Madras High Court
Thiru.M.K.Stalin vs The Public Prosecutor
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.O.P.No.27846 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 08.10.2020
PRONOUNCED ON : .01.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.No.27846 of 2018 and
Crl.M.P.Nos.16147 & 16148 of 2018
Thiru.M.K.Stalin, M.L.A., M/a. 64 yrs.,
Leader of Opposition Tamil Nadu Legislative Assembly,
The President, Dravida Munnetra Kazhagam, Chennai,
Address of the Headquarters of the Political Party,
No.367 & 369, Anna Salai, Teynampet, Chennai – 600 018,
Having his residing at:
No.25/9, Chittarangan Road, Cenotap Road,
Alwarpet, Chennai-600 018. ... Petitioner
Vs.
The Public Prosecutor,
Salem District,
Salem. ... Respondent
PRAYER: Criminal Original Petition is filed under Section 482 of the Code of
Criminal Procedure, to call for all the records and QUASH all the proceedings
in C.C.No.53 of 2018 on the file of the learned Special Court for Politicians
cases (MP & MLA) at Chennai.
For Petitioner : Mr.S.Senthilmurugan
For Respondent : Mr.Hasan Mohamed Jinnah,
State Public Prosecutor assisted by
Mr.A.Damodaran,
Additional Public Prosecutor
*****
Page No.1 of 13
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.27846 of 2018
ORDER
This Criminal Original Petition has been filed to quash the proceedings in C.C.No.53 of 2018, on the file of the Special Court for Politicians cases (MP & MLA) at Chennai.
2.The gist of the case is that at the time of occurrence, the petitioner was the Leader of the Opposition and President of political party viz., Dravida Munnetra Kazhagam. The petitioner along with the political parties conducted a protest and demonstration near Salem District Collector Office on 18.09.2018 and made public speech against the then Hon'ble Chief Minister of Tamil Nadu. The public speech made by the petitioner is as follows:-
“.......kj;jpapy; ,Uf;ff;Toa nkho Ml;rp
xHpe;jhf ntz;Lk;/ jkpHfj;jpy; ,Uf;fToa ngo
Ml;rpa[k; mj;njhL mHpe;jhfntz;Lk;/ ehd; ngo
vd;W brhy;Yfpwfhuzj;jhy; ,ijahUk; jtwhf
fUjp tplf; TlhJ/ ngo vd;gjw;F yha;ff
; w;wtdhf.
vjw;Fk; gpunah$dk; ,y;yhj epiyapy;
,Uf;fToath;fisj;jhd; ehk; ngo vd;W miHg;gJ cz;L. Mfnt. vjw;Fk; tf;fw;wittifaw;w moikjdj;jpny//////” “...... ehd; brhy;YtJ ke;jphp Fkhhp glj;jpy;
eoj;j bfhs;isf;fhu ghh;j;jpgd; bfhs;is mog;gnj Page No.2 of 13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.27846 of 2018 mtd; bjhHpy; mg;gog;gl;l nfuf;nlhpy; eoj;j me;j fjhehafd; jhd; ,d;iwf;Fnryj;ij rhh;e;jpUf;fToa vlg;ghoia ghh;fpwnghJ ekf;F vy;yhk; njhd;wpf; bfhz;oUf;fpwJ////////” “.......mfpy ,e;jpa mstpy; CHy;
fiugoe;JUf;ff;Toa xU mikr;ruit ,Uf;fpwJ
vd;W brhd;dhy; jkpH; ehl;oy; ,Uf;fToa ,e;j
vlg;gho jiyikapy; ,Uf;fToa ,e;j Ml;rpjhd;
vd;gij///////”
“.........Kjyikr;rhpd; epiy fhd;l;uhf;l; CHypy;
rpf;fp ePjpkd;w tprhuizf;F epw;fntz;oa xU
fl;lhaj;jpw;F mth; te;J ,Uf;fpwhh;/ ,e;j CHy;
Ml;rpapd; jiytuhf vl;ggho gHdpr;rhkp mth;fs;
,Ue;J bfhz;oUf;fpwhh;///////”
“.........CHypd; fjhehafd; ahh; vd;W nfl;lhy;
vlg;gho gHdpr;rhkpjhd; me;j fjhehafDila
Tl;lhspfs; ahh; vd;W nfl;lhy; mj;jid
mikr;rh;fSk;///////”
“mg;gog;gl;lepiyapny rpwe;j CHy; ehafh;fs;
vd;w njh;t[ nghl;o el;j;jpdhy; me;j
mikr;ruitapy; ,Uf;fToa vlg;ghokl;Lky;y.
