Madras High Court
V.P. Shanmugam And Anr. vs Thangavelu on 13 August, 1957
ORDER Ramaswami, J.
1. This is a revision which has been preferred against the order made by the Additional First Class Magistrate, Pollachi, M. P. No. 67 of 1957 in C.C. No. 88 of 1957.
2. The first respondent before us Thangavelu stood for election to the Madras Legislative Assembly in the recent general elections. He was the nominee of the Praja Socialist Party supported by the Communist Party, and was being opposed by a Congress Party candidate. In, these circumstances a printed notice was published and circulated by the revision petitioners before us. That notice contained a series of rhetorical questions whether it was true or not that this Tuangavelu used to receive money and withdraw from contest in elections.
Beyond these rhetorical questions no particulars are mentioned which would enable this Thangavelu to refute them. In fact this Than-gaveled in his evidence as P.W. 1 in the lower court has categorically denied all those allegations and has given adequate explanations for his withdrawals at the end. Thangavelu filed, a complaint for an offence under Section 500 IPC against the revision petitioners for statements-which are per se defamatory. They then filed an application M P. No. 67 of 1957 in the lower court for dropping further proceedings on the ground that the complaint would fall under Section 171-G IPC which requires for its maintenance the sanction of the Government under Section 196 CrIPC The learned Magistrate held that the offence would fall under Section 500 IPC and required no previous sanction of the Government and dismissed the application. Hence this revision.
3. In revision I am of the same opinion as the learned Magistrate and here are my reasons.
4. False statements of fact in relation to the personal character or conduct of a candidate are penalised by Section 171-G IPC which corresponds to S. l of the Corrupt and Illegal practice Act, 1895 (58 and 59 Vic. Ch. 40). In fact acknowledgment of the same is made in the Statement of Objects and Reasons; See Gazette of the India, Part V, D/- 3rd July 1920, Page 135. It is set out in Section 123 (5) of the (Indian) Representation of the People Act, 1951:
The publication by a candidate or his agent, or by any person with the connivance of the candidate or his agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects; of that candidate's election.
5. This section penalises the publication of a false statement of tact or election lies concerning the personal conduct or character of a candidate. This offence may be committed by any person or association, whether corporate or Incorporate. The section does not apply to defamatory statements about persons who are not candidates, (Narayanaswami v. Devaraja A.I.R. 1936 Mad 316 : 1935 Mad WN 1164 (A) ).
6. Two things are essential. It must be a statement of fact and relate to the personal character of a candidate. Secondly, the section would not be contravened where the statement was a statement not of a fact but merely of opinion unless the expression of opinion was supported by instances. Such reference must not be merely Inferential.
7. An offence under Section 171-G is not a species of the more general offence of defamation and the section cannot be said to have been carved out of Section 499 I, P.C. There may be cases under Section 171-G of the Code, which do not fall under Section 499 and vice versa. It cannot therefore be insisted that the complainant, should proceed against the accused in respect of the offence under Section 171-G and not under Section 499 (3) IPC Bhagolelall v. Emperor A.I.R. 1940 Nag 249 : 41 Cri LJ 734 (B)
8. No prosecution can be Initiated for an offence under Section 171-G without the sanction of Government as provided in Section 19fi CrIPC But it is only when the offence strictly falls worry the purview of this section that a sanction is necessary. Therefore, where the statement is merely defamatory and does not fall under this section no sanction is necessary.
9. To sum up, an offence in order to fall under Section 171-G the points required to be proved are:
1. That an election was impending.
2. That the accused made or published a statement.
3. That it purported to be a statement of fact.
4. That it related to the personal conduct or character of a candidate.
5. That he published it with intent to pre- judge his election.
6. That it was false or that the accused had no reasonable grounds for believing it to be true.
10. To conclude, in the language of Parker's Election Apent and Returning Officer, there is no special privilege attached to speeches made during an election.
