Madras High Court

C.Ve.Shanmugam vs The Public Prosecutor on 25 April, 2025

Author: G.K.Ilanthiraiyan

Bench: G.K.Ilanthiraiyan

                                                                                              Crl.O.P.No. 9691 of 2025

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 25.04.2025

                                                            CORAM:

                            THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                              Crl.O.P.No.9691 of 2025 and
                                          Crl.M.P.Nos.6415 and 6416 of 2025


                     C.Ve.Shanmugam                                                       ... Petitioner
                                                                 Vs.

                     The Public Prosecutor,
                     Villupuram District and Sessions Court,
                     Villupuram, Tamilnadu.                                               ..Respondent

                     PRAYER: Criminal Original Petition is filed under Section 528 of the
                     Bharatiya Nagarik Suraksha Sanhita, 2023, to call for the records and
                     quash the proceedings against the petitioner in C.C.No.02 of 2024
                     pending on the file of the Principal Sessions Judge, Villupuram.


                                     For Petitioner         : Mr.M.Mohamed Riyaz
                                                              for Mr.E.Balamurugan


                                     For Respondent         : Mr.A.Gopinath,
                                                              Government Advocate (crl.side)




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                                                                                             Crl.O.P.No. 9691 of 2025

                                                               ORDER

This Criminal Original Petition has been filed to quash the

proceedings in C.C.No.02 of 2024 pending on the file of the Principal

Sessions Judge, Villupuram.

2. The respondent, herein, filed a private complaint under Section

199(2) of the Code of Criminal Procedure, 1973, for the offence under

Section 499 of the IPC, punishable under Section 500 of the IPC. The

crux of the complaint is that on 16.09.2023, the petitioner, during a

public meeting held near Koliyanur Bazaar Street within the jurisdiction

of Valavanur Police Station, delivered a speech before an audience of

about 250 persons, through a public address system, containing allegedly

derogatory and defamatory remarks against the Hon’ble Chief Minister

of Tamil Nadu and the Government of Tamil Nadu. Pursuant to the said

speech, the respondent, Public Prosecutor, Villupuram, filed the present

complaint upon receiving sanction from the Government of Tamil Nadu,

vide G.O.Ms. No.114 dated 02.02.2024, issued under clause (a) of sub-

section (4) of Section 199 of Cr.P.C., authorizing the Public Prosecutor

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to lodge a complaint in respect of the impugned speech.

3. The learned Senior Counsel appearing for the petitioner

submitted that the petitioner is a Member of Parliament (Rajya Sabha)

representing Tamil Nadu and an active member of the principal

opposition party. As such, he has every right and duty, in a democratic

set-up, to express dissent and highlight the shortcomings and failures of

the ruling government. The right to criticize policies and actions of the

Government and its representatives is a core tenet of a functional

democracy. It was further submitted that the petitioner’s speech merely

reflects criticism of governance and does not constitute defamation under

Section 499 of IPC. The speech targeted perceived administrative

inaction and inflationary trends and did not contain any per-se

defamatory imputation against the State itself. That apart, the respondent,

who filed the complaint, is not an eyewitness to the alleged speech and

has relied solely on transcripts and media reports. The respondent’s dual

role as both the complainant and a witness undermines the objectivity

required for a proceeding under Section 199(2) of Cr.P.C., which

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demands strict scrutiny.

4. It was also contended that the complaint fails to distinguish the

roles envisaged under Section 199(2) and Section 199(6) of Cr.P.C., and

that the order taking cognizance is non-speaking, cryptic, and reflects

non-application of judicial mind. It was further argued that in the absence

of any direct and personal knowledge of the alleged defamatory

statement by the complainant, the Court should not have proceeded to

take cognizance.

5. The learned Senior Counsel further submitted that the speech

delivered by the petitioner is protected under Article 19(1)(a) of the

Constitution of India, which guarantees to every citizen the fundamental

right to freedom of speech and expression. In a democratic society, this

right includes the freedom to express opinions, criticisms, and dissent

against governmental actions or public figures occupying constitutional

offices. It was argued that the right to dissent, express disapproval, and

question the actions of the State or its leaders is not only constitutionally

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protected but is also essential for the functioning of a vibrant democracy.

