakkeeran Gopal, Editor of Nakkeeran a bi-weekly Tamil magazine, and four of his employees in the case relating to allegedly publishing fake/derogatory news about the Governor of Tamil Nadu with an intention to prevent the Governor from exercising his lawful powers and duties and the same amounts to an offence under section 124 IPC.

Justice Anand Venkatesh granted the stay on a plea filed by Nakkeeeran Gopal and four others.

In his interim order, the judge said two important issues require consideration in this petition. The first and the most important  issue that is coming up for consideration is whether the FIR and the materials collected by the investigating officer during the course of investigation, makes out an offence under section 124 IPC against the petitioners.  This is the first case after Independence wherein the court has been called upon to consider whether a publication by itself will have the effect of overawing his Excellency the Governor to prevent him from exercising his lawful powers and duties. In order to satisfy the requirements of the word “Overawe”, there must be something more than the creation of an apprehension, alarm or even perhaps fear. There is definitely a point for consideration in this case as to whether the materials collected by the investigating office by itself satisfy the requirements of section 124 IPC, the judge added.

The judge said to understand the issue even more better, section 124 IPC has the ingredients similar to section 353 IPC. The latter was a generic version of section 124 IPC which applies to public servant. The judgment of the Supreme Court in Manik Taneja case dealt with a case under section 353 IPC and it was held that a criminal force or an assault could not be said to have occurred by publishing a post in Facebook, however malicious it may be. The related issue would be if assuming the publication made was construed as malicious and it harms the reputation of his Excellency the Governor of Tamil Nadu, can that by itself satisfy the requirement of the term “Overawe” under section 124 IPC. This fundamental question requires consideration in this case, the judge added.

The judge said the second issue that has been raised by P.T.Perumal, counsel for the petitioner was that the court below ought not to have taken cognizance of the final report filed by the police since section 196 of the Cr.P.C makes it mandatory to the effect that no court shall take cognizance of any offence punishable under Chapter VI or under section 505 IPC except with the previous sanction of the Central government or state government. Even though Additional advocate general P.H.Arvindh Pandian submitted that sanction was granted and the same was taken into consideration by the court below, this court was not able to find any prima facie material which shows the application of mind by the court below at the time of taking cognizance with regard to sanction which was said to have been granted. This issue also requires consideration in this case. “Since this court finds a prima facie case in favour of the petitioners, the proceedings is hereby stayed pending disposal of the criminal original petition”, the judge added.