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Sanathanam case udayanithi application in sc //P.Wilson, Senior AdvocateDATE: 03.05.2024PLACE: NEW DELHI

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IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
IA No. __ of 2024
IN WP(CRL) No.104 of 2024
IN THE MATTER OF:
Udhayanidhi Stalin …Petitioner
Versus
The State of Maharashtra and Ors. …. Respondents
AN APPLICATION FOR PERMISSION TO AMEND THE PRAYER AND BRING ON RECORD ADDITIONAL DOCUMENTS
TO,
THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUDGES OF THE HON’BLE SUPREME COURT OF INDIA
THE HUMBLE APPLICATION ON BEHALF OF THE PETITIONER ABOVE MENTIONED
MOST RESPECTFULLY SHOWETH:

  1. It is humbly submitted that the present application has been filed by the Petitioner praying for leave to amend the Prayer in the above Writ Petition and to bring on record additional documents. The Writ Petition has been filed seeking the following reliefs:
    “a. Issue writ/writs in the nature of mandamus or any other appropriate writ, order or direction to quash the following FIRs registered against the petitioner:
    i) FIR No. 300/2023 dated 05.09.2023 P.S. Civil Lines, Rampur District, Uttar Pradesh
    ii) FIR No. 0366/2023 dated 12.09.2023 PS Mira Road, Mumbai,
    Maharashtra
    OR IN THE ALTERNATE
    b. Consolidate and transfer the aforementioned FIRs against the petitioner tothe file of the E-3 Teynampet Police Station, Chennai;
    c. Issue Writ/Writs in the nature of mandamus or any other appropriate writ, order, or direction to call for the records of the following criminal cases against the Petitioner and quash the same:
    (i) Complaint Case No. 8062 (C) of 2023 on the file of the ACJM-1st-cum-
    Special Judge (MP/MLA), Patna
    (ii) Complaint Case No. 8548 (C) of 2023 on the file of the CJM, Patna
    (iii) PCR No. 9330 of 2023 on the file of the Addl. Chief Metropolitan Magistrate, 42nd Addl CMM, Bangalore, Karnataka.
    (iv) Complaint/1067/2023 on the file of the Special Mobile Magistrate
    Passenger Tax & Shops Establishment Act, Jammu;
    OR IN THE ALTERNATE
    d. Transfer the aforementioned criminal complaints to the file of the Special Court for Trial of Cases related to Members of Parliament and Members of
    Legislative Assembly of Tamil Nadu at Singaravelar Maligai, Chennai;
    e. Issue Writ/Writs including a writ in the nature of a MANDAMUS or any other appropriate writ, restraining the Respondents No.1 to 5 from registering the any further FIRs against the Petitioner within their respective States/UT in connection with the speech of the Petitioner made at Chennai on 02.09.2023 at the Sanathan Abolition Conclave held at Kamarajar Arangam, Teynampet Chennai – 600 018.
    f. Pass such other and further order/orders, as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case in the interest of justice.
  2. It is humbly submitted that the above Writ Petition came up for hearing on 01.04.2024 this Hon’ble Court granted time to bring all the subsequent events by way of filing an application seeking Amendment in the Writ Petition and also to examine the legal issues.
  3. It is humbly submitted that on 05.02.2024, the Petitioner received Summon u/s 61 CrPC issued by the Court of the 42nd Additional Chief Metropolitan Magistrate, Bangalore in
    CC/3066/2024 directing the Petitioner to appear in person on 04.03.2024.

A Typed Copy of the Complaint being CC/3066/2024 dt. 07.09.2023 before the 42nd Additional Chief Metropolitan Magistrate is annexed herewith and marked as ANNEXURE-A1 (Page Nos. 16 to 19).
A True Copy of Summon dt. 05.02.2024 issued 42nd Additional Chief Metropolitan Magistrate, Bangalore in CC/3066/2024 is annexed herewith and marked as
ANNEXURE-A2 (Page No. 20).

  1. It is humbly submitted that after filing the instant Writ Petition, the Petitioner, on 14.03.2024 came to know about FIR No. 28 of 2023 dt. 09.10.2023 registered by P.S. Saket Nagar, District Beawar, Rajasthan under sections 298 and 295-A IPC, upon the complaint of Mahendra Singh Rawat when the Petitioner saw the summons u/s 91 of CrPC dt. 15.02.2024 issued by the SHO, PS Saket Nagar, District Beawar, Rajasthan to him being circulated on social media. Some of the press also contacted the petitioner to ask whether he intended to challenge the said summons before any Hon’ble Court. That furthermore, the FIR No. 28 dt. 09.10.2023 also pertains to the same alleged speech of the Petitioner.