The petitioner, being a Member of Parliament representing the principal

opposition party, was exercising this constitutionally guaranteed right in

a public forum. In support of this contention, he relied upon several

judgments.

6. Per contra, the learned Government Advocate (Criminal Side)

submitted that the petitioner made highly objectionable, false, and

defamatory statements targeting the Hon’ble Chief Minister of Tamil

Nadu and the Government of Tamil Nadu with the intent to tarnish their

reputation in the eyes of the public. It is contended that the remarks made

were not constructive criticism but deliberate, malicious, and defamatory

in nature. Hence, the learned counsel prayed for dismissal of the petition,

stating that the petitioner has an opportunity to defend his case during

trial.

7. Heard the learned counsel on either side carefully and perused

the materials placed before this Court.

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8. The petitioner, apart from being a sitting Member of Parliament

in the Rajya Sabha, is a former Minister of the State of Tamil Nadu and

represents the principal opposition party in the State. It is well settled

that in a democracy, the opposition plays a pivotal role in holding the

ruling party accountable by pointing out policy lapses and administrative

shortcomings. Criticism, however sharp, is not to be construed as

defamatory unless it crosses the threshold laid down under Section 499

of IPC. The relevant portion of the petitioner's speech is extracted below:

@,g;go fpll; jl;l c';fSila gzk;. c';fSila jhypia mWj;J. c';fs; tPlo; y; ,Uf;fpw rhkhd;fis mlkhdk; itj;J. ,e;j lh!;khf;fpny Foj;J me;j tUkhdj;jpy; kl;Lk; mth;fSf;F 50 Mapuk; nfho U:gha; ,e;j ! l; hypDf;F fpilf;fpwJ/ ,d;iwf;F kpd;rhu fl;lzk; vd;w bgahpny ,e;j muR ViH kf;fSila gzj;ij bfhs;isaoj;J bfhz;oUf;fpwJ/ ,e;j khwp kf;F Kjyikr;riu tr;rpUe;jh. ek;k vd;d gz;wJ> jhdht[k; g[hp”r; pf;f tf;fpy;iy. brhy; ngr;Rk; ,y;y. Ra g[j;jpa[k; ,y;y. brhy; g[j;jpa[k; nff;FwJ ,y;y/ vJt[k; fpilahJ/ ,e;j muR bra;j rhjid vd;dd;dh. tpiythrpia Vj;JdJ/ midj;J fl;lz';fisa[k; cau;j;JdJ. kf;fis ,d;iwf;F mtjpf;Fs;shf;fpaJ jhd; ! l; hypDila murpDila rhjid/ ntW ve;j rhjida[k; ,y;y/ v';f ghj;jhYk; bfhiy. bfhs;is. fw;gHpgg; .[ f”;rh. mhprp nrhW ,Uf;Fnjh ,y;iynah. f”r; h ,Uf;FJ ,e;j

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ehl;Ly/ ,J mJt[k; ,y;y kf;F. fspkz;q xd;Dk;

fpilahJ/ vJt[k; fpilahJ/ ,d;iwf;F jkpHfk; rPuHpe;J bfhz;oUf;fpwJ/ ,g;ngh mor;r bfhs;isy mtd; Mapuk;. ,uz;lhapuk; bfhLg;ghd;/:@ From the reading of the petitioner's speech, it is evident that the

statements primarily refers to the failures of the ruling dispensation in

controlling inflation and in addressing the rising prices of essential

commodities. The petitioner attributes these issues to administrative

inefficiency and policy inaction. The criticism, albeit sharp in tone, is

clearly political in nature and reflects the petitioner's role as a member of

the opposition in a democratic setup. Though the language used may

appear politically harsh or exaggerated, it is necessary to assess whether

it amounts to defamation in law.

