Madras High Court
Ttv Dhinakaran vs The Public Prosecutor on 7 July, 2022
Crl. O.P. (MD)No. 9781 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.(MD) No.9781 of 2019
and
Crl.M.P.Nos.6209 and 6210 of 2019
TTV Dhinakaran
Member of Legislative Assembly
Dr. Radhakrishnan Nagar
Chennai
Tamil Nadu
also at
No.5 Venkateswara Nagar
4th Street, Karpagam Garden
Adyar
Chennai 600 020. ... Petitioner
Vs
The Public Prosecutor
Principal District and Sessions Court
Karur. ... Respondent
PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C. to
call for the records in C.C.No.2 of 2019, pending on the file of the Principal
Sessions Judge, Karur and to quash the same.
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Crl. O.P. (MD)No. 9781 of 2019
For Petitioner ... Mr.N. Raja Senthoor Pandian
For respondent ... Mr.A.Gokulakrishnan
Additional Public Prosecutor
-----
ORDER
This Criminal Original Petition has been filed to quash C.C.No.2 of 2019,
pending on the file of the learned Principal Sessions Judge, Karur, 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 huge gathering, at Karur, on
18/4/2018, the petitioner had made a defamatory accusation against the Hon'ble
Chief Minister of Tamil Nadu.
3. Heard Mr.N.Raja Senthoor Pandian, learned Counsel for the petitioner
and Mr.A.Gokulakrishnan, learned Additional Public Prosecutor for the
respondent.
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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
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.442, issued by the Public (Law
and Order - H) Department, dated 20/6/2018 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
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Crl. O.P. (MD)No. 9781 of 2019
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
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
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Crl. O.P. (MD)No. 9781 of 2019
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 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.
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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
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
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Crl. O.P. (MD)No. 9781 of 2019
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
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
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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
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
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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
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.2 of 2019 on the file of the learned Principal Sessions
Judge, Karur, is liable to be quashed.
15. Accordingly, Criminal Original petition is allowed and the
complaint in C.C.No.2 of 2019 on the file of the learned Principal Sessions
Judge, Karur, is quashed. Consequently, the connected Criminal
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Miscellaneous Petitions are 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
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
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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
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.
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Crl. O.P. (MD)No. 9781 of 2019
N. SATHISH KUMAR, J
mvs.
Crl. O.P. (MD) No. 9781 of 2019
7/7/2022
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