m';nf ,Uf;f Toa 33 mikr;rh;fSk; me;j
nghl;oapy; ehd; Ke;jp. eP Ke;jp vd;W nghl;o nghl Toa mstpw;F ,d;iwa epiy ,Ue;J bfhz;oUf;fpwJ//////” “//////MfntCHy; Ml;rpapd; jiytuhf Page No.3 of 13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.27846 of 2018 ,Uf;fpd;w vlg;gho gHdpr;rhkpd; CHiyg; gw;wpa Mjhu';fs; vd;bdd;d vd;W nfl;lhy;. fle;j $%iy 16k; njjp mLj;j ehs; 17k; njjp me;j ,uz;L ehl;fs; jkpHfj;jpny gy;ntW gFjpfspy; tUkhd thpj;Jiw mjphhpfs; K:ykhf rpgp$ mjphhpfs;
K:ykhf bua;L ele;jJ/ mjpnyFwpg;ghf icwnt!;
beL”;rhiyj; Jiwapy; xU bghpa xg;ge;j jhuuhf ,Uf;fToa bra;ahJiw ehfuh$d; ,th;fSila tPLfspy; mth;fSila mYtyf';fspy; bua;L ele;J ,Uf;fpwJ/” “//////Md;iyd; blz;lUf;F gjpy; neuoahf bgz;liu bgw;WUf;fpwhh; Kjyikr;ruhf ,Uf;f Toa vlg;gho gHdpr;rhkp mth;fs;//////” “//////jl;o nfl;ftpy;iy Vd; vd;why; mth;fs;
mof;fpw bfhs;isapny xU rjtPjk; ,d;iwf;F bly;ypf;F mth;fs; fg;gk; fl;of;bfhz;oUf;fpwhh;fs;/ mjdhy;jhd; nkho tha;jpwf;fhky; ,Ue;J bfhz;oUf;fpwhh; ,Jjhd; cz;ik///////” “//////,d;Dk; ,';F Ml;rpapny ,Uf;f Toa mikr;rh;fs; tPL g[Fe;J jpUltpy;iyna jtpu kw;w vy;yh jtWfisa[k; ,Jtiuapy; bjhlh;e;J bra;J bfhz;oUf;f Toa bfhLikjhd; ele;J bfhz;oUf;fpwJ//////” “//////f$hdhit bfhs;isaof;f Toa fk;gdpfis ,d;iwf;F vlg;gho gHdpr;rhkp elj;jpf; bfhz;L ,Uf;fpwhh;//////” Page No.4 of 13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.27846 of 2018
3.The petitioner has made the above speech defaming the then Hon'ble Chief Minister of Tamil Nadu. This defamatory speech reveals serious imputation against the then Hon'ble Chief Minister and it was made only with an intention to malign his reputation while discharging his public function and duty. Hence, the Government of Tamil Nadu has accorded sanction to the respondent under Section 199(4) Cr.P.C., vide G.O.Ms.No.756, dated 04.10.2018 for filing the above complaint before the concerned Court. As against the complaint in C.C.No.53 of 2021, this petition has been filed.
