Madras High Court
R.S.Bharathi vs State Rep By Public Prosecutor on 11 November, 2021
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.O.P(MD).No.17932 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 22.10.2021
PRONOUNCED ON : 11.11.2021
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P(MD).No.17932 of 2016 and
Crl.M.P(MD).No.8930 of 2016
R.S.Bharathi ... Petitioner
Vs.
State rep by Public Prosecutor,
District and Sessions Court,
Tiruchirappalli. ... Respondent
PRAYER: Criminal Original Petition is filed under Section 482 of the
Code of Criminal Procedure, to call for the records relating to C.C.No.1
of 2016 pending on the file of the learned Principal Sessions Judge,
Tiruchirapalli and quash the same.
For Petitioner : Mr.M.S.Ravi
For Respondent : Mr.Hasan Mohamed Jinnah,
State Public Prosecutor Assisted by
Mr.A.Damodaran,
Additional Public Prosecutor
*****
ORDER
This Criminal Original Petition has beenf filed to quash the proceedings in C.C.No.1 of 2016 on the file of the Principal District and Sessions Judge, Tiruchirapalli/trial Court. Page No.1 of 11 https://www.mhc.tn.gov.in/judis Crl.O.P(MD).No.17932 of 2016
2.The learned counsel for the petitioner submitted that the petitioner is the Secretary, Legal Wing of Dravida Munnetra Kazhagam and a Member of the Parliament. The then ruling party alleged that the petitioner defamed the former Chief Minister of Tamil Nadu in the public meeting held on 09.01.2016. Hence, the respondent lodged a complaint against the petitioner before the trial Court. He further submitted that if the entire allegation in the complaint is taken on its face, it will not constitute the offence of defamation to the office of the Hon'ble Chief Minister and its functioning. The complaint is not maintainable, since the requirement contemplated under Section 199(2) Cr.P.C., is not complied with. The Government Order passed by the Public (Law and Order-H) Department in G.O.Ms.No.599, dated 27.06.2021 is without any particulars and there is nothing to show that the Government Order has been passed after application of mind. There is nothing in the complaint to show the imputation made by the petitioner pertains to the discharge of public function of the then Hon'ble Chief Minister. The learned counsel further submitted that the sanction accorded by the Page No.2 of 11 https://www.mhc.tn.gov.in/judis Crl.O.P(MD).No.17932 of 2016 Government is nothing but malafide and with ulterior reason, without application of mind. The complaint taken on file is an attempt to interfere with the fundamental right of the petitioner under Article 19(1)
(a) and Article 21 of the Constitution of India and taking cognizance of the complaint is nothing but interference with the freedom of speech, which is one of the most valuable rights guaranteed to the citizen in a democratic state.
3.The learned counsel further submitted that free speech is the foundation of a democratic society and free exchange of ideas, dissemination of information without restraint, dissemination of knowledge, airing of different viewpoints are guaranteed fundamental rights in a free society. Restraints on this right have to be cautiously monitored by the Courts and Article 19(2) of the Constitution of India spells out the various reasonable restrictions on which this right to free speech and expression can be curtailed. He further submitted that the trial Court failed to see that criticism is the essence of democracy. Therefore, the cognizance taken against the petitioner is illegal. The petitioners belongs to Dravida Munnetra Kazhagam political party which Page No.3 of 11 https://www.mhc.tn.gov.in/judis Crl.O.P(MD).No.17932 of 2016 is the main opponent to the then ruling party in the State of Tamil Nadu. The then Government misused its power under Section 199(2) Cr.P.C., and filed the complaint against the opposition parties for the offence punishable under Section 500 IPC., with a view to scuttle and curtain the freedom of speech and fair criticisms.
4.He further submitted that from the year 2016, the case before the trial Court is kept ideal and without any progress. The petitioner is the Member of Rajya Sabha, a political personality. The petitioner addressed a public meeting held on 09.01.2016 on behalf of his party criticising the manner in which Sembarambakkam lake was opened without taking precaution and proper warning to the public. Due to which, the entire Chennai city was flooded. This is only fair criticism on the manner in which the Government acted upon and nothing related to the official work of the then Chief Minister and other Ministers. Hence, in the complaint, no where the official function of the officers was commented upon.
