WP/7694/1999 of COSMO POLITAN CLUB REP.BY ITS Vs 1. THE STATE OF TN REP.BY THE on 5 December 2001

Relief

:ORDER

This Criminal Original Petition has been filed to quash proceedings inSpecial Case No.94 of 2014 on the file of the learned District and SessionsJudge, Tirunelveli, for taking cognizance offence under Section 500 I.P.Cfiled under Section 199(2) of Cr.P.C.

2. The case of the prosecution is that the petitioner, who is a DMKParty Headquarters Speaker, started the speech in the meeting, the petitionermade defamatory speech against the Hon-ble Chief Minister of Tamil NaduSelvi.J.Jayalalitha on 22.10.2013 at Thiruvallur Thial, Achamputhur,Tirunelveli District at about 19.15 hours to 22.00 hours.

2. The learned counsel for the petitioner submitted that the complaintfiled by the respondent for the offence punishable under Section 199 (2)Cr.P.C is legally not maintainable and the same is liable to be dismissed. Hewould further submit that the facts narrated in the complaint never reflectsthat the petitioner had made defamatory speech in respect of conduct of ChiefMinister of Tamil Nadu while discharging of her public function. The entireaverments in the complaint only indicated about the public problem alone notthe function of the Chief Minister of Tamil Nadu.

3. He also contended that Section 199(2) Cr.P.C, clearly enumerates thatthe public prosecutor can file complaint in writing if any offence have beencommitted against public servant who employed in connection with the affairsof the Union or State in respect of his conduct in the discharge of hispublic function. The reading of the complaint never indicated that the petitioner had made defamatory speech about the public function of the ChiefMinister of Tamil Nadu. Therefore, he prayed for quash the criminalproceedings.

4. The learned Public Prosecutor submitted that on 22.10.2013 atThiruvallur Thial, Achamputhur, Tirunelveli District, after obtaining duepermission from the police, the DMK Party conducted a public meeting from19.15 hours to 22.00 hours. When the police officials was on bandobust, atthe meeting venue, various speakers of DMK party have spoken andparticularly, the petitioner herein made defamatory speech against theHon-ble Chief Minister Selvi.J.Jayalalitha. It is highly defamatory andcontains imputations which are per se defamatory against the Hon-ble ChiefMinister of Tamil Nadu in respect of her conduct in the discharge of herpublic functions. The above said defamatory remarks are not only devoid oftruth but intentionally made not in good faith and against the interest ofthe public good. Thereby, the above accused has committed an offencepunishable under Section 500 I.P.C. Hence, the sought for dismissal of thequash petition.

5. Heard both side.

6. On perusal of the complaint filed by the respondent, it would revealsthat the petitioner herein defamed the Hon-ble Chief Minister of Tamil Nadupersonally and there is no words pertained to her public function. In thisregard, the constitutional Bench of Hon-ble Supreme Court of India held inthe judgment reported in CDJ 2018 SC 391 in the case of K.K.Mishra Vs. TheState of Madhya Pradesh & another. The relevant portions of the judgmentwhich reads as under:

?7. Section 199 (2) Cr.P.C. provides for a special procedure withregard to initiation of a prosecution for offence of defamation committedagainst the constitutional functionaries and public servantsmentioned therein. However, the offence alleged to have been committed mustbe in respect of acts/conduct in the discharge of public functions of theconcerned functionary or public servant, as may be. The prosecutionunder Section 199 (2) Cr.P.C is required to be initiated by the PublicProsecutor on receipt of a previous sanction of the Competent Authority inthe State/Central Government under Section 199 (4) Cr.P.C of the code. Sucha complaint is required to be filed in a Court of Sessions that is alonevested with the jurisdiction to hear and try the alleged offence and evenwithout 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 adeparture from the normal rule of initiation of a complaint before aMagistrate by the affected persons alleging the offence of defamation. Thesaid right, however, is saved even in cases of the category of personsmentioned 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 beenelaborately dealt with by this Court in a judgment of considerable vintagein P.C. Joshi and another vs. The State of Uttar Pradesh1[paragraph 9]. Thecore reason which this Court held to be the rationale for the specialprocedure engrafted by Section 199(2) Cr.P.C. is that the offence ofdefamation committed against the functionaries mentioned therein is really an offence committed against the State as the same relate to the discharge ofpublic functions by such functionaries. The State, therefore, would berightly interested in pursuing the prosecution; hence the special provisionand the special procedure.