A Typed Copy of the FIR No. 28 of 2023 dt. 03.09.2023 registered at P.S. Saket Nagar, District Beawar, Rajasthan is annexed herewith and marked as ANNEXURE A-3 (Page Nos. 21 to 23).
A True Copy of the Summon dt. 15.02.2024 is annexed herewith and marked as
ANNEXURE A-4 (Page No. 24).

  1. It is humbly submitted that, in light of the same, the Petitioner seeks to add, by way of amendment, the following paragraphs to the prayer clauses of the instant Writ Petition:
    a. After Prayer Clause (a) (ii)
    “(iii). FIR No. 28 of 2023 dated 03.09.2023, P.S. Saket Nagar, District Beawar,
    Rajasthan”
  2. It is humbly submitted that this Hon’ble Court on 01.04.2024 posed a question to the Petitioner so as to whether the remedy of transfer under Section 406 CrPC could have been efficacious for the Petitioner herein. The said position of law vis-à-vis the Petitioner herein is stated hereinbelow:
    a. It is submitted that presently the following FIRs/Complaints are pending as per the knowledge of the Petitioner:
    i. Complaint Case No. 8062 of 2023 dt. 04.09.2023 filed before the Ld.
    Court of Chief Judicial Magistrate, Patna. ii. FIR No. 300/2023 dt. 05.09.2023 before PS Civil Lines, Rampur
    District, Uttar Pradesh iii. PCR No. 9330/2023 dt. 07.09.2023 filed before the 42nd Additional
    Chief Metropolitan Magistrate, Bangalore iv. FIR No. 0336/2023 dt. 12.09.2023 before PS Mira Road, Mumbai,
    Maharashtra
    v. Complaint Case No. 10607/2023 dt. 16.09.2023 filed before the Ld.
    Chief Judicial Magistrate, Jammu.
    vi. Complaint Case No. 8548 of 2023 dt. 19.09.2023 filed before Ld. Court of Judicial Magistrate, Patna.
    vii. FIR No. 28 dt. 09.10.2023 before PS Saket Nagar, Beawar, Rajasthan

b. It is submitted that these FIRs and Complaints are at the nascent stage and in none of the cases, a chargesheet has been filed. That at as per the Section 406 of the CrPC, this Hon’ble Court can only transfer a case or an appeal and not an investigation pending before any court.

c. It is submitted that this Hon’ble Court has in a catena of decisions has held that an investigation cannot be clubbed or transferred under Section 406, CrPC.

d. It is submitted that this Hon’ble Court in Dr. Ram Chander Singh Sagar and Anr. vs. State of Tamil Nadu and Anr. (1978) 2 SCC 35 had held that this Hon’ble Court did not have power under Section 406 with the power to transfer investigations from one police station to another in the country simply because the first information or a remand report is forwarded to a Court.
A copy of Dr. Ram Chander Singh Sagar and Anr. vs. State of Tamil Nadu and Anr. (1978) 2 SCC 35 is annexed herewith and marked as ANNEXURE A-5 (Page Nos. 25 to 26).
e. It is submitted that this Hon’ble Court had applied Dr. Ram Chander Singh (supra) in Rhea Chakraborty vs. State of Bihar (2020) 20 SCC 184 had opined that under the contour of the power under Section 406 CrPC, it must be concluded that only cases and appeals (not investigation) can be transferred. However, it is submitted that the investigation in the said case was transferred by this Hon’ble Court to the CBI by invoking its powers under Article 142 of the Constitution. That furthermore, this Hon’ble Court also made it clear that the conclusion and observations in this order is only for disposal of that petition and should have no bearing for any other purpose.
A copy of Rhea Chakraborty vs. State of Bihar (2020) 20 SCC 184 is annexed herewith and marked as ANNEXURE-A6 (Page Nos. 27 to 45).
f. It is further submitted the said principle was further followed by this Hon’ble Court in State of Uttar Pradesh vs. Jail Superintendent (Ropar) and Ors. (2021) 19 SCC 519 wherein this Hon’ble Court had strictly observed that since the subject case was at the investigation stage, therefore, it could not be transferred under Section 406 CrPC. However as similar to Rhea Chakraborty (supra), this Hon’ble Court transferred the FIRs after invoking Article 142 of the Constitution.
A copy of State of Uttar Pradesh vs. Jail Superintendent (Ropar) and Ors. (2021) 19 SCC 519 is annexed herewith and marked as ANNEXURE-A7 (Page Nos. 46 to 73).
g. It is submitted that recently, this Hon’ble Court in Neelima Suri & Anr. vs. State of Madhya Pradesh & Anr. T.P. (CRL) No. 597/2022, had observed that this Hon’ble Court cannot transfer the investigation of an FIR under Section 406 CrPC. It is only when after investigation there is a likelihood of causing some prejudice to an accused in the course of trial, that the power under Section 406
of CrPC can be invoked in exceptional cases and sparingly. That as similar to Rhea Chakraborty and State of UP (supra), this Hon’ble Court invoked its powers under Article 142 for clubbing and transferring the FIRs involved.
A copy of Neelima Suri & Anr. vs. State of Madhya Pradesh & Anr. T.P. (CRL)
No. 597/2022 is annexed herewith and marked as ANNEXURE-A8 (Page Nos.
74 to 82).
h. It is submitted that therefore, this Hon’ble Court has held in a catena of decisions has held that there is a bar on this Hon’ble Court under Section 406 CrPC in transferring investigations. Henceforth, a remedy under Section 406 CrPC is not efficacious for the Petitioner herein.

