Madras High Court
Mr.K.C.Palanisamy vs Mr.Edappadi K.Palanisamy on 28 November, 2023
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.R.C.No.1775 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 28.11.2023
CORAM :
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.R.C.No.1775 of 2023
Mr.K.C.Palanisamy .. Petitioner/Complainant
Vs.
Mr.Edappadi K.Palanisamy ..Respondent/Accused
PRAYER : Criminal Revision Case has been filed under sections 397
read with 401 of Criminal Procedure Code to call for the records and set
aside the order passed by the 7th Metropolitan Magistrate, George Town,
Chennai on 03.08.2023 made in Crl.M.P.No.5919 of 2023 and any other
or further orders.
For Petitioner : Mr.B.Kumar, Senior Counsel
for M/s.Waraon and Sairams
For Respondent : Mr.R.John Sathyan, Senior Counsel
for Mr.E.Balamurugan
ORDER
This Criminal Revision Case is filed being aggrieved by the order
of the Judicial Magistrate who dismissed the complaint of the petitioner
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filed under Section 200 for the offence of defamation defined under
Section 499 and punishable under Section 500 of IPC against the
respondent herein.
2. The sum and substance of the complaint laid before the
Metropolitan Magistrate is that in an arbitration proceedings initiated
under Section 9 of the Arbitration and Conciliation Act, 1996 by the
respondent herein against the petitioner herein, an averment is made
about the petitioner that he was expelled by the party leader late
Dr.J.Jayalalithaa because he was misusing and abusing the association
with the party for his personal gains. Later, he was re-admitted into the
party (AIADMK) with hope that he would mend his way towards the
work for betterment of the party.
3. In the later part of the affidavit, it is stated that the petitioner
was re-inducted in the party on 01.03.2018 by the party coordinator and
joint coordinator but soon expelled from the party on 16.03.2018 for
misusing his position and making statements that were contrary to the
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stand of the party.
4. There is also an allegation against the petitioner that he is
administrating a domain in the name and style of WWW.AIADMK.ORG
and through that receiving money from public illegally for the
membership in the party and also carrying out his personal agenda in the
name of AIADMK.
5. Taking exception to these statements in the affidavit filed by
the respondent, the complaint was filed stating that these imputations are
per se defamatory without any basis. To tarnish the reputation and image
of the petitioner, imputations are made by the respondent with intent to
be read and harm his repute. They are not based on factual foundation or
supported by any credible evidence. It is ex-facie defamatory with
intention to malign the reputation of the complainant in the eye of general
public.
6. The learned Magistrate after recording the sworn statement
of the petitioner/complainant had gone into the imputation culled out
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from the affidavit filed by the respondent herein in the proceeding
pending before the High Court under the Arbitration and Conciliation Act,
1996 and had arrived at a conclusion that the averments in the said
affidavit may be false but not defamatory. Therefore, under Section 203
of Cr.P.C., dismissed the complaint.
7. The learned Senior Counsel appearing for the petitioner
submitted that the averments against the petitioner as if he was expelled
by the party leader late Dr.J.Jayalalithaa. It is not a mere false statement
as observed by the trial Court, but a statement knowingly made with
intention to defame the petitioner. It is not a statement just claiming that
the petitioner was expelled from the party by Dr.J.Jayalalithaa but carry a
defamatory reasoning for his expulsion. This imputation exposes the
malicious intention of the maker of the averment.
8. Pointing out that the averments in paragraph 3 of the
affidavit, it was submitted that the respondent had not only falsely stated
that the petitioner was expelled by the party leader late Dr.J.Jayalalithaa,
but also added that it was for misusing and abusing the association with
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the party for his personal gain. This imputation is not a mere factual error
but a calculated, intended imputation of the maker that it will be read and
demean the petitioner in the eye of the readers.
9. This Court in the course of the hearing asked the learned
counsel appearing for the respondent whether there is any record to show
that the petitioner herein was expelled from the party by the late
Dr.J.Jayalalithaa for the reason stated in the paragraph 3 of the
respondent's affidavit. The learned Senior Counsel appearing for the
respondent took time to report.
