Madras High Court
Karur Murali vs Public Prosecutor on 4 October, 2018
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 04.10.2018 ORDERS RESERVED ON : 01.10.2018 ORDERS PRONOUNCED ON : 04 .10.2018 CORAM THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH CrlOP(MD)Nos.13182 of 2018 and 14715 of 2018 and CrlOP(MD)Nos.5919, 5920 and 6540 of 2018 CrlOP(MD)No.13182 of 2018: Karur Murali ... Petitioner/Accused Vs Public Prosecutor, Tirunelveli. ... Respondent/Complainant PRAYER:- Petition filed under Section 482 of Criminal Procedure Code, to call for the records relating to the complaint in Sessions Case No.120 of 2014 on the file of the III Additional Sessions Judge, Tirunelveli and to quash the same as illegal. For Petitioner :Mr.M.A.Palanisamy For Respondent :Mr.M.Chandrasekaran, Additional Public Prosecutor CrlOP(MD)No.14715 of 2018: 1.Dhanapal 2.Saathrak ... Petitioners/Accused Vs Public Prosecutor, Thoothukudi District, Thoothukudi. ... Respondent/Complainant PRAYER:- Petition filed under Section 482 of Criminal Procedure Code, call for the records pertaining to the case special case No.3 of 2013 on the file of the Learned Principal Sessions Judge Court, Thoothukudi dated 03.08.2013 and quash the same. For Petitioner :Mr.S.Selvakumar For Respondent :Mr.M.Chandrasekaran, Additional Public Prosecutor :COMMON ORDER
An interesting question of law has arisen in these petitions, which have been filed to quash the proceedings initiated against the petitioners for the alleged offence under Section 500 of IPC.
2.In both the cases, a criminal complaint has been filed by the Public Prosecutor for the alleged defamatory speech made against the then Hon'ble Chief Minister of Tamil Nadu, in respect of her conduct in discharge of her public function.
3.The issues, which arise for consideration in these petitions are as follows:
(A) Whether a criminal complaint filed by the Public Prosecutor on behalf of the Hon'ble Chief Minister under Section 199(2) of CrPC can be continued even after the person concerned ceases to hold the post at a later point of time?
(B)Whether the Public Prosecutor can continue to prosecute a criminal Complaint even after the death of the erstwhile Hon'ble Chief Minister without any person impleading himself or herself as the legal heir of the deceased Hon'ble Chief Minister, in order to continue the proceedings.?
(C)Whether the allegations made in the complaint against the erstwhile Hon'ble Chief Minister pertains to and is connected with the discharge of public function / official duty or the allegations are personal in nature and thereby Public prosecutor could not have maintained the criminal prosecution instituted under Section 199(2) of CrPC alleging commission of offence under Section 499 of 500 of IPC?
4.For the purpose of answering the first issue, it is important to extract the provision under Section 199(2) of CrPC, which is as follows:
? 199. Prosecution for defamation:
(1) ... ... ...
(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.?
5.In cases of ordinary person, a complaint should be made by the person aggrieved, and in other classes of cases, that is to say, in cases of high dignitaries where the defamation is in respect of conduct in discharge of public function, the Court of Session can take cognizance upon the complaint in writing by the Public Prosecutor. It is important to note that the ?person aggrieved? need not necessarily be the ?person defamed?.
6.It will be relevant to extract the judgment of the Hon'ble Supreme Court of India, in K.K.Mishra Vs. The State of Madhya Pradesh & Another, reported in CDJ 2018 SC 391 with regard to the the intention behind providing the special privilege under Section 199(2) of CrPC, which is as follows:
7. Section 199(2) Cr.P.C. provides for aspecial 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 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 Pradesh 1 [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.
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 with the provisions of Section 199 of the Cr.P.C. (?new Code?).
7.It is therefore, clear from the above observations made by the Hon'ble Supreme Court that core reason for providing special procedure engrafted under Section 199(2) of CrPC is that the offence of defamation committed against public functionaries mentioned therein is really an offence committed against the State, as the same relates to the discharge of public function by such functionaries. Therefore, it becomes the responsibility of the State to pursue with the prosecution. In other words, two important criteria determine the maintainability of the criminal complaint filed for defamation through public prosecutor under Section 199(2) of CrPC viz (a) the holding of an Office and (b) a direct and reasonable nexus between the nature of the duty cast upon the public servants and the defamatory allegations made in respect of the same. The purport is on the office/post and not on the person.