  1. It is humbly submitted that this Hon’ble Court also posed the question so as to whether the decisions for clubbing and transfer of pending FIRs passed by this Hon’ble Court under Writ jurisdiction in the cases of media persons could also be applicable to the Petitioner herein. The question is answered accordingly hereinbelow:
    i. That at the outset the speech was made in a closed auditorium meant for the invitees, who are followers of same ideology on abolition of caste discrimination and is not a public speech. In the case of Shreya Singhal Vs Union of India 2015 SCC Online SC 248 this Hon’ble Court has held that liberal views such as emancipation of women or the abolition of caste system may cause annoyance, inconvenience or may be grossly offensive to some, however, if such views are restricted merely because they are unpalatable to certain section of people, it would result in a chilling effect on freedom of speech and expression. That furthermore, this Hon’ble Court in Indibilty creative Private Ltd Vs Government of West Bengal and others 2020 (12) SCC 436 while approving the principles laid down in the judgment of Hon’ble Madras High Court in Perumal Murugan’s case clearly protects the speech which may despise as the principle is at the heart of democracy.
    A copy of Shreya Singhal Vs Union of India 2015 SCC Online SC 248 is annexed herewith and marked as ANNEXURE-A9 (Page Nos. 83 to 263).
    A copy of Indibilty creative Private Ltd Vs Government of West Bengal and others 2020 (12) SCC 436 is annexed herewith and marked as ANNEXUREA10 (Page Nos. 264 to 294).
    j. Article 25 is subject to Article 19 of Indian Constitution. Art 25 protects Atheism. In the case of Ranjeet Suryakant Mohite (Dr.) v. Union of India, 2014 SCC OnLine Bom 1121, the Division Bench of Hon’ble Bombay High Court held that Article 25 grants the citizen the freedom to practice and propagate atheism. Article 51(h) states that every citizen has a fundamental duty to cultivate a scientific temperament, humanism and the spirit of inquiry and “reform”. Art 51(e) state that “…to renounce practices derogatory to the dignity of women”. Facing multiple FIR’s and complaints arising out of impugned speech in different states will affect the Petitioner’s right to defend and would violate Art 21. Therefore, when constitution guarantees speech and reforms, any threat made to the same, would entitle the Petitioner to approach this Hon’ble Court under Art 32 to enforce his fundamental rights and when such writs are issued under Art 144, all authorities, civil and judicial shall act in aid of this Hon’ble Court. Therefore, the remedy before this Hon’ble court under Art 32 is maintainable as similar writs have been entertained and orders have been passed in various cases of this nature.

A copy of Ranjeet Suryakant Mohite (Dr.) v. Union of India, 2014 SCC
OnLine Bom 1121 is annexed herewith and marked as ANNEXURE-A11
(Page Nos. 295 to 299).

k. The complainants in various cases who are not from Tamil Nadu have not personally attended the conference nor heard the entire speech but claims to have watched from the TV Channel or read from the newspapers which are in truncated form. Prima-facie no offences are made out in any of the impugned complaints/FIRs.