10. Today, when the matter taken up for hearing, the learned
counsel said that there is no record but probably that could have been
removed when the party headquarters was ransacked on 11.03.2022. This
reasoning and explanation per se could not be countenanced at this stage,
when the Court is called upon to find out whether any prima facie
material available to proceed against the respondent herein for offence
under Sections 499 r/w 500 IPC.
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11. The learned counsel for the respondent further submitted
that the statements of averment found in the affidavit filed in the course of
the judicial proceedings cannot be considered as a publication. Further
more, the learned counsel for the respondent has filed a detailed written
statement along with typed set of papers, wherein he had referred the
judgments of Hon'ble Supreme Court and the High Court where on facts,
Court has decided when and how a Court should proceed on a complaint
filed under Sections 499 and 500 IPC.
12. Also, the respondent rely upon few judgments referring
Section 42A of the Arbitration and Conciliation Act, 1996, and claim that
averments or pleadings in an arbitration proceedings are confidential in
nature and the question of publication can never arise.
13. This is a case where a member of a political party after
change of leadership had fallen out from the grace of the present leader
has led to Arbitration proceedings by the respondent herein who is in
control of the party. In the said proceedings, to substantiate his case
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against the petitioner herein, certain past events been referred and those
events are prima facie appears to be factually false. In addition, the
reasoning given for the expulsion of the petitioner on the face of it is
intent to influence the readers estimation about the petitioner.
14. Reading Section 42 A of the Arbitration and Conciliation Act,
1996 would clearly indicate that the confidentiality to be preserved not
for all irresponsible statement of defamatory statement made in the
pleading by either party, but only the proceedings except award where its
disclosure is necessary for the purpose of implementation and
enforcement of the award.
15. The respondent herein is the petitioner before the High Court
in a petition filed under Section 9 of Arbitration and Conciliation Act,
1996. In his affidavit he has made certain averments which according to
the petitioner herein is per se defamatory and he has approached the
Court for remedial action. If the arguments of the learned Senior Counsel
appearing for the respondent is to be accepted and all and any averments
made in an arbitration proceedings has to be protected under Section
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42A, then persons with dubious intent will file a petition under Section 9
and make every sort of defamatory statements against his adversary and
make it public through media an try to hide himself under the garb of
Section 42 A of Arbitration and Conciliation Act, 1996, Court cannot be
a silent spectator for such dubious design.
16. Section 42 A of Arbitration Act, is a provision to maintain
confidentiality of information. Therefore, by no stretch of imagination the
averments alleged in paragraph 3 or 5 of the affidavit filed before the
High Court in an arbitration proceedings can be considered as an
information about the proceedings.
17. It is to be noted that the purpose of filing affidavit in a
proceedings pending before the Court is with intention to read and the
pendency of the proceedings and reason for filing the application under
Section 9 of the Arbitration and Conciliation Act, 1996 are widely
reported in the media, since persons involved are known politicians.
Therefore the statements in the context and the persons who make it and
the person against who it is made are very relevant in a complaint for
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offence of defamation.
18. Having made an imputation which is prima facie harm the
reputation of the petitioner herein, the respondent cannot take umbrage
under Section 42 A of the Arbitration Act.
19. After considering the rival submissions, this Court is of the
view that the reasoning given by the learned Metropolitan Magistrate that
the statement found in the affidavit can at the most be a false statement
but not defamatory, a pre-concluded decision without conducting trial is
incorrect, when the allegation of expulsion from the party by late
Dr.J.Jayalalithaa itself is not supported by record. The reasoning
attributed for the expulsion gains significance to consider whether the
reason invented by the respondent herein to substantiate his false
statement of petitioner's expulsion made innocuously by or made with
malicious intention. This Court finds prima facie material that the
statement made about the character of the petitioner as the reason for
expulsion from the party is done with the malicious intention to defame
his reputation and bring down his esteem from the eye of the readers of
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the imputation. Hence the order of the trial Court is set aside. The
complaint stand restored on the file of the VII Metropolitan Magistrate,
George Town, Chennai. The trial Court shall proceed with the complaint
further as per law.
20. As a result, the Criminal Revision Case is allowed.
28.11.2023
Internet : Yes/No
Index: Yes/No
rpl
To
The VII Metropolitan Magistrate, George Town, Chennai
https://www.mhc.tn.gov.in/judis
Dr.G.JAYACHANDRAN, J.
rpl
28.11.2023
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