A speaker has full freedom of speech on matters of public interest and general concern. He may express his honest opinion however adverse of the policy or public conduct, of any public man and his comments if uttered fairly With an honest purpose and not maliciously are not actionable even though they may affect the reputation of individuals....The mere fact that this opponent is also a candidate for election to Parliament does not give the speaker a light to discuss all his private life and history.
11. Unless a speaker is in a position to show that he had good reason such as would convince a man of ordinary common sense to believe the truth of the statement he proposes to make such statement had better be left unsaid. The political address or the public career or speeches Of his rival are fair subjects for bona fide discussion and unfavourable comments are privileged. He should not however allude to the private life or circumstances of any candidate. He should always bear in mind the distinction between criticism and allegation of fact.
12. It was one thing to comment upon or criticise even with severity the acknowledged or proved acts of a public man and quite another to assert that he has been guilty of particular act of misconduct. (Davis v. Sheptstone, (1886) 11 AC 187) (C). See also Barley v. Edmons, 1895-1 TLR 537 (D), Silver v. Benn, 1896-12 TLR 199-(E), St. Georges. 1896-5 C' M . H. 104 (F); Mon-mouth Case, 1901-5 O'M & H 171 (G); Cocker-mouth Case, 1901-5 O'M .& H 155 (H); Rogerson, Elections, 19th Edn. P. 559-560 : Halsbury, Hail-sham Edn. Vol. 12 page 219 and foil:.
13. The Madras decisions on this subject may be briefly noticed. In Radhakrishna v. Emperor A.I.R. 1932 Mad 511 (I), a Bench of this Court held that for an offence under Section 171-G-something must be stated as a fact, and not as-a general imputation or matter of opinion. In? other words, where the bulk of the evidence consisted of mere general expressions, the offending document would not fall under Section 171-G. Statements of fact are those statements of the falsity of which prima facie proof is possible.
14. In A.I.R. 1936 Mad 316 (A), it was held that general charges of misconduct are not statements of fact within the meaning of Section 171-G, IPC and that though one of the statements may be construed as a statement of fact when the other statement was a general imputation of misconduct unaccompanied by any charge of particular acts not amounting to statement of fact, this would not fall under Section 171-G. I.P.C.
15. In Mohamed Kadir v. Rahimatullah A.I.R. 1940 Mad 230 (J), it was held that the-publication by one of the contestants to an election that the other contestant is a leper, knowing it to be untrue with the mala fide intention of injuring the latter's reputation and? humiliating him before the public does not constitute an offence under Section 171-G IPC
16. In Narayana Iyer v. Veerappa Pillai, , it has been held by a Full Bench of this Court that where an alleged offence falls both under Section 193 and Section 500 IPC a complaint of the court under Section 195 (1), Cri P.C. is not necessary to enable the Magistrate to take cognizance of a complaint under Section 500 alone.
17. The Indian Law on this subject Section 171-G and Section 123 (5) of the Representation of the People Act will be found fully discussed in Ratanlal's law of Crimes, 16th Edn p. 401; Dr. Nandlal's The Indian Penal Code, Vol. I, p 842; V. B Raju, I.C.S. Penal Code, p. 551 (1957); Dr Sir Harisingh Gour's Penal Law of India. 6th Edn. 1955, Vol. I. p. 725; and the uptodate and very useful M. L. J. publication, the Representation of the People Act by Messrs. R. Srinivasan and R. Mathurbhutham at pages 278 and following giving useful extracts from Indian Election cases by Sen and Poddar page 451 and Hammond Indian Candidate and Returning Officer, page 278 and citing Agra City (N. M. O.) 1925 case (Hammond); Bulandasar District West (Hammond, p. 233). West Coast and Nilgiris (Hammond) p. 709 and Bihar and Orissa Landholders. 1945. page 129. Birbhum, P. 250. Gorkahpur North, page 330 and Hyderabad North P. 406 from Sen and Poddar Indian Election Cases for the type of statements hit by Section 123 (5).
18. Therefore the conclusion of the learned Magistrate that the allegations on which the complaint is now confined cannot be construed as a, statement of facts, is correct.
19. This re vision case is dismissed.