Madras High Court
E.V.K.S.Elangovan vs The Public Prosecutor on 7 July, 2022
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
Crl. O.P. No. 8416 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 7/7/2022
CORAM
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl. O.P. No.8416 of 2019
and
Crl.M.P.No.4462 of 2019
E.V.K.S.Elangovan ... Petitioner
Vs
The Public Prosecutor
representing the Government of Tamil Nadu ... Respondent
PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C. to
call for the records in C.C.No.3 of 2019, pending on the file of the Hon'ble
Special Court for trial of Criminal Cases related to Elected Mps and MLAs at
Chennai and quash the same.
For Petitioner ... Mr.Masilamani
Senior Counsel
for Mr.R.Chellamuthu
For respondent ... Mr.A.Gokulakrishnan
Additional Public Prosecutor
Page No:1/11
https://www.mhc.tn.gov.in/judis
Crl. O.P. No. 8416 of 2019
ORDER
This Criminal Original Petition has been filed to quash C.C.No.3 of 2019, pending on the file of the Hon'ble Special Court for trial of Criminal Cases related to Elected Mps and MLAs at Chennai, for an offence under Section 499 and punishable under Section 509 of the Indian Penal Code.
2. The case of the prosecution is that in a press meet held at Samayapuram, on 26/8/2018, the petitioner had made a defamatory accusation against the Hon'ble Chief Minister of Tamil Nadu and the same was published in the Tamil Daily “Malai Malar” on the same day.
3. Heard Mr.Masilamani, learned Senior Counsel for Mr.R.Chellamuthu, for the petitioner and Mr.A.Gokulakrishnan, learned Additional Public Prosecutor for the respondent.
4. It is the contention of the learned counsel appearing for the petitioner that the alleged statement noway amounts to defamation as against the then Chief minister affecting the public function. At the most, it amounts only a Page No:2/11 https://www.mhc.tn.gov.in/judis Crl. O.P. No. 8416 of 2019 criticism for which the petitioner cannot be prosecuted under Section 500 of I.P.C. Further, it is also stated that G.O.Ms.No.664, issued by the Public (Law and Order) Department, dated 4/9/2018 according sanction to prosecute the petitioner.
5. The learned Public Prosecutor submitted that whether the statement is one of the defamative imputation caused damage to the public authorities or State is a matter of trial, cannot be decided at this stage in a quash petition.
6. Already, this Court in several cases, extensively examined and analyzed the scope of Section 199 (2) Code of Criminal Procedure along with Sec.199 (6), Exceptions under Section 499, penal provisions under Sec. 500, 501 and 502 of I.P.C., Procedure for prosecuting the criminal defamation offences prescribed under Section 199 of Cr.P.C., the law of Criminal defamation, Role of the Public Prosecutor and his duties and Duties of the Magistrate/ Sessions Judge while taking cognizance of a private complaint, Freedom of expression, etc.
7. Be that as it may. It is also submitted that to constitute an offence Page No:3/11 https://www.mhc.tn.gov.in/judis Crl. O.P. No. 8416 of 2019 under Section 500 of I.P.C., against the constitutional functionaries or the Minister of State, it has to be established by the prosecution that the alleged imputation made in respect of the conduct of a public servant/public functionary in discharge of his/her public functions and the public function stands on a different footing than the private activities of a public servant. If the statement is made on mere criticism then it is a right guaranteed under Article 21 of the Constitution of India.
8. It is also to be noted that in a catena of judgments reported in [(2015)8 SCC 239 RAJDEEP SARDESAI VS. STATE OF ANDHRA PRADESH AND OTHERS] and [1993 Supp (1) SCC 499, the Apex Court held that judicial process should not be an instrument of oppression or needless harassment. In PEPSI FOODS LIMITED VS. SPECIAL JUDICIAL MAGISTRATE REPORTED IN (1998) 5 SCC 749, the Hon'ble Supreme Court has held that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course. The so called imputation allegedly made should have reasonable nexus with discharge of public duties. Therefore, mere criticism without any intent on the part of the petitioner and/or without any nexus with discharge of public duties will not come under the Page No:4/11 https://www.mhc.tn.gov.in/judis Crl. O.P. No. 8416 of 2019 purview of offence punishable under Sec.500 of I.P.C.
9. In a judgment reported in (2018)6 SCC 676 [K.K.MISHRA VS. THE STATE OF MADHYA PRADESH AND OTHERS the Apex Court held that the alleged statements have no reasonable nexus with the discharge of public duties by or office of the Chief Minister. Such statements may be defamatory but in absence of a nexus between the same and the discharge of public duties or office of the Chief Minister, remedy under section 199(2) and 199(4) Cr.P.C. will not be available. It is the remedy saved by the provisions of subsection (6) of section 199 Cr.P.C. i.e. a complaint by the Chief minister before the ordinary court i.e. the court of a Magistrate which would be available and could have been resorted to.
10. In ASHWINI KUMAR VS. SUBASH GOYAL reported in MANU/PH/1170/2013 while dealing with a case of Criminal defamation under section 499 IPC quashed the complaint and held as follows:
“ The attempt to curb the freedom of speech, the freedom of press and the power of the pen Page No:5/11 https://www.mhc.tn.gov.in/judis Crl. O.P. No. 8416 of 2019 therefore, needs to be discouraged and rather, complaints such as these ordinarily should be viewed as attempts of a prudish mind of the complainant’s orchestrator showing complete subversiveness and servility of character, and displaying an aversion to criticism over preference to a parroted existence.( Para 19).”