8.In view of the same, this Court is of the considered view that even if a person ceases to hold the Office/Post at a later point of time, the prosecution that was launched by the Public Prosecutor for the offence of defamation under Section 199(2) of CrPC, shall continue since the alleged defamatory statement is ?Office / post centric? and not ?person centric?, which makes it duty bound on the part of the State to continue with the prosecution of the complaint, as the offence is considered to have been committed against the State. The first issue is answered accordingly.
9.Now this Court will proceed to answer the second issue. The Hon'ble Chief Minister on behalf of whom, the criminal complaint was filed, died on 05.12.2016. Therefore, the next question that arises for consideration is, whether the complaint filed on Her behalf for the alleged defamation can continue to be prosecuted, by the State through the Public Prosecutor.
10.The Latin maxim ?Actio personalis moritur cum persona? comes to the mind of this Court, which means the personal right of action dies with the person concerned. This maxim will apply only in actions that are purely relatable to private or personal character of the person.
11.It will be useful to refer to the judgment of the Kerala High Court in KM.Hasan Vs. Hanisabi, made in C.R.P. No.927 of 2001, dated 2010.2008 and the relevant portions of the judgment are extracted hereunder:
1.The question raised in this revision is whether the restriction contained in Section 199 of the Code of Criminal Procedure (for short, "the Code") on the right of a person to prefer a complaint is applicable to the person who came forward to continue the proceedings on the death of the original complainant. Learned counsel for the revision petitioners contended that the person willing to continue the proceedings after the death of the original complainant should himself be a 'person aggrieved' while according to the learned counsel for respondent, the ban under Section 199 of the Code is applicable only in the matter of taking cognisance.3. Section 199 of the Code uses the words "some person aggrieved". So far as the words "some person aggrieved" are concerned, there cannot be inflexible rule that those words limit the right to make a complaint for the offence of defamation to the person actually defamed. The words in Sec.199(1) of the Code cannot be understood as having the narrow meaning that none other than the person defamed could prefer a complaint. Whether a person is aggrieved by the imputations depends on the facts and circumstances of each case. For instance, if an imputation of immorality is attributed to a girl, the reputation of her father would also be at stake and hence, the father of the girl concerned can also be said to be a "person aggrieved". The object of incorporating the words "some person aggrieved" is only to limit the right to file complaint for the offence of defamation to the person who suffered the injury.
4. The question for consideration and decision is whether such restriction is applicable to a person who comes forward willing to continue the proceedings on the death of the complainant at whose instance cognizance of the offence has been taken. The Chief Court of Punjab and Lahore in Ishar Das v. Emperor (1908 (7) Crl. L.J. 290, held that the maxim "actio personalis moritur cum persona (i.e. a personal right of action dies with the person) is applicable in the matter of prosecution for defamation since that is essentially a personal action and institution of the proceedings depended on the temperament of the person defamed. Dissenting from that view Mosely, J., in U. Tin Maung v. The King (AIR 1941 Rangoon 202) held that the words "some person aggrieved" occurring in Sec.198 of the Code (as it then stood) only limited the court's power of initial cognizance. Once the court has seizin of the case, there is nothing to prevent the court from proceeding with it. A learned Single Judge of Madhya Pradesh High Court followed that view in Nathu Jeorakhan v. Sheopal Kuppa (AIR 1963 MP 47). The Apex Court considered the issue though in relation to the offences punishable under Sections 493 and 496 of the Penal Code in Ashwin v. State of Maharashtra (AIR 1967 SC 983) and held that the bar under Sect.198 of the Code is removed when the aggrieved person files a complaint, and that his presence throughout trial is not necessary. Though the court cannot substitute a new complainant in the place of a deceased complainant, it has the power to authorise the conduct of the prosecution by any person. A learned Single Judge of the Allahabad High Court in Abdul Hakim v. State (1973 Crl.L.J.492) took the view that a proper and fit person could be permitted to continue the proceedings on the death of complainant in a prosecution for the offence of defamation.
9.The maxim, "actio personalis moritur cum persona" does not apply to criminal proceedings for the offence of defamation. Revision Petition is dismissed Criminal Miscellaneous Petition No.4396 of 2001 shall stand dismissed.?
12.The above judgment gives a clear indication that the maxim referred herein above will not apply to the criminal proceedings for the offence of defamation, since the expression used is the ?person aggrieved? and not a ?person defamed?. Therefore, it will be possible for a person to continue with the defamation proceedings inspite of the death of the original complainant, if the person is able to satisfy the expression ?person aggrieved?.