9. The Hon'ble Supreme Court in the case of K.S.Puttaswamy

(Privacy-9J.) v. Union of India, reported in, (2017) 10 SCC 1, observed

that the right to dissent is an essential part of the constitution. The

relevant portion reads as follows:

"266....Our Constitution places the individual at the

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forefront of its focus, guaranteeing civil and political rights in Part III and embodying an aspiration for achieving socio-economic rights in Part IV. The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilized through history to wreak the most egregious violations of human rights. Above all, it must be realized that it is the right to question, the right to scrutinize and the right to dissent which enables an informed citizenry to scrutinize the actions of the Government. Those who are governed are entitled to question those who govern, about the discharge of their constitutional duties including in the provision of socio- economic welfare benefits. The power to scrutinize and to reason enables the citizens of a democratic polity to make informed decisions on basic issues which govern their rights. The theory that civil and political rights are subservient to socio-economic rights has been urged in the past and has been categorically rejected in the course of constitutional adjudication by this Court.”

10. Further, the Hon'ble Supreme Court, in the case of Kaushal

Kishore v. State of Uttar Pradesh, reported in, (2023) 4 SCC 1, has

observed that:

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“The right to dissent, disagree and adopt varying and Individualistic points of view inheres in every citizen of this Country. In fact, the right to dissent is the essence of a vibrant democracy, for it is only when there is dissent that different ideas would emerge which may be of help or assist the Government to improve or innovate upon its policies so that its governance would have a positive effect on the people of the country which would ultimately lead to stability, peace and development which are concomitants of good governance."

Thus it is evident that the right to dissent is fundamental to a vibrant

democracy and that differing views must be constitutionally protected.

Applying these judgments to the present case, this Court is of the

considered opinion that the statements made by the petitioner do not

amount to per se defamation under Section 499 of IPC, particularly when

viewed in the light of permissible democratic dissent. The impugned

speech, though critical, appears to be an expression of dissatisfaction

with public policies and administrative inaction, and not a targeted

personal attack on the Hon’ble Chief Minister or the State with malicious

intent.

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11. That apart, it is pertinent to note that this Court, in Crl.O.P. No.

21166 of 2024, by order dated 22.11.2024, had already set aside the

earlier order of cognizance passed by the Trial Court for being devoid of

reasons and remanded the matter with a direction to apply judicial mind

afresh. Even upon such remand, the order taking cognizance does not

reflect proper consideration of the legal requirements under Section 199

of Cr.P.C., and the distinction between criticism of governmental

functioning and defamation against the State has not been adequately

addressed. In the regard, it is relevant to refer to the judgment of the

Hon'ble Supreme Court in the case of Rekha Sharad Ushir v.

Saptashrungi Mahila Nagari Sahkari Patsansta Ltd., reported in,

(2025) SCC OnLine SC 641, which reads as under:

"Recording the complainant's statement on oath under Section 200 of the CrPC is not an empty formality. The object of recording the complainant's statement and witnesses, if any, is to ascertain the truth. The learned Magistrate is duty-bound to put questions to the complainant to elicit the truth. The examination is

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necessary to enable the Court to satisfy itself whether there are sufficient grounds to proceed against the accused. After considering the complaint, the documents produced along with the complaint, and the statements of the complainant and witnesses, if any, the learned Magistrate has to apply his mind to ascertain whether there is sufficient ground for proceeding against the accused. If he is satisfied that there is sufficient ground to proceed against the accused, then the learned Magistrate has to issue a process in terms of sub- Section (1) of Section 204 of the CrPC. The corresponding provision under the BNSS is Section 227. Setting criminal law in motion is a serious matter. The accused faces serious consequences in the sense that he has to defend himself in the trial.

12. Moreover, the respondent, who filed the complaint, admittedly

was not present at the place of the alleged occurrence and has not

furnished the statement of any eyewitnesses. The reliance on transcripts

and media reports, without independent verification or sworn statements

from persons who heard the speech, renders the prosecution

unsustainable.

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13. In view of the above circumstances and in the light of the

parameters laid down by the Hon’ble Supreme Court in K.S.Puttaswamy

(supra) and Kaushal Kishore (supra), this Court finds that the

ingredients constituting the offence under Section 499 of IPC are not

prima facie made out as against the petitioner. The continuation of the