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"The conduct of the petitioner would certainly outrage the moral sense of most persons. But the issue on hand must be adjudicated on the basis of objective criteria," said Madras High Court recently while quashing an FIR against a man over his Facebook post against Late CDS General Bipin Rawat.

The bench of Justice GR Swaminathan observed that the essential ingredients constituting the alleged offences under the Indian Penal Code were absent in the case as there was no reference to religion, race, place of birth, residence, language, caste, or community in the concerned Facebook post.

The Facebook Post 

Soon after the chopper carrying the first-ever Chief of Defence Staff of the Indian Armed Forces, General Bipin Rawat crashed which resulted in his demise on December 8 last year, accused G.Sivarajaboopathi wrote a post on his Facebook page in which he called the late CDS a ‘Dictator’ and ‘mercenary of the fascists’.  

Heckled by Sivarajaboopathi's this post, a person named Dharmaraj filed a complaint before the Inspector of Police, Cyber Crime Police Station, Nagercoil, and a case was registered against him and one other for the offences under Sections 153, 505(2) and 504 of IPC on December 15, 2021.

Court's observations

Dealing with Sivarajaboopathi's petition to quash the FIR in the matter, the single judge bench of the high court observed that “Who? What ? and Where? test which is employed to determine whether the words amount to a hate speech or not can be invoked in the context of Section 153 of IPC also."

Court said that Sivarajaboopathi had only posted the text on his Facebook page which was no doubt defamatory but then, it was only the aggrieved individual who had the locus standi to lodge a private complaint.

Accordingly, court held, "Making an uncivil remark directed against a particular individual in the social media in the facts and circumstances of the case would certainly not lead to the situation contemplated by Section 153 of IPC. The fundamental requisite of Section 153 of IPC is absent in this case."

However, in the order, Justice Swaminathan observed that "the person who died was no ordinary person. He was the Chief of Defense Staff (CDS). The circumstances in which he died were extremely tragic. It was nothing short of a national calamity. More than anything else, he was a professional soldier."

Consequently, he noted that "I do not know the petitioner's ideological background. I guess that he must be allergic to the national epic."

Further, before parting with the matter, Justice Swaminathan remarked that he wanted Sivarajaboopathi to read the final Chapter of Mahabharata where all the characters are dead and Yudhishthira is the last to go.

Justice Swaminathan noted,

"When he entered the heaven, he was shocked to see Duryodhana seated happily. Filled with rage, he uttered harsh words. Narada smilingly told him 'It should not be so, Yudhishthira!. While residing in Heaven, all enmities cease. Do not say so about king Duryodhana'."

In the end, Justice Swaminathan added that while Sivarajaboopathi was entitled to criticise the legacy of the late General, the way he has reacted to the General's death was not in consonance with Tamil Culture.

Case Title: G.Sivarajaboopathi v. State and Another