Madras High Court
Thiru.M.K.Stalin vs The Public Prosecutor on 26 February, 2021
Crl.O.P(MD).No.6312 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 08.10.2021
PRONOUNCED ON : 21.01.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P(MD).No.6312 of 2021 and
Crl.M.P(MD).Nos.3615 & 3616 of 2021
Thiru.M.K.Stalin, M.L.A., M/a. 68 yrs.,
President, DMK Party, Opposition Leader,
25/9, Chittarajan Road,
Cenotap, IInd Street,
Chennai – 600 018. ... Petitioner
Vs.
The Public Prosecutor,
Sivagangai District,
Sivagangai. ... Respondent
PRAYER: Criminal Original Petition is filed under Section 482 of the Code of
Criminal Procedure, to call for the records and QUASH all the proceedings in
Spl.C.C.No.12 of 2021 on the file of the learned Principal and Sessions Judge,
Sivagangai.
For Petitioner : Mr.S.Senthilmurugan
For Respondent : Mr.Hasan Mohamed Jinnah,
State Public Prosecutor assisted by
Mr.A.Damodaran,
Additional Public Prosecutor
*****
ORDER
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Crl.O.P(MD).No.6312 of 2021
This Criminal Original Petition has been filed to quash the proceedings
in C.C.No.12 of 2021, on the file of the Principal District Court, Sivagangai.
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 made public speech in Grama Sabha
meeting held at N.Vairavanpatty, Kundrakudi, Sivagangai District against the
then Hon'ble Chief Minister of Tamil Nadu on 08.02.2021. The public speech
made by the petitioner is as follows:-
“/////// ,J nfhkhsp Ml;rp. Cjhhpj;jdkhd
Ml;rp. fbyf;c&d;. fbug;rd;. fkpc&d; Ml;rp”
“//////// jkpHf tptrhapfSf;F kl;Lky;y ,e;jpa
tptrhapfspd; thapy; tpc&j;ij Cw;wpa
tpc&f;fpUkpjhd; gHdpr;rhkp/////”
“////// ,j;jifa kz; Fjpiuia ek;gp mjpKf
muR ,dp gazk; bra;a KoahJ/ ,j;jifa
cjthf;fiufis ek;gp fl;rp elj;j KoahJ/
Ml;rp elj;j KoahJ/ ,e;j fHprilfSf;F
Kw;Wg;g[ss
; p itf;fpw njh;jy;////////”
3.The petitioner has made the above public speech defaming the then
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Crl.O.P(MD).No.6312 of 2021
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(2) Cr.P.C., vide G.O.Ms.No.132,
dated 26.02.2021 for filing the above complaint before the concerned Court.
As against the complaint in C.C.No.12 of 2021, this petition has been filed.
4.The learned counsel for the petitioner submitted that the speech of the
petitioner, who was the President of Dravida Munnetra Kazhagam, was made
in Grama Sabha meeting held at N.Vairavanpatty, Kundrakudi, Sivagangai
District against the then Hon'ble Chief Minister of Tamil Nadu on 08.02.2021.
In the speech, some references have been made, which are extracted as
follows:-
“/////// ,J nfhkhsp Ml;rp. Cjhhpj;jdkhd
Ml;rp. fbyf;c&d;. fbug;rd;. fkpc&d; Ml;rp”
“//////// jkpHf tptrhapfSf;F kl;Lky;y ,e;jpa
tptrhapfspd; thapy; tpc&j;ij Cw;wpa
tpc&f;fpUkpjhd; gHdpr;rhkp/////”
“////// ,j;jifa kz; Fjpiuia ek;gp mjpKf
muR ,dp gazk; bra;a KoahJ/ ,j;jifa
cjthf;fiufis ek;gp fl;rp elj;j KoahJ/
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Crl.O.P(MD).No.6312 of 2021
Ml;rp elj;j KoahJ/ ,e;j fHprilfSf;F
Kw;Wg;g[ss
; p itf;fpw njh;jy;////////”
5.The above speech 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(2) of Cr.P.C., is not
proper. The G.O.Ms.No.132, dated 26.02.2021, is passed mechanically,
without 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.
6.He further submitted that the respondent/the Public Prosecutor 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 would 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
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Crl.O.P(MD).No.6312 of 2021
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 public speech was made in
good faith and not to defame the intellectual character of the then Hon'ble
Chief Minister or any other Minister.
7.He further submitted that in G.O.Ms.No.634, dated 10.08.2021, 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 month of February
2021, 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
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Crl.O.P(MD).No.6312 of 2021
cannot be termed as defamation.
8.The learned State Public Prosecutor submitted that on receipt of the
G,O.Ms.No.132, dated 26.02.2021, the respondent has filed a complaint
invoking Section 199(2) of Cr.P.C. The petitioner has not denied the public
speech made on 08.02.2021 in Grama Sabha meeting held at N.Vairavanpatty,
Kundrakudi, Sivagangai District. In the speech, the petitioner with an
intention to malign the reputation of the then Chief Minister of Tamil Nadu
made such speech at public place. The defamatory speech is extracted in the
complaint.
9.He further submitted that the Government had issued the G.O.Ms.No.
634, 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.
10.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
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Crl.O.P(MD).No.6312 of 2021
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
shall be withdrawn without the lieu of the High Court.
11.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
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Crl.O.P(MD).No.6312 of 2021
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 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
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Crl.O.P(MD).No.6312 of 2021
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”).”
12.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.
13.On perusal of the Government Order and the complaint, it is seen
that no such is imputation 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
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Crl.O.P(MD).No.6312 of 2021
Crl.O.P.No.23619 of 2018.”
14.The petitioner was the Leader of the Opposition party at the time of
occurrence and some political speech made in Grama Sabha meeting held at
N.Vairavanpatty, Kundrakudi, Sivagangai District on 08.02.2021. 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.
15.Accordingly, this Criminal Original Petition stands allowed and the
proceedings in C.C.No.12 of 2021, on the file of the Principal District Court,
Sivagangai is hereby quashed. Consequently, the connected miscellaneous
petitions are closed.
21.01.2022
Index : Yes/No
Internet : Yes/No
vv2
To
1.The Principal District Court,
Sivagangai.
2.The Public Prosecutor,
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Crl.O.P(MD).No.6312 of 2021
Sivagangai District,
Sivagangai.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P(MD).No.6312 of 2021
M.NIRMAL KUMAR, J.
vv2
Crl.O.P(MD).No.6312 of 2021
21.01.2022
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