11 July 2025 Criminal Appeals & Suspension of Sentence >> Criminal Law  

The Calcutta High Court in Aveek Sarkar & Others v/s State of West Bengal & Another has quashed criminal proceedings initiated against the editor, printer, and publisher of "The Telegraph" newspaper in connection with a complaint alleging the promotion of enmity between religious groups. The case, stemming from a 2012 publication, was dismissed primarily due to the absence of a mandatory sanction from the government before taking cognizance of the offence and a lack of prima facie evidence of intent to incite disharmony.

The proceedings originated from a complaint lodged on March 19, 2012, by an individual who alleged that a picture published in the "T2" supplement of "The Telegraph" under the "Twit of the Day" column deeply hurt the religious sentiments of people following Islam and was intentionally published to do so. Initially, the FIR was registered against the Editor, Printer, and Publisher of "The Telegraph" newspaper under Section 153A of the Indian Penal Code (IPC), which deals with promoting enmity between different groups on grounds of religion, race, etc.

However, the petitioners argued that they were falsely implicated, as they were not named in the initial FIR, and the charge sheet was filed against them despite this. Their legal counsel, Senior Advocate Mr. Ganguly, highlighted several key points:

• No Intent to Promote Enmity: The publication was a reproduction of a tweet by a third person ("Poonam Pandey") and appeared in a small section of a supplement, indicating no intention by the newspaper to promote its own views or incite disharmony.
• Immediate Apology: Crucially, on March 20, 2012, "The Telegraph" published an unconditional apology on its front page to ensure that no religious group felt insulted or humiliated, suggesting a lack of malicious intent.
• Mandatory Sanction Absent: A pivotal argument was that Section 196 of the Code of Criminal Procedure (Cr.P.C.) mandates prior sanction from the central or state government for a court to take cognizance of an offence under Section 153A IPC. In this case, no such sanction was obtained, rendering the cognizance taken by the Chief Judicial Magistrate, Howrah, invalid. The court also noted a similar issue arose in another case concerning the same publication.
• No Vicarious Liability: The counsel argued that the concept of vicarious liability is generally unknown in IPC offences, and in the absence of a direct or specific allegation against the petitioners, they could not be held responsible for an offence under Section 153A.
• Lack of Mens Rea: It was submitted that the complaint failed to establish the necessary mens rea (guilty mind or intent) on the part of the accused, which is a fundamental ingredient for an offence under Section 153A.
• Magistrate's Failure to Apply Judicial Mind: The High Court also noted that the learned Chief Judicial Magistrate failed to provide reasons for taking cognizance without the mandatory sanction and did not sufficiently assess the prima facie material before issuing summons.

The court referenced several Supreme Court judgments, including Gian Singh vs State of Punjab, Patricia Mukhim versus State of Meghalaya and others, and Bilal Ahmed Kallu versus State of A.P. These rulings emphasize the importance of freedom of speech, the specific ingredients required for offences like Section 153A, and the necessity of establishing intent to promote enmity between groups, not just inciting feelings within one community. The Bilal Ahmed Kallu judgment particularly highlighted the need for careful consideration in cases involving serious offences to prevent undue interference with a citizen's liberty.

Considering all submissions and the legal precedents, the High Court concluded that continuing the proceedings would constitute an abuse of the court's process. The lack of a mandatory sanction under Section 196 Cr.P.C. and the failure to establish the essential ingredients of Section 153A IPC were decisive factors.

Consequently, the High Court allowed the petition, quashing the proceedings in GR case number 1691 of 2012 pending before the Chief Judicial Magistrate, Howrah.

Section 196., Code of Criminal Procedure - 1973  

Code of Criminal Procedure, 1973  

Section 153A., Indian Penal Code - 1860  

Indian Penal Code, 1860