Marathi actress Ketaki Chitale was arrested on May 14, 2022, by Thane Police, Maharashtra for a post shared on Facebook. The post was a poem in the style of an “Abhang”(traditional Maharashtrian hymn) about a corrupt 80-year-old man, “Pawara”, with missing teeth and saliva dribbling all the time, jealous of Brahmins and destined to go to hell.
Apparently authored by advocate Nitin Bhave, according to media reports, the same was circulated by others on social media in the year 2020. However, the poem went viral after Ketaki Chitale posted it on Facebook.
Though the poem did not name Sharad Pawar (Pawar is a common surname in Maharashtra), his followers in the Nationalist Congress Party (NCP) readily identified it as referring to him and filed a spate of complaints all over Maharashtra, said to be 30 at last count. The Maharashtra Police readily obliged, registering multiple FIRs against Chitale for the same Facebook post, all over Maharashtra. She was moved from the Police station to Police Station and from one jail to another. Initially, she refused legal help but has now accepted legal support.
I do not intend to go into whether the poem was in good taste or not, but only whether the FIRs against her are legally sustainable. I will attempt to make the analysis easy for non-lawyers to understand, shorn of as much legalese as possible. Lawyers may forgive me for oversimplification.
There are two kinds of offences under Indian criminal law, cognizable (which a Police officer can directly take cognizance of, register an FIR and arrest without warrant – typically for violent crimes such as murder, rape, kidnapping etc.) and non-cognizable, in which the Police cannot arrest any person without warrant and express permission of the court is also required for investigation (for less heinous offences like forgery, cheating, assault, defamation etc.). In other words, in a case of defamation, the Police cannot directly register an FIR.
As per Section199 of the Code of Criminal Procedure (CrPC), the person defamed has to file a complaint before a Magistrate and only if the Magistrate sees merit in the complaint, he issues summons to the Accused. Further, offences are classified as bailable/non-bailable and compoundable/non-compoundable, but this need not be gone into for this article.
Among the various sections of the Indian Penal Code (IPC), the Police in their enthusiasm have pressed into service the following significant sections of the IPC against Ketaki Chitale; Sections 500, 501 (relating to defamation), 504 (intentional insult to provoke breach of peace). These sections are non-cognizable and Police couldn’t have registered an FIR on this basis. In my view, the poem (however distasteful it might be), even if it is assumed to refer to Sharad Pawar, may amount, at the most, to defamation. Police cannot register an FIR for defamation.
The legal position was reiterated recently by the Bombay High Court in Amol Kashinath Vyavahare vs Purnima Chaugule Shrirangi and Anr. (April 27, 2022) Section 295 A (Deliberate and malicious acts intended to outrage the religious feelings of any class by insulting its religion or religious beliefs). This is clearly inapplicable. In fact, it is reported that Pawar is an atheist.
Section 153A, 505, 505(2) (promoting hatred, ill will etc. between classes etc.) are clearly inapplicable as the poem cannot be said to be intended to cause enmity between classes of people on the basis of religion, caste etc. It has been held by the Supreme Court in Bilal Ahmed Kaloo vs State of AP (1997) and by the Guwahati High Court in Subal Kumar Dey vs State of Tripura (2007) that to sustain such a charge, there has to be at least two such groups mentioned. These sections, therefore, seem to have been added only to enable the Police to arrest Ketaki Chitale without a warrant.
As can be seen from the various sections of IPC applied, none carries a sentence of more than seven years, hence she was entitled to prior notice under Section 41 A of the CrPC as mandated by the Supreme Court in Arnesh Kumar vs State of Bihar (2014). No such procedure appears to have been followed by the Police in this case.
Another aspect of the case is the registration of a huge number of FIRs on the same cause of action i.e. the Facebook post. It is a fundamental legal principle that a person cannot be prosecuted and punished twice for the same offence and the principle is incorporated in Article 20 of the Constitution of India. It follows that there cannot be multiple FIRs and multiple prosecutions for the same offence (in this case the same social media post). This has been repeatedly reiterated by the Supreme Court in several cases including TT Antony vs State of Kerala and Ors. (2001), Babubhai vs State of Gujarat (2010), Arnab Ranjan Goswami Vs Union of India and Ors (2020) and Amish Devgan Vs Union of India (2020).
However, even though the Police, particularly the IPS officers, are aware of these judgments, they turn a blind eye to them to please their political masters. It’s a shameful state of affairs and needs the attention of the courts.
The Police action against Ketaki Chitale is, therefore, in my opinion, full of illegalities and the cases against her deserve to be quashed and set aside. Sharad Pawar is, of course, still left with the remedy of approaching a magistrate to file a case of defamation if he feels he has been defamed.
I gather that Ketaki Chitale has now filed a Petition in the Bombay High Court seeking to quash and set aside the FIRs against her. Will she get justice? Let’s see.
(Anirudh Ganu is an Advocate practising in the Bombay High Court and other Courts in Mumbai. He regularly takes up public causes)
(Disclaimer: Views expressed above are the author’s own.)