13.In this case, the defamation in question does not pertain to a private or personal character of the former Chief Minister, it pertains to her conduct in the discharge of her public functions. The finding that was given by this Court with regard to the first issue will have a bearing insofar as the second issue is concerned. This Court has already held that the prosecution that was launched by the Public Prosecutor for the offence of defamation, under Section 199(2) of CrPC, shall continue since the alleged defamatory statement is ?Office / post centric? and not ?person centric?. Therefore, the death of the former Hon'ble Chief Minister will not in any way result in abatement of the present complaint.
14.In view of the same, this Court is of the considered view that the criminal complaint did not abate on the death of the former Hon'ble Chief Minister and the State is duty bound to continue with the proceedings through the Public Prosecutor. The second issue is answered accordingly.
15.The allegations that are found in the complaint, which is challenged in CrlOP(MD)No.14715 of 2018, is completely personal in nature. It is of course, vulgar and unbecoming of a public functionary to comment upon the Hon'ble Chief Minister in this fashion. But, however, these statements do not have a direct bearing on the public function discharged by her.
16.It is relevant to rely upon the following judgments in this regard.
(a) VPR Ilamparuthi Vs. Public Prosecutor in CrlOP(MD)No.22263 of 2013, dated 18.06.2018 and
(b) R.Avudayappan Vs. Muthukaruppan, Public Prosecutor, reported in 2018-2L.W.(crl)24
17. The relevant portions of the judgment in VPR Ilamparuthi Vs. Public Prosecutor in CrlOP(MD)No.22263 of 2013, dated 18.06.2018 are extracted hereunder:
?The Constitution Bench of the Hon'ble Supreme Court in the decision reported in CDJ 2018 SC 391 (K.K.Mishra vs. the State of Madhya Pradesh) had categorically held that 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 the acts/conduct in the discharge of public functions of the concerned functionary or public servant, as the case may be. The learned Additional Public Prosecutor also contended that it would not be open to this Court to see if the defamatory content has nexus with the public function or not. He wanted to this Court to appreciate the limited scope of Section 482 Cr.P.C.
8.When confronted with the aforesaid enunciation of the legal position by the Hon''ble Supreme Court, the learned Additional Public Prosecutor submitted that it would not be open to this Court to analyze and dissect the complaint to see whether the defamatory attack pertained to the discharge of public function or not. According to him, that would fall outside the scope of the power of this Court under Section 482 of Cr.PC. He placed reliance on the decision of the Hon''ble Supreme Court reported in (2015) 8 SCC 239 (Rajdeep Sardesai vs. State of Andhra Pradesh).
Particularly paragraph Nos.34 and 40 thereof.
9.This Court is unable to agree. It was authoritatively laid down by Hon'ble Supreme Court in the decision reported in 1992 Supp (1) SCC 335 (State Of Haryana And Ors vs Ch. Bhajan Lal And Ors) that the High Courtexercising its inherent power under Section 482 of Cr.PC is entitled to go through the entire averments in the complaint. If the Court comes to the conclusion that taking all the averments as a whole, if no offence is made out, the Court would be justified in quashing the prosecution. Therefore,this Court is certainly entitled to go through the defamatory statements said to have been made by the petitioner/accused and see if it has any bearing on the discharge of the public functions of the high dignitary and public servant defamed.
10.The learned counsel appearing for the petitioner pointed out that such an approach was adopted by the Hon'ble Supreme Court in the decision reported in CDJ 2018 SC 391 (K.K.Mishra vs. the State of Madhya Pradesh) referred to earlier. Paragraph Nos.7, 10 and 11 of the aforesaid decision are particularly relevant and they read as under :
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 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.
10.The problem of identification and correlation of the acts referred to in an allegedly defamatory statement and those connected with the of public functions/official duties by the holder of the public office is, by no means, an easy task. The sanction contemplated under Section 199(4) Cr.P.C though in the opposite context i.e to prosecute an offender for offences committed against a public servant may have to be understood by reference to the sanction contemplated by Section 197 Cr.P.C which deals with sanction for prosecution of a public servant. There is fair amount of similarity between the conditions precedent necessary for accord of sanction in both cases though the context may be different, indeed, the opposite. While dealing with requirement of sanction under Section 197 Cr.P.C this Court in Urmila Devi Vs.Yudhvir Singh (2013) 15 SCC 624 had taken the following view which may have some relevance to the present case.
