The Madras High Court while refusing to interfere with the conviction of Actor-Politician S. Ve Shekar over his derogatory remarks against women journalists has remarked that merely tendering an apology isn't sufficient.

The Court was considering a Criminal Revision Petition against Trial Court order convicting the Petitioner against the charges under Sections-504, 509 of IPC and Section-4 of the Tamil Nadu Prohibition of Harrasment of Women Act, 2002.

The single-bench of Justice P. Velmurugan observed, "Mere tendering apology itself would not be sufficient. When once the contents are released and it is also seen by various persons, certainly, the image of the de-facto complainant and other journalists would be degraded and subsequent tendering apology will not remove the image from the public. Therefore, this is a fit case where the petitioner has to be convicted."

The Petitioner was represented by Advocate Venkatesh Mahadevan while the Respondent was represented by Government Advocate .S.Vinoth Kumar.

The case of the prosecution was that the petitioner had posted certain derogatory objectionable comment/message against women journalists in his Facebook social media posting with an intention to humiliate and destroy human values of feminine gender, in the media field and thereby, public peace and tranquillity was affected and therefore, the petitioner had committed the offence(s) under various provisions of the IPC and the Tamil Nadu Prohibition of Harassment of Women Act.

Counsel for the Petitioner submitted that the Trial Court did not notice that there are serious lapses in the investigation and the prosecution failed to prove the charges beyond all reasonable doubts. He submitted that none of the prosecution witnesses, was able to clearly state even the basic facts regarding the aspect of when the alleged message was forwarded by the petitioner and as to when it was deleted. Further, he submitted that the original forwarded message was never produced before the trial Court by the prosecution and as such, the contents were actually never seen by the trial Court. He averred that the trial Court erred in relying on the screenshot of the alleged forwarded message, for which, no certificate under Section 65-B of the Indian Evidence Act, which was produced by the prosecution, thereby rendering the alleged screen-shot inadmissible in evidence. He also contended that the prosecution failed to establish the authenticity of the alleged screen-shot of the forwarded message through scientifically established means. It was his arguement that the Trial Court did not consider the factum of inconsistency and unreliable statements of the witnesses, which case serious and grave doubt on the case of the prosecution. He averred that the failure to seize the electronic devices belonging to the petitioner, resulted in no direct evidence of the contents of the alleged message forwarded by the petitioner.

It was the submission of the Counsel for the Petitioner that the trial Court erred in relying on the decision of the Supreme Court in Kaushal Kishor Vs. State of U.P. and others, since neither the facts of the said case, nor the principles enunciated therein apply to the case of the petitioner, who neither delivered hate speech, nor had any criminal intention to defame anyone, much less the women in Press and Media.

On the other hand, the Government Advocate re-affirmed that the reputation of de-facto complainant and other female journalists was tarnished. He mentioned that everyone raised question and even the journalists agitated against the petitioner in front of their house also and thereafter, the petitioner had also removed the Twitter message and tendered his apology, and therefore, though the petitioner has stated that he is not the author of Twitter message, whereas, he forwarded the same and tendered his apology. He submitted that the Petitioner only denied the authorship of the message and also tendered apology.

The Court at the outset pointed out that considering the nature of the contents of the message, it is seen that the de-facto complainant is not ready to accept the apology.

"A reading of the evidence of P.Ws.1 to 3, especially the cross-examination of the petitioner, clearly shows that the petitioner had forwarded the Facebook message and he was well aware of the contents of the Facebook message, he also admitted that, after receiving the objection, it could be seen that it is unbelievable that after receiving certain response from the Facebook, the petitioner, without reading the contents, simply deleted his message and therefore, the petitioner was not aware of the contents and therefore, certificate under Section 65-B of the Indian Evidence Act regarding the original content from the electronic records, which is not necessary, however, the prosecution produced Ex.P-3 and on a reading of the cross-examination of P.W.2, it is clear that ExP-3 - certificate is sufficient and therefore, when once the prosecution has proved that the petitioner sent the message in the Facebook...," the Court observed.

The Court was convinced that the contents of the message do affects the reputation of the de-facto complainant and the contents of the message are only about her and other journalists and even ultimately, who are depending on the same from the family members/superiors.

"Therefore, a thorough perusal and reading of the cross-examination of P.W.2 that the offence(s) against the petitioner, is made out and the prosecution also has proved its case beyond all reasonable doubts," the Court observed.

It thus deemed appropriate to not interfere with the conviction as awarded by the Trial Court as it stressed that merely tendering apology in such cases is not sufficient.

"...a reading of the contents, in merely tendering the apology itself, is not sufficient. Further, according to P.W.2, the petitioner did not tender any unconditional apology directly from P.W.2 being the victim and he sent the apology in common," the Court remarked.

The Court concluded that it has been proved that the Petitioner had committed the offence(s) and there is no perversity in appreciation of the evidence and that there is no legal bar to take complaint on file.

"The petitioner has not been posed a question regarding the incriminating circumstances culled out from the prosecution witnesses concerned. A reading of the proceedings under Section 313 Cr.P.C., it shows that the trial Court has posed all the incriminating materials before the petitioner and the petitioner also has understood all the incriminating materials posed before him and he had denied the same," the Court stated while rejecting the contention of the Counsel for Petitioner for same.

The Petition was accordingly dismissed.

Cause Title: S.Ve Shekhar vs. State

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Madras High CourtJustice P. Velmurugan

Sheetal Joon