4.The learned counsel for the petitioner submitted that the speech of the petitioner was made during the protest held near Salem District Collector Office on 18.09.2018 against the then Hon'ble Chief Minister of Tamil Nadu on 08.02.2021. In the speech, some references have been made, which cannot be termed as defamation. The petitioner as a Leader of Opposition party in democracy, is duty bound to raise objection and criticise the steps taken by the Government which affects general public. It is the democratic duty as enshrined in the Constitution of India. The sanction accorded by the prosecution under Section 199(4) of Cr.P.C., is not proper. The G.O.Ms.No.756, dated 04.10.2018, is passed mechanically, without Page No.5 of 13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.27846 of 2018 application of mind and it is bad in law. The text of imputation found in the above said Government Order if read on a whole, will not amount to any defamation.
5.He further submitted that the respondent failed to satisfy as to how sanction for prosecution was accorded, when the imputation does not pertain to discharge of any official functioning of the then Hon'ble Chief Minister of Tamil Nadu. He further submitted that the respondent is never to be a post man and his office is not the Post office to merely lay a complaint without examining the evidence and material on record. The respondent has not verified whether the requirement of law under Section 199(2) of Cr.P.C., is made out. The trial Court had not independently gone into the materials produced, but merely taken the complaint on file. In view of such fundamental defects, the prosecution cannot be proceeded against the petitioner. Further, in the complaint, it is nowhere stated that due to the imputation caused by the petitioner, the reputation of the then Hon'ble Chief Minister of Tamil Nadu was directly or indirectly lowered the moral or intellect character in estimation of others. The speech was made in good faith and not to defame the intellectual character of the then Hon'ble Chief Minister or any other Ministers. Page No.6 of 13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.27846 of 2018
6.He further submitted that in G.O.Ms.No.756, dated 04.10.2018, the defamatory speech reproduced. On going through the same, nowhere the petitioner had stated anything against the then Chief Minister of Tamil Nadu in particular. The petitioner did not have any intention to harm the Hon'ble Chief Minister's reputation directly or indirectly. From the year 2018, the case before the trial court is kept idle without any progress. The petitioner was the Leader of the Opposition Party and President of Dravida Munnetra Kazhagam and he hails from a respectable family with legacy. He is a political personality, made certain comments, informed the public and others about the sorry State of affairs, which is part of democratic process and it cannot be termed as defamation.
7.The learned State Public Prosecutor submitted that on receipt of the G,O.Ms.No.756, dated 04.10.2018, the respondent has filed a complaint invoking Section 199(4) of Cr.P.C. The petitioner has not denied the speech made on 18.09.2018 during the protest and demonstration held near Salem Collector Office. The petitioner with an intention to malign the reputation of the then Chief Minister of Tamil Nadu made such speech at public place. The Page No.7 of 13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.27846 of 2018 defamatory speech is extracted in the complaint.
8.He further submitted that the Government had issued the G.O.Ms.No.632, dated 10.08.2021, on the recommendation of the Advocate General and Public Prosecutor, High Court of Madras and they have opined that the defamation cases may be withdrawn as per Section 321 of Cr.P.C.
9.Considering the rival submission and on perusal of the materials, it is seen that though the Government has passed the G.O.Ms.No.634, dated 10.08.2021 for withdrawal of the case, the Hon'ble Apex Court on 10.08.2021 in the case of “Ashwini Kumar Upadhyay Vs. Union of India and another in W.P.(C).No.699 of 2016”, has issued certain guidelines to check the misuse of prosecutor's power in withdrawing cases under Section 321 Cr.P.C. Further, the power under Section 321 Cr.P.C., is required to be utilized with utmost good faith to serve the larger public interest and it cannot be used for extraneous and political considerations. The nature and gravity of the offence, its impact upon public life especially where the matters involve public funds and the discharge of a public trust is to be seen. In the case of the sitting former MPs and MLAs, directions has been issued that no prosecution case Page No.8 of 13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.27846 of 2018 shall be withdrawn without the lieu of the High Court.