11.If the allegedly defamatory statements, already extracted, in of which sanction has been accorded to the Public Prosecutor to file the complaint against the appellant under Section 199(2) Cr.P.C by the order dated 24th June, 2014 are to be carefully looked into, according to us, none of the said statements, even if admitted to have been made by the appellant, can be said to have any reasonable connection with the discharge of public duties by or the office of the Hon'ble Chief Minister. The appointment of persons from the area/place to which the wife of the Hon'ble Chief Minister belongs and the making of phone calls by the relatives of the Hon'ble Chief Minister have no reasonable nexus with the discharge of public duties by or the office of the Hon'ble Chief Minister. Such statements may be defamatory but then in the absence of a nexus between the same and the discharge of public duties of the office, the remedy under Section 199(2) and 199(4) Cr.P.C will not be available. It is the remedy saved by the provisions of sub-section(6) of Section -199 Cr.P.C i.e a complaint by the Hon'ble Chief Minister before the ordinary Court ie. the Court of Magistrate which would be available and could have been resorted to?.
11.This Court went through the defamatory words said to have been uttered by the petitioner/accused. No doubt they are per se defamatory. But then, they do not in any way pertain to the public function discharged by the then Hon'ble Chief Minister. It is of course saddening to note the low and vulgar of level practical discourse. The party to which the petitioner belongs is directly opposed to the party headed by the person defamed in this case. Therefore, while attacking political opponent, who happened to be the Chief Minister of the State during the relevant time, reckless and vulgar statements have been employed. But, they do not have a direct bearing on the public function discharged by her. Therefore, this Court is of the view that in a case of this nature, the office of the Public Prosecutor cannot be used. In such cases, the person concerned must avail the remedy set out in law to a person personally aggrieved. The Public Prosecutor cannot institute a private complaint taking cudgels on behalf of the person defamed.
18.The relevant portions of the judgment in R.Avudayappan Vs. Muthukaruppan, Public Prosecutor, reported in 2018-2L.W.(crl)24, are extracted as hereunder:
6.The Constitution Bench of the Hon'ble Supreme Court in the decision reported in CDJ 2018 SC 391 (K.K.Mishra vs. the State of Madhya Pradesh) had categorically held that 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 the acts/conduct in the discharge of public functions of the concerned functionary or public servant, as the case may be.
7.Thus, in view of the aforesaid ratio, the distinction sought to be drawn by Mr.K.K.Ramakrishnan becomes irrelevant. The requirement that the offence in question must pertain to discharge of public function would apply not only in the case of public servant but also in the case of high dignitary referred to in the above said provision.
8.This Court went through the contents of the complaint in question.
A reading of the same would reveal that the petitioner herein defamed the then Hon'ble Chief Minister personally and there is not one word pertaining to her public function. In this view of the matter, the impugned proceedings stand quashed. Accordingly, the Criminal Original Petition is allowed. Consequently, the connected miscellaneous petition is closed.
19.In view of the above, this Court is of the considered view that the allegations made in the complaint are purely personal in nature and is not the one pertaining to the public function of the Hon'ble Chief Minister. In the result, the impugned proceedings in special case No.3 of 2013 on the file of the Learned Principal Sessions Judge Court, Thoothukudi shall stand quashed and the petition in CrlOP(MD)No.14715 of 2018 is allowed.
20.The allegations that are found in the complaint, which is challenged in CrlOP(MD)No.13182 of 2018, is clearly relatable to the behaviour or the conduct of the former Chief Minister, in discharge of her public function. The defamatory statement that has been made against the former Chief Minister cannot be disassociated from the discharge of the public function performed by her. In other words, very disparaging remarks and comments which are sickeningly of low taste has been made against the former Chief Minister with regard to the acts performed by the Chief Minister, which has reasonable nexus with the discharge of the public duties by or the Office of the Hon'ble Chief Minster.
21.In view of the same, this Court will not exercise its jurisdiction under Section 482 CrPC to quash the proceedings in SC No.120 of 2014 pending on the file of the III Additional Sessions Judge, Tirunelveli.
22. In view of the findings rendered by this Court for the first and second issues, the Public Prosecutor is entitled to prosecute the criminal complaint further and the Court below is directed to complete the proceedings as expeditiously as possible.
23.In the result, the CrlOP(MD)No.13182 of 2018 shall stand dismissed. Consequently, connected miscellaneous petitions are closed.
To
1.The Principal Sessions Judge Court, Thoothukudi.
2.Additional Sessions Judge, Tirunelveli.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.