Page No.4 of 11 https://www.mhc.tn.gov.in/judis Crl.O.P(MD).No.17932 of 2016
5.The learned State Public Prosecutor appearing for the respondent submitted that on receipt of G.O.Ms.No.599, dated 27.06.2016, the respondent/City Public Prosecutor filed a complaint invoking Section 199(2) of Cr.P.C. The petitioner not denied addressing the press meet held on 09.01.2016, which was telecasted and widely publicized in social media. In the press meet, the petitioner specifically made serious imputations against the then Chief Minister, Government of Tamil Nadu and other dignitaries. The transcripted defamatory portion of the press meet is produced in the complaint.
6.He further submitted that the Government had passed G.O.Ms.No.664, Public (Law and Order-H) Department, dated 10.08.2021, on the recommendation of the Advocate General and Public Prosecutor of High Court of Madras and they have opined that the defamation cases may be withdrawn as per Section 321 of Cr.P.C.
7.Considering the rival submission and on perusal of the materials, it is seen that though the Government has passed G.O.Ms.No.664, dated 10.08.2021, for withdrawal of the case, in view of the orders passed by Page No.5 of 11 https://www.mhc.tn.gov.in/judis Crl.O.P(MD).No.17932 of 2016 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”, wherein certain guidelines issued 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 and its impact upon public life especially where the matters involve public funds and the discharge of a public trust to be seen. In the case of the sitting former MPs and MLAs, directions issued that no prosecution case shall be withdrawn without the lieu of the High Court.
8.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 Apex Court had drawn the guidelines with regard to the Section 199(2) Cr.P.C., which provides for a special procedure with regard to initiation of 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 Page No.6 of 11 https://www.mhc.tn.gov.in/judis Crl.O.P(MD).No.17932 of 2016 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 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 Page No.7 of 11 https://www.mhc.tn.gov.in/judis Crl.O.P(MD).No.17932 of 2016 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 with the provisions of Section 199 of the Cr.P.C. (“new Code”).”
9.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 relates to the discharge of public functions by such functionaries. The State, therefore, would be rightly interested in Page No.8 of 11 https://www.mhc.tn.gov.in/judis Crl.O.P(MD).No.17932 of 2016 pursuing the prosecution; hence the special provision and the special procedure.
10.On perusal of the Government Order and the complaint, it is seen that no such imputation made in discharge of public function of the Ministers is found. The decision of the 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.”
11.The petitioner belongs to the opposition party at the time of occurrence and some political statements have been made. The allegations made in the complaint are general in nature and no way pertains to the public functioning of the Hon'ble Chief Minister and Minsiters In view of the same, the complaint filed by the respondent against the petitioner before the trial Court is liable to be quashed.
12.Accordingly, this Criminal Original Petition stands allowed and Page No.9 of 11 https://www.mhc.tn.gov.in/judis Crl.O.P(MD).No.17932 of 2016 the proceedings in C.C.No.1 of 2016, on the file of the Principal District and Sessions Judge, Tiruchirapalli is hereby quashed. Consequently, the connected miscellaneous petition is closed.
11.11.2021 Speaking order/Non-speaking order Index: Yes/No Internet: Yes/No vv2 To
1.The Principal District and Sessions Court, Tiruchirapalli.
2.The Public Prosecutor, District and Sessions Court, Tiruchirappalli.
3.The Public Prosecutor, Madras High Court.
M.NIRMAL KUMAR, J.
Page No.10 of 11 https://www.mhc.tn.gov.in/judis Crl.O.P(MD).No.17932 of 2016 vv2 PRE-DELIVERY ORDER IN Crl.O.P(MD).No.17932 of 2016 11.11.2021 Page No.11 of 11 https://www.mhc.tn.gov.in/judis