Sanchjayita Lahkar

The High Court of Kerala Single Bench of Justice V.G. Arun allowed a petition seeking to terminate criminal proceedings arising from comments posted in a WhatsApp group concerning contributions to the Chief Minister’s Distress Relief Fund (CMDRF) for rehabilitation related to the Chooralmala–Mundakkai landslide. The Court directed that the continuing prosecution under the invoked statutory provisions be brought to an end. The Bench ordered that the final report and all further proceedings in the concerned case pending before the jurisdictional Magistrate be quashed.

The decision, issued on 4 July 2025, concluded the matter by granting the relief sought and setting aside the prosecution based on the materials placed before the Court. The operative portion of the order makes clear that the Miscellaneous Case was allowed and that the prosecution, as framed in the final report and pursued in the calendar case before the trial court, cannot continue. The directive is confined to the proceedings arising from the identified crime and calendar case, and the Court’s action was limited to quashing the final report and all consequential proceedings then pending before the trial court as against the petitioners.

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The proceedings before the High Court arose from a crime registered as Crime No. 434 of 2024 at the Bekal Police Station, Kasaragod District. The matter subsequently progressed as C.C. No. 2519 of 2024 on the file of the Judicial First-Class Magistrate Court-II, Hosdurg. According to the materials recorded in the order, the petitioners were arrayed as accused Nos. 1 and 2 in that crime and calendar case.

The prosecution alleged that the petitioners posted negative comments in a WhatsApp group about solicitation of contribution to the Kerala Chief Minister’s Distress Relief Fund (CMDRF), which was being sought for the rehabilitation of victims of the landslide events identified as Chooralmala–Mundakkai. The allegation further stated that the comments were derogatory, capable of creating riot, and intended to dissuade the public from contributing to the CMDRF. The allegations were investigated and culminated in a final report submitted in respect of Crime No. 434 of 2024, leading to the calendar case pending before the Magistrate.

The statutory provisions cited in the order as having been invoked against the petitioners included Sections 192 and 45 of the Bharatiya Nyaya Sanhitha, 2023 (BNS), Section 51 of the Disaster Management Act, 2005, and Section 120(o) of the Kerala Police Act, 2011. The case record, as summarized in the High Court order, indicates that the prosecution’s theory linked the WhatsApp comments to potential public disorder and to discouraging contributions to a government relief fund during a period of disaster-related rehabilitation efforts.

The petitioners approached the High Court challenging the continuation of the criminal proceedings arising from the said allegations. As set out in the order, the learned counsel for the petitioners submitted that the petitioners had only asked the members of the WhatsApp group to verify the credentials of persons seeking contributions and to donate only to those considered trustworthy. On that version, the petitioners’ case was that a comment so limited in character, and posted in a closed WhatsApp group, could not result in the commission of criminal offences or justify prosecution.

In response, the learned Public Prosecutor opposed the petition. As recorded by the Court, the Public Prosecutor contended that the context of the comments, the timing of their publication, and the pointed criticism against the party in power constituted clear proof of the intention to create riot and to obstruct the flow of contributions to the CMDRF. The contention further included that the question whether the petitioners possessed the requisite intention ought to be decided on evidence during trial, and therefore the continuation of the proceedings was warranted.

The order also notes the Court’s perusal of the comments when read as a whole. The materials showed that the comments were posted during a discussion regarding utilization of contributions made to the CMDRF. The Court recorded that there were comments about mis-utilisation of donated money and comments directed against the political party in power. The petitioners’ case, as encapsulated in their submission, was that even on those materials no criminal intention or ingredients of the offences were made out. The prosecuting agency, however, maintained that the nature and timing of the comments, and their alleged effect on public order and on contributions to the relief fund, justified the invocation of the cited penal provisions.

The record before the High Court included the First Information Report (FIR) and the final report. The order identifies Annexure A1 as the certified copy of the FIR dated 1 August 2024 in Crime No. 434 of 2024 of Bekal Police Station, and Annexure A2 as the certified copy of the final report dated 2 September 2024 in the same crime number. The final report led to the institution of C.C. No. 2519 of 2024 before the Judicial First Class Magistrate Court-II, Hosdurg. The petition before the High Court sought to quash the proceedings as against the petitioners.

The statutory matrix presented in the order required consideration of the ingredients of Sections 192 and 45 of the BNS, Section 51 of the Disaster Management Act, 2005, and Section 120(o) of the Kerala Police Act, 2011. Section 192 BNS, as described in the order, relates to malignant or wanton acts giving provocation to any person, intending or knowing that such act is likely to provoke the other to commit the offence of rioting, provided the act is illegal. Section 45 BNS addresses rioting, which, as indicated by the order’s analysis, involves force or violence by an unlawful assembly or any member thereof in prosecution of the assembly’s common object. Section 51 of the Disaster Management Act, 2005 is concerned with obstruction of a public servant in discharge of functions under the Act, or refusal to comply with directions issued by the Government or authorities under the Act. Section 120(o) of the Kerala Police Act, 2011, as referenced, was also part of the array of offences.

On the basis of the parties’ submissions and the record materials annexed to the petition, the Court was called upon to determine whether the continuation of the prosecution as framed in the final report could legally proceed. The petitioners sought quashing of Annexure A2 and the resulting proceedings in the calendar case, whereas the prosecution urged that the matter should go to trial for determination of intention and effect, given the allegations about the comments’ timing, content, and potential to create riot or discourage contributions to the relief fund.