l. It is respectfully submitted that any inference that a journalist employed with a television news channel and a Minister of the State Legislative Assembly to have different yardsticks vis-à-vis right to exercise free speech would be against the ethos of the right to speech and expression and violation of Art 14.
m. This Hon’ble Court in Amish Devgn vs. Union of India (2021) 1 SCC 1 has observed the following:
“75…….
Communities with a history of deprivation, oppression and persecution may sometimes speak in relation to their lived experiences resulting in the words and tone being harsher and more critical than usual. Their historical experience often comes to be accepted by the society as the rule, resulting in their words losing the gravity that they otherwise deserve. In such a situation, it is likely for persons from these communities to reject the tenet of civility, as polemical speech and symbols that capture the emotional loading can play a strong role in mobilising. [ Myra Mrx Ferree, William A. Gamson, Jurgen Gerhards and Dieter Rucht, “Four Models of the Public Sphere in Modern Democracies”, published in Theory and Society, Vol. 31, No. 3 (June, 2002), pp. 289-324.] Such speech should be viewed not from the position of a person of privilege or a community without such a historical experience, but rather, the courts should be more circumspect when penalising such speech. This is recognition of the denial of dignity in the past, and the effort should be reconciliatory. Nevertheless, such speech should not provoke and “incite” — as distinguished from discussion or advocacy — “hatred” and violence towards the targeted group. Likelihood or similar statutory mandate to violence, public disorder or “hatred” when satisfied would result in penal action as per law. Every right and indulgence has a limit. Further, when the offending act creates public disorder and violence, whether alone or with others, then the aspect of “who” and question of indulgence would lose significance and may be of little consequence.