11. Similarly in KARTAR SINGH VS. STATE OF PUNJAB reported IN A.I.R. 1956 SC 541 wherein the Apex Court held that vulgar abuses made against the Transport Minister and the Chief Minister will not amount to defamation of the State but may amount only to the defamation of the public functionaries concerned and therefore, they are only personal in nature. The facts of that case are that the accused was charged under section 9 of the Punjab security of the State Act, 1953 for making vulgar abuses against the Transport Minister and the Chief Minister. The Hon’ble Supreme Court even though finding that the accused statements amounted to defamation against the Transport Minister and the Chief Minister however held that the vulgar abuses do not undermine the security of the state or friendly relations with foreign states nor did they amount to contempt of court or defamation prejudicial to Page No:6/11 https://www.mhc.tn.gov.in/judis Crl. O.P. No. 8416 of 2019 overthrow the state. The Apex court held that the slogans were certainly defamatory of the Transport Minister and the Chief Minister, but the redress of that grievance was personal to these individuals and the state authorities could not take the cudgels on their behalf.
12. The learned Public Prosecutor relied on the judgment reported in (2015) 8 SCC 238 [RAJDEEP SARDESAI VS. STATE OF ANDHRA PRADESH AND OTHERS] wherein the Apex Court has held as follows:
''33. Further, the contention urged by the appellants' counsel placing reliance upon the aforesaid judgments that the act of the second respondent allegedly aiding Gujarat Police Officers to facilitate taking Sohrabuddin from Bidar to Ahmedabad, has nothing to do with the discharge of his public functions, hence, the said statement in the news item allegedly defaming the second respondent being telecast and published in electronic and print media does not attract Section 199 CrPC. Therefore, it is contended on behalf of the appellants that the Page No:7/11 https://www.mhc.tn.gov.in/judis Crl. O.P. No. 8416 of 2019 sanction accorded by the State Government is beyond its jurisdiction as the said act of aiding Gujarat Police is an independent act and it is not in relation to the discharge of public functions of the second respondent though he, at that relevant point of time, was discharging his public functions. This contention on behalf of the appellants is also wholly untenable in law, for the reason that determining the question on whether or not the second respondent while aiding Gujarat Police at that point of time was in the capacity of his official discharge of his public functions or otherwise, is to be determined by regular trial after examining the facts, circumstances and evidence on record.
Absolutely, there is no dispute on the above legal position.
13. To take cognizance of the complaint under Section 199(2) of Cr.P.C., the so called defamation should be directly attributed to a person in discharge of his/her public functions and only in such circumstances, Sub Section 2 of Section 199 of Code of Criminal Procedure will stand attracted. If the said imputation apparently made against the pubic functionaries, in Page No:8/11 https://www.mhc.tn.gov.in/judis Crl. O.P. No. 8416 of 2019 discharge of his/her public function, have no reasonable nexus with the discharge of public duties, the remedy available under Section 199(6) of Cr.P.C. before the Magistrate by making private complaint,and remedy under Section 199(2) and 199(4) will not be available. Otherwise, if any criticism or defamation in the nature of personal capacity and such defamation have no nexus with discharge of his/her official function of the State, complaint cannot be made by a Public Prosecutor merely on the basis of G.O.
14. In view of the foregoing reasons and the decisions cited supra, the complaint in C.C.No.3 of 2019 on the file of the Special Court for Trial of Criminal Cases related to Mps and MLAs at Chennai, is liable to be quashed.
15. Accordingly, Criminal Original petition is allowed and the complaint in C.C.No.3 of 2019 on the file of the Special Court for Trial of Criminal Cases related to Mps and MLAs at Chennai, is quashed. Consequently, the connected Criminal Miscellaneous Petition is closed.
16. Before parting, though the complaint has been quashed on the basis of well settled position of law, it is also to be recorded that persons in Page No:9/11 https://www.mhc.tn.gov.in/judis Crl. O.P. No. 8416 of 2019 public life and the leaders of various political parties should restrain themselves from making serious allegations or criticism against the constitutional functionaries, since leaders of political parties have huge followers and the same will have serious impact on the followers also and the followers also blindly follow the path of their leaders. Merely because one has right of freedom of speech they cannot make any such allegation though it may not attract penal consequences or may not amounts to criminal defamation. Using scurrilous allegations, using harsh words, which is in the nature of serious criticism against particular individual also to be avoided. Therefore, this Court is of the view that irrespective of the political affiliation, when a person raised to the level of leader of a political party should show atmost respect to the others in public life. Of course, every citizen of a democratic country have a freedom of speech, but at the same time such criticism should not exceed affecting the sentiments of others also. The leaders of political parties should show their statesmanship and quality and healthy politics rather than accusing others by using vituperated language in political platform.
7/7/2022 Page No:10/11 https://www.mhc.tn.gov.in/judis Crl. O.P. No. 8416 of 2019 Index : Yes / No Internet: Yes Speaking/non speaking order mvs.
To
1. The Special Court for trial of Criminal Cases related to Elected Mps and MLAs at Chennai
2. The Public Prosecutor Madras High Court.
Page No:11/11 https://www.mhc.tn.gov.in/judis Crl. O.P. No. 8416 of 2019 N. SATHISH KUMAR, J mvs.
Crl. O.P. No. 8416 of 2019
7/7/2022 Page No:12/11 https://www.mhc.tn.gov.in/judis