10.From the perusal of the materials, it is seen that in the case of “K.K.Mishra Vs. The State of Madhya Pradesh and Another reported in CDJ 2019 SC 391”, the Hon'ble Apex Court had drawn guidelines with regard to Section 199(2) Cr.P.C., which provides for a special procedure with regard to initiation of a prosecution for offence of defamation committed against the constitutional functionaries and public servants. It would be beneficial to extract the paragraph Nos.7 and 8 of the above said Judgment:-
“7. Section 199(2) Cr.P.C. provides for a special procedure with regard to initiation of a prosecution for offence of defamation committed against the constitutional functionaries and public servants mentioned therein. However, the offence alleged to have been committed must be in respect of acts/conduct in the discharge of public functions of the concerned functionary or public servant, as may be. The prosecution under Section 199 (2) Cr.P.C. is required to be initiated by the Public Prosecutor on receipt of a previous sanction of the Competent Authority in the State/Central Government under Section 199 (4) of the Code. Such a complaint is required to be filed in a Court of Sessions that is Page No.9 of 13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.27846 of 2018 alone vested with the jurisdiction to hear and try the alleged offence and even without the case being committed to the said court by a subordinate Court. Section 199(2) Cr.P.C. read with section 199(4) Cr.P.C., therefore, envisages a departure from the normal rule of initiation of a complaint before a Magistrate by the affected persons alleging the offence of defamation. The said right, however, is saved even in cases of the category of persons mentioned in sub-section (2) of Section 199 Cr.P.C. by sub-section (6) thereof.
8. The rationale for the departure from the normal rule has been elaborately dealt with by this Court in a judgment of considerable vintage in P.C. Joshi and another vs. The State of Uttar Pradesh1 [paragraph 9]. The core reason which this Court held to be the rationale for the special procedure engrafted by Section 199(2) Cr.P.C. is that the offence of defamation committed against the functionaries mentioned therein is really an offence committed against the State as the same relate to the discharge of public functions by such functionaries. The State, therefore, would be rightly interested in pursuing the prosecution; hence the special provision and the special procedure.
1 AIR 1961 SC 387 P.C. Joshi (supra), however, specifically dealt with the provisions of Section 198B of the Code of Criminal Procedure, 1898 (“old Code”) which are pari materia Page No.10 of 13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.27846 of 2018 with the provisions of Section 199 of the Cr.P.C. (“new Code”).”
11.It is clearly stated that the offence of defamation committed attracting Section 199(2) Cr.P.C., against the functionaries mentioned therein is to be seen, where an offence committed is against the State and the same relate to the discharge of public functions by such functionaries. The State, therefore, would be rightly interested in pursuing the prosecution. Hence the special provision and the special procedure.
12.On perusal of the Government Order and the complaint, it is seen that no such imputation was made in discharge of public function of the then Hon'ble Chief Minister of Tamil Nadu is found. The decision of the Hon'ble Apex Court in the case of K.K.Mishra (cited supra) is consistently followed by this Court in the case of “Karur Murali Vs. Public Prosecutor, Tirunelveli in Crl.O.P.(MD).No.17415 of 2018, Crl.O.P.No.2453 of 2015 and Crl.O.P.No.23619 of 2018.”
13.The petitioner was the Leader of the Opposition party at the time of occurrence and the political speech made during the protest held near Salem Page No.11 of 13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.27846 of 2018 Collector Office on 18.09.2018. The allegations made in the complaint are general in nature and no way pertains to the public functioning of the then Hon'ble Chief Minister of Tamil Nadu. In view of the same, the complaint filed by the respondent before the trial Court is liable to be quashed.
14.Accordingly, this Criminal Original Petition stands allowed and the proceedings in C.C.No.53 of 2018, on the file of the Special Court for Politicians cases (MP & MLA) at Chennai is hereby quashed. Consequently, the connected miscellaneous petitions are closed.
.01.2022
Index : Yes/No
Internet : Yes/No
vv2
To
1.The Special Court for Politicians cases (MP & MLA), Chennai.
2.The Public Prosecutor, Salem District, Salem.
3.The Public Prosecutor, High Court, Madras.
Page No.12 of 13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.27846 of 2018 M.NIRMAL KUMAR, J.
vv2 Crl.O.P.No.27846 of 2018 .01.2022 Page No.13 of 13 https://www.mhc.tn.gov.in/judis