Madras High Court
Vijayakant vs The State Of Tamilnadu on 7 March, 2013
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.03.2013
CORAM
THE HONOURABLE MR. JUSTICE VINOD K.SHARMA
W.P.No.689 & 690 of 2013
and
W.P.No.1527 of 2013
and
M.P.No.2 of 2013 in W.P.No.689 of 2013,
M.P.No.2 of 2013 in W.P.No.690 of 2013
and
M.P.No.1 of 2013 in W.P.No.1527 of 2013
VIJAYAKANT
LEADER OF OPPOSITION - T.N. LEGISLATIVE
ASSEMBLY NO.10/12-A KANNAMMAL ST
SALIGRAMAM KANNABIRAN COLONY,
CHENNAI 93 .. PETITIONER IN ALL W.Ps.
Vs.
1 THE STATE OF TAMILNADU
REP BY ITS SECRETARY TO GOVERNMENT PUBLIC
DEPARTMENT (LAW AND ORDER - H) FORT ST.
GEORGE CHENNAI .. RESPONDENT No.1 in all W.Ps.
2 THE PUBLIC PROSECUTOR
VILLUPURAM DISTRICT .. RESPONDENT No.2 in W.P.No.689/2013
3 THE PUBLIC PROSECUTOR
DINDIGUL DISTRICT .. RESPONDENT No.2 in W.P.No.690/2013
4 THE PUBLIC PROSECUTOR
THANJAVUR DISTRICT .. RESPONDENT No.2 in W.P.No.1527/2013
PRAYER IN W.P.No.689 of 2013:
Writ petition has been filed under Article 226 of the Constitution of India to issue a writ of Certiorari, to quash the sanction order in G.O.M.S.No.1028/2012 of Public Department (Law and Order-H) dated 6.12.2012 passed by the 1st respondent in the complaint in C.C. No.1/2012 on the file of the Learned Principal District and Sessions Judge Villupuram.
PRAYER IN W.P.No.690 of 2013:
Writ petition has been filed under Article 226 of the Constitution of India to issue a writ of Certiorari, to quash the sanction order in G.O.Ms.No.1027/2012 of Public Department (law and Order H) dated 6.12.2012 passed by the 1st respondent in the complaint in C.C.No.1/2012 on the file of the Learned Principal District and Sessions Judge Dindigul.
PRAYER IN W.P.No.1527 of 2013:
Writ petition has been filed under Article 226 of the Constitution of India to issue a writ of Certiorari, to quash the sanction order in G.O.M.S. No. 974/2012 of Public Department (Law and Order-H) dated 16.11.2012 passed by the 1st respondent in the complaint in C.C.No. 1/2012 on the file of the Learned Principal District and Sessions Judge, Thanjavur.
For petitioner in : Mr.S.Namonarayanan
all W.Ps.
For respondents : Mr.P.H.Arvind Pandian
in all W.Ps. Addl. Advocate General
Assisted by
Mr.R.Ravichandran, A.G.P.
****
COMMON ORDER
This order shall dispose of W.P.No.689, 690 of 2013 and W.P.No.1527 of 2013, as the common question of law and facts are involved in all these writ petitions. For the sake of brevity, facts have been taken from W.P.No.689 of 2013.
3 The petitioner Thiru Vijayakant, Leader of Opposition in Tamil Nadu Legislative Assembly has filed these three writ petitions, to challenge the sanction order passed by the Tamil Nadu Government, vide G.O.M.S.No.1028/2012 dated 6.12.2012, G.O.Ms.No.1027/2012 dated 6.12.2012 and G.O.M.S.No.974/2012, dated 16.11.2012 issued by Public Department (Law and Order-H), appointing Special Public Prosecutor to file complaint for offence of defamation against the petitioner.
4 The petitioner is a founder President of Desiya Murpokku Dravidar Kazhagam, which is principal opposition party in Tamil Nadu legislative Assembly. The petitioner was elected from Rizhivanthiyam constituency in the General Election held in 2011 and is leader of Opposition in the State Assembly.
5 The party of the petitioner contested the election in coalition with All India Anna Dravida Munnetra Kazhagam. The election was won by the ruling party in coalition with the party of the petitioner by huge margins. As 146 members from A.I.A.D.M.K. were elected, whereas 29 members of the petitioner's party were also elected as M.L.A.s.
6 It is the case of the petitioner that being "leader of opposition" he raised issues concerning welfare of the people which has annoyed the Hon'ble Chief Minister of Tamil Nadu, therefore she started indulging in vengeful action against the petitioner and his party members. The petitioner has not impleaded the Hon'ble Chief Minister as party to this writ petition. Therefore, allegations of malafide cannot be looked into.
7 The case of the petitioner is that act of the State in prosecuting a person, who is elected member of the legislative assembly and is the leader of the opposition is against the fundamental character of a democratic principle, as every elected member has equal responsibility to act in the interest of the public.