The order records the date of final hearing as 4 July 2025 and notes that on the same date the Court passed the order allowing the petition. The outcome, detailed in the operative portion of the order, granted the relief sought by the petitioners by quashing the final report and all further proceedings in the calendar case, thereby concluding the prosecution as against the petitioners arising from Crime No. 434 of 2024.

In its discussion of the materials, the Court recorded that the comments, “when read as a whole,” were posted in the course of a discussion on the utilization of CMDRF contributions. The order states that there were comments about mis-utilisation and against the political party in power. The Court observed that adverse reactions to the subject matter or to political content cannot, by themselves, transform such comments into criminal acts. In words chosen by the Court, “Even if so, to assume that such comments are capable of causing riot among the public and nuisance to others, is to say the least, preposterous.” The Court added that the lack of palatability of the comments to any group or even to the Government did not, of itself, permit initiation of criminal prosecution, noting that “the comments, though critical of the Government, are well within the bounds of law.”

In articulating the principles informing its approach, the Court reiterated constitutional protections. It stated: “Our Constitution guarantees the right to freedom of speech and expression to every citizen. Fair criticism and right to express dissent is intrinsic to the concept of democratic governance.”

The order also records passages from precedent. Citing the Supreme Court’s judgment in Bennett Coleman & Co. and Others v. Union of India and Others [(1972) 2 SCC 788], the order reproduces the following: “The faith of a citizen is that political wisdom and virtue will sustain themselves in the free market of ideas so long as the channels of communication are left open. The faith in the popular Government rests on the old dictum, ‘let the people have the truth and the freedom to discuss it and all will go well’. The liberty of the press remains an ‘Art of the Covenant’ in every democracy. Steel will yield products of steel.”

The order further quotes: “Political philosophers and historians have taught us that intellectual advances made by our civilisation would have been impossible without freedom of speech and expression. At any rate, political democracy is based on the assumption that such freedom must be jealously guarded. Voltaire expressed a democrat’s faith when he told an adversary in argument: ‘I do not agree with a word you say, but I will defend to the death your right to say it.’ Champions of human freedom of thought and expression, throughout the ages, have realised that intellectual paralysis creeps over a society which denies, in however subtle a form, due freedom of thought and expression to its members.”

The Court also noted and quoted from Robert H. Jackson, J., in American Communications Assn. CIO v. Douds [339 US 382 (1950)]: “Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored.” The High Court placed these formulations in the context of the case by recording that “Clamping persons expressing dissent or raising criticisms with criminal cases is an affront to the democratic values enshrined in our Constitution.”

The order then connected these principles to the relief granted by noting that the comments in question, being “fair criticism,” could not justify the continuation of the prosecution and that such continuation would be an abuse of process and violative of the freedom of speech and expression.

Turning to the specific offences, the Court recorded the legal requirements and applied them to the facts as disclosed. On the offence of rioting, the order states that for constituting the offence, “force or violence must be used by an unlawful assembly or any member thereof in prosecution of the common object of such assembly.” Examining Section 192 BNS, the order states that for that offence to be attracted, “the offender must have malignantly or wantonly, by doing an act which is illegal, given provocation to any person, intending or knowing that his act is likely to provoke the other to commit the offence of rioting.” The Court recorded its conclusion that “By no stretch of imagination can fair criticism of governmental action be termed as something done with the intention to provoke others to commit rioting.” The order extends this reasoning to Section 120(o) of the Kerala Police Act as well, stating that the same conclusion applies to that offence in the factual context shown by the materials.

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With respect to Section 51 of the Disaster Management Act, 2005, the Court recorded that for attracting the offence, “either a public servant must be obstructed from discharging his functions under the Act or there must be refusal to comply with the directions issued by the Government or the authorities under the Act.” The order then states that “As the request for contribution made by the Government cannot be termed as a direction, comments alerting the members of a WhatsApp group to be cautious while making the contributions will not amount to refusal of a direction issued under Section 51 of the Disaster Management Act.” The Court’s observations on the statutory ingredients thus directly informed the ultimate order to quash the prosecution as against the petitioners.

The order concludes its analysis by linking the constitutional and statutory findings to the procedural outcome. The Court recorded that the comments were “fair criticism,” and that continuation of the prosecution would be an abuse of process of law and violative of constitutional guarantees. The cumulative effect of the legal analysis, supported by the quoted passages, led the Court to allow the Miscellaneous Case and to quash the final report and all further proceedings then pending before the Magistrate as against the petitioners.

The Court stated: “For the aforementioned reasons, the Crl.M.C is allowed.” The order then specified the precise legal effect by recording: “Annexure A2 final report and all further proceedings in Crime No. 434 of 2024 registered at the Bekal Police Station, now pending as C.C No. 2519 of 2024 on the files of the Judicial First Class Magistrate Court-II, Hosdurg, as against the petitioners, are quashed.”

Advocates Representing the Parties

For the Petitioners: Sri. T. Madhu, Smt. C.R. Saradamani, Shri. Renjish S. Menon, Smt. Aleena Jose, Smt. Avanthika R., Shri. Karthik Krishna M.

For the Respondents: Smt. Sheeba Thomas, Public Prosecutor; for State of Kerala

Case Title: Gowri Sankari V.S & Anr. v. State of Kerala & Ors.

Neutral Citation: 2025: KER:49154

Case Number: Crl.M.C. No. 497 of 2025 (Crime No. 434/2024; C.C. No. 2519/2024)

Bench: Justice V.G. Arun