P.C. Joshi (supra), however, specifically dealt with the provisions ofSection 198 B of the Code of Criminal Procedure, 1898 (?old Code?) which arepari materia with the provisions of Section 199 of the Cr.P.C. (?new Code?).9. The above would require the Court to consider as to whether thestatements made by the accused appellant in the Press Conference which havebeen taken note of in the order dated 24th June, 2014 granting sanction/permission can legitimately be said to be attributable or connected with thedischarge of public functions of the office of the Hon?ble Chief Minister. Inother words, whether the said statements have any reasonable nexus with thedischarge of Official duties by the Hon?ble Chief Minister.

10. The problem of identification and correlation of the acts referredto in an allegedly defamatory statement and those connected with thedischarge of public functions/official duties by the holder of the publicoffice is, by no means, an easy task. The sanction contemplated under Section199(4) Cr.P.C. though in the opposite context i.e. to prosecute an offenderfor offences committed against a public servant may have to be understood byreference to the sanction contemplated by Section 197 Cr.P.C. which dealswith sanction for prosecution of a public servant. There is a fair amount ofsimilarity between the conditions precedent necessary for accord of sanctionin both cases though the context may be different, indeed, the opposite.While dealing with the requirement of sanction under Section 197 Cr.P.C. thisCourt in Urmila Devi vs. Yudhvir Singh (2013) 15 SCC 624 had taken thefollowing view which may have some relevance to the present case.

?59. The expression ?official duty? would in the absence of any statutorydefinition, therefore, denote a duty that arises by reason of an office orposition of trust or authority held by a person. It follows that in everycase where the question whether the accused was acting in discharge of hisofficial duty or purporting to act in the discharge of such a duty arises forconsideration, the court will first examine whether the accused was holdingan office and, if so, what was the nature of duties cast upon him as holderof any such office. It is only when there is a direct and reasonable nexusbetween the nature of the duties cast upon the public servant and the actconstituting an offence that the protection under Section 197 CrPC may beavailable and not otherwise. Just because the accused is a public servant isnot enough. A reasonable connection between his duties as a public servantand the acts complained of is what will determine whether he was acting indischarge of his official duties or purporting to do so, even if the actswere in excess of what was enjoined upon him as a public servant within themeaning of that expression under Section 197 of the Code.?

11. If the allegedly defamatory statements, already extracted, in respect of which sanction has been accorded to the Public Prosecutor to filethe complaint against the appellant under Section 199 (2)Cr.P.C. by the orderdated 24th June, 2014 are to be carefully looked into, according to us, noneof the said statements, even if admitted to have been made by the appellant,can be said to have any reasonable connection with the discharge of publicduties by or the office of the Hon?ble Chief Minister. The appointment ofpersons from the area/place to which the wife of the Hon?ble Chief Minister belongs and the making of phone calls by the relatives of the Hon?ble ChiefMinister have no reasonable nexus with the discharge of public duties by orthe office of the Hon?ble Chief Minister. Such statements may be defamatorybut then in the absence of a nexus between the same and the discharge ofpublic duties of the office, the remedy under Section 199(2) and Cr.P.C.will not be available. It is the remedy saved by the provisions of sub~section (6) of Section 199 Cr.P.C. i.e. a complaint by the Hon?bleChief Minister before the ordinary Court i.e. the Court of Magistrate whichwould be available and could have been resorted to.

7. In view of the above ratio decided by the Hon-ble Supreme Court ofIndia, the complaint has been filed by the respondent herein complainingthat the petitioner has made a defamatory speech in the public function aboutthe Honourable Chief Minister of Tamil Nadu. Whereas, it is seen from thecomplaint that the petitioner has never made any defamatory speech about theHonourable Chief Minister of Tamil Nadu in the public function. The speechmade by the petitioner would not reveal that he defamed the Honourable ChiefMinister of Tamil Nadu personally. Therefore, the complaint lodged againstthe petitioner under Section 199(2) Cr.P.C filed by the respondent cannot besustained.

8. Accordingly, this Criminal Original Petition is allowed and theproceedings in Special Case No.94 of 2014 on the file of learned SessionsJudge, Tirunelveli is hereby quashed. Consequently, connected miscellaneouspetitions are closed.