8 It is also the case of the petitioner that being "leader of opposition", was required to play more vital role, as he has to participate law making process as also to criticize the wrong policy decision of the Government. This act was performed in the assembly by speaking against bills, brought against the interest of the public. Secondly, it is his duty to bring the misdeeds of the Government to the notice of the people who voted them to power.
9 It is submitted that in the State of Tamil Nadu an elected member while discharging his duties is continuously targeted, and the provisions of Code of Criminal Procedure misused by foisting false cases against them. This allegation is again general, as it lacks material particulars for writ Court to take notice thereof. According to the petitioner, this act shakes the very basis of the Constitution.
10 It is the submission of the petitioner that State Government has invoked section 199(2) of Cr.P.C. illegally.
11 Section 199(2) of Cr.P.C. reads as under:
"199. Prosecution for defamation.
(2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 of 1860) is alleged to have been committed against a person who, at the time of such commission, is the President of India, the Vice-President of India, the Government of a State, the Administrator of a Union territory or a Minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions a court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor."
12 The case of the petitioner is that besides three cases under reference, number of other cases have been filed against the petitioner, as the petitioner had undertaken a State wide compaign, addressing the people about the misdeeds of the Government, and had criticized the Govt. for wrong policy decisions.
13 The petitioner addressed a public meetings in all districts of Tamil Nadu, therefore, cases have been registered against the petitioner in all districts of the State, where the petitioner is taking steps to defend himself.
14 It is also the submission of the petitioner, that Principal District and Sessions Judge, Villupuram without applying judicial mind took complaint on file and has issued summons to the petitioner on 9.1.2013. Similarly, in other case, also the petitioner stands summoned. It is not disputed that remedy to challenge the summoning order as well as complaint is by appropriate proceedings under section 482 of the Code of Criminal Procedure.
15 This writ petition has been filed to challenge the Government order in appointing the Public Prosecutor under section 199 Cr.P.C.
16 The impugned order has been challenged on the ground, that sanction has been issued mechanically, without application of mind, as the State Government failed to see, as to how the speech of the petitioner was defamatory.
17 It is also the contention of the learned counsel for the petitioner that reading of the complaint does not make out any case of defamation under section 499 of I.P.C., therefore, issuance of a G.Os. is nothing but misuse of process of Court, thus, not sustainable in law and deserves to be quashed. This contention cannot be accepted, the question whether the complaint discloses an offence or it is misuse of process of Court can be gone into under section 482 of Cr.P.C. if any petition for quashing is filed. This Court in exercise of writ jurisdiction can only go into validity of G.O. passed under section 199 (2) of Cr.P.C.
18 It is also the contention of the learned counsel for the petitioner that issuance of G.O. is against, the first exception of section 499 of I.P.C. which lays down that "it is not defamation to impute anything which is true concerning any person, and if it be for the public good that imputation should be made or published. Whether or not it is for the public good is a question of fact". This exception cannot help the petitioner, as the question of fact is to be proved by leading evidence before the competent court, therefore it cannot be a ground to quash appointment of Public Prosecutor for prosecuting the complaint.
19 Similarly, the contention of the learned counsel for the petitioner that Government order is against the second exception to section 499 I.P.C. is also not sustainable in law, as the statement alleged to have been made is not on the floor of the assembly, but has been made in the public meeting. This again cannot be a ground to quash the G.O. as speech was made in public function, and in any case, it is to be proved by evidence whether any offence is made out against the petitioner or not.
20 The learned counsel for the petitioner also contended that the impugned statement alleged to have been made by the petitioner, is protected under exception to section 499 I.P.C. therefore, no case is made out for appointing Public Prosecutor. This contention again is misconceived. The grounds raised by the petitioner can be ground to challenge summoning order or complaint under section 482 Cr.P.C., but certainly are not grounds to challenge G.O. passed under section 199(2) of Cr.P.C.
21 The G.Os. have been issued in exercise of statutory powers vested under section 199 of the Cr.P.C., in appointing Public Prosecutor, to file a criminal complaint against the petitioner. The validity of the complaint has to be gone into by the Court of competent jurisdiction. If the person is so aggrieved by filing of the complaint, he has to challenge the same being misuse of process of law or that complaint does not disclose any offence even the averments are taken on the face value.
22 The grievance of the petitioner that number of cases have been registered on the same cause of action and in different district again, cannot be a ground to challenge the G.O. in appointing Special Public Prosecutor to prosecute cases, in the criminal Court.
No merit, dismissed.
No costs.
vaan To 1 THE SECRETARY TO GOVERNMENT STATE OF TAMILNADU PUBLIC DEPARTMENT (LAW AND ORDER H) FORT ST. GEORGE CHENNAI 2 THE PUBLIC PROSECUTOR VILLUPURAM DISTRICT 3 THE PUBLIC PROSECUTOR DINDIGUL DISTRICT 4 THE PUBLIC PROSECUTOR THANJAVUR DISTRICT