  1. Persons of influence, keeping in view their reach, impact and authority they wield on general public or the specific class to which they belong, owe a duty and have to be more responsible. They are expected to know and perceive the meaning conveyed by the words spoken or written, including the possible meaning that is likely to be conveyed. With experience and knowledge, they are expected to have a higher level of communication skills. It is reasonable to hold that they would be careful in using the words that convey their intent. The reasonable man’s test would always take into consideration the maker. In other words, the expression “reasonable man” would take into account the impact a particular person would have and accordingly apply the standard, just like we substitute the reasonable man’s test to that of the reasonable professional when we apply the test of professional negligence. [ In Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 : (1957) 2 All ER 118, it was observed : (WLR p. 587)A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art. … Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.] This is not to say that persons of influence like journalists do not enjoy the same freedom of speech and expression as other citizens, as this would be grossly incorrect understanding of what has been stated above. This is not to dilute satisfaction of the three elements, albeit to accept importance of “who” when we examine “harm or impact element” and in a given case even “intent” and/or “content element”.
    n. It is therefore, humbly submitted that this Hon’ble Court had already recognized the concept that a journalist being a person of influence would enjoy the same freedom of speech and expression as the other citizens of the country i.e. as the Petitioner herein. The Petitioner, also being a person of influence is ought to enjoy the similar yardsticks and the scope to the right to freedom of speech and expression as any other citizen albeit a journalist, political leader or any individual practicing any occupation.
    o. Further, in the case of N.V. Sharma vs. Union of India and Ors. 2022 SCC OnLine SC 1003, who was also a politician & spokesperson of the BJP party, this Hon’ble Court clubbed the FIRs to one jurisdiction. This Petitioner is entitled to the same reliefs as Nupur Sharma.
    p. It is further submitted that the alleged speech by the Petitioner herein has to be viewed with the backdrop of the entire fulcrum of the issue i.e. the caste-based discrimination. The Petitioner being borne in the political arena of the State of Tamil Nadu having witnessed the tenets of his party Dravida Munnetra Kazhagam which are social justice and self-respect has inculcated a different mindset. The issue of caste-discrimination has been pre-dominant issue in the State of Tamil Nadu for a significant time which led to the birth and rise of the Dravidian Movement. The Petitioner being a staunch follower of Dravidian ideology and an heir of the Dravidian movement has followed the footsteps of tall leaders such as Thanthai Periyar, Perarignar Anna, Muthamizh Arignar Dr. Kalaignar and the present DMK President M.K. Stalin, all of whom have practiced and propagated the Dravidian ideology which is based on rationalism, self-respect, equality and brotherhood.
    q. It is submitted that therefore, the entire context of the alleged “speech” was the astute discrimination and oppression of fellow humans being citizens of this country based on their caste. Therefore, the Petitioner’s alleged “speech” has to be seen through the lens of astute discrimination and oppression of a large section of the population in the State of Tamil Nadu.
  2. It is humbly submitted that presently, the FIRs/Complaints other than PCR No. 9330/2023 dt. 07.09.2023 filed before the 42nd Additional Chief Metropolitan Magistrate, Bangalore, the other FIRs/ Complaints are pending before the states of Maharashtra, Bihar, Uttar Pradesh, Rajasthan and the Union Territory of Jammu & Kashmir which are currently ruled/administered by the Bharatiya Janata Party which is the ruling party at the Centre.
  3. It is humbly submitted that the Petitioner has already been receiving threats to his life. A reward of Rs. 10 crores has been announced by one Paramhans Acharya, the chief priest of the Tapaswi Chawni temple of Ayodhya, Uttar Pradesh to the person who successfully beheads the Petitioner.
  4. It is humbly submitted that the due to the same, the Petitioner faces grave threat to his life and liberty and will encounter great difficulty in appearing before different police stations and courts in different regions specifically such as the states of the Maharashtra, Bihar, Uttar Pradesh, Rajasthan and the Union Territory of Jammu & Kashmir.
  5. It is humbly submitted that the Petitioner under Article 21 has the right to fair investigation and trial and the anticipated political interference would seize the Petitioner’s right of fair trial.
  6. It is humbly submitted that this Hon’ble Court in the case of N.V. Sharma vs. Union of India and Ors. 2022 SCC OnLine SC 1003, where the Petitioner therein was the spokesperson of the Bharatiya Janata Party had taken cognizance of the serious threat to her life and liberty in a similar set of facts and was pleased to transfer all the FIRs by clubbing them for the purpose of the investigation.
  7. The Petitioner herein seeks leave of this Hon’ble Court to place on record the following documents that are imperative for just and proper adjudication of the dispute at hand:
    I. A Typed Copy of the Complaint being CC/3066/2024 dt. 07.09.2023 before the 42nd Additional Chief Metropolitan Magistrate is annexed herewith and marked as ANNEXURE-A1 (Page Nos. 16 to 19).
    II. A True Copy of Summon dt. 05.02.2024 issued 42nd Additional Chief Metropolitan Magistrate, Bangalore in CC/3066/2024 is annexed herewith and marked as ANNEXURE-A2 (Page No.20).
    III. A Typed Copy of the FIR No. 28 of 2023 dt. 03.09.2023 registered at P.S. Saket
    Nagar, District Beawar, Rajasthan is annexed herewith and marked as
    ANNEXURE A-3 (Page Nos. 21 to 23).
    IV. A True Copy of the Summon dt. 15.02.2024 is annexed herewith and marked as
    ANNEXURE A-4 (Page No. 24).
    V. A copy of Dr. Ram Chander Singh Sagar and Anr. vs. State of Tamil Nadu and Anr. (1978) 2 SCC 35 is annexed herewith and marked as ANNEXURE A-5 (Page Nos. 25 to 26).
    VI. A copy of Rhea Chakraborty vs. State of Bihar (2020) 20 SCC 184 is annexed herewith and marked as ANNEXURE-A6 (Page Nos. 27 to 45).
    VII. A copy of State of Uttar Pradesh vs. Jail Superintendent (Ropar) and Ors.
    (2021) 19 SCC 519 is annexed herewith and marked as ANNEXURE-A7 (Page Nos. 46 to 73).
    VIII. A copy of Neelima Suri & Anr. vs. State of Madhya Pradesh & Anr. T.P. (CRL)
    No. 597/2022 is annexed herewith and marked as ANNEXURE-A8 (Page Nos. 74 to 82).
    IX. A copy of Shreya Singhal Vs Union of India 2015 SCC Online SC 248 is annexed herewith and marked as ANNEXURE-A9 (Page Nos. 83 to 263).
    X. A copy of Indibilty creative Private Ltd Vs Government of West Bengal and others 2020 (12) SCC 436 is annexed herewith and marked as ANNEXUREA10 (Page Nos. 264 to 294).
    XI. A copy of Ranjeet Suryakant Mohite (Dr.) v. Union of India, 2014 SCC
    OnLine Bom 1121 is annexed herewith and marked as ANNEXURE-A11 (Page Nos. 295 to 299).
  8. The Petitioner states that the accompanying documents has vital and material bearing on the merit of the present Writ Petition. In the interest of justice, the same may be taken on record.
    PRAYER
    It is therefore prayed that this Hon’ble Court maybe pleased to:
    a) Permit the Petitioner to amend the prayer in the above writ petition and insert the following words after the Prayer Clause (a)(ii):
    “iii. FIR No. 28 of 2023 dated 03.09.2023, P.S. Saket Nagar, District Beawar,
    Rajasthan”
    b) Permit the Petitioner to bring on record additional documents; and
    c) Pass such other or further order as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.
    Vetted by
    P.Wilson, Senior Advocate
    DATE: 03.05.2024
    PLACE: NEW DELHI

(PURVISH JITENDRA MALKAN)
ADVOCATE FOR THE PETITIONER

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