IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 06.09.2022

CORAM

THE HONOURABLE Mr.JUSTICE G.K.ILANTHIRAIYAN

Crl.O.P.No.17223 of 2022

K.N.Nehru        …  Petitioner

          Vs

The Government of Tamilnadu rep by,

The Public Prosecutor,

Coimbatore District,

Coimbatore       … Respondent

PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C, praying to call for the records in CC.No.1 of 2020 on the file of the learned Principal District and Sessions Judge, Coimbatore and quash the complaint.

 

For Petitioner            : Mr.A.S.Aswin Prasanna

                                 For Respondent        : Mr.E.Raj Thilak,

Additional Public Prosecutor

ORDER

This petition has been filed to quash the proceedings in

CC.No.1 of 2020 on the file of the learned Principal District and Sessions Judge, Coimbatore, thereby taken cognizance for the offences under Section 500 of IPC as against this petitioner.

2. The crux of the allegation is that the petitioner is the Principal Secretary of a political party. While being so, the petitioner made statement as against a then Minister for Municipal Administration, Rural Development and Implementation of Special Programme. The imputations are pre-defamatory as against the Minister to harm, knowing and having known and having reasons to believe that such statement will harm the good reputation in discharging the public function of the Minister. Therefore, it clearly constitute offence punishable under Section 500 of IPC.
3. The learned counsel for the petitioner would submit that the entire private complaint is nothing but clear abuse of process of law and it is liable to be quashed on the ground that non fulfilment of the conditions set out in Section 199 sub clause (3) of Cr.P.C. The complaint does not furnish the petitioner with notice of the facts constituting the offence. Even if the petitioner were to be held responsible, such a statement is not a statement in respect of his conduct in the discharge of his public functions as required under Section 199 (2) of Cr.P.C. The petitioner has spoken about matters of general public interest and is alleged to have defamed the Minister. Therefore, the remarks made by the petitioner is petitioner’s right to free speech as contemplated under Article 19 (1)(a) r/w 19(2) of Constitution. If the alleged defamatory statements, already extracted, in respect of which sanction has been accorded to the Public Prosecutor to file the present complaint as against the petitioner, on perusal of the same, none of the statements, even if admitted to have been made by the petitioner, can be said to have any reasonable connection with the discharge of public duties by or the Office of the Chief Minister.
4. The learned Additional Public Prosecutor submitted that the respondent was accorded sanction in GO.Ms.No.374(Law & Order-H) Department dated 15.07.2020, to prosecute the petitioner. Accordingly, the respondent filed complaint and it is pending.
5. Heard, Mr.A.S.Aswin Prasanna, the learned counsel for the petitioner and Mr.E.Raj Thilak, the learned Additional Public Prosecutor appearing for the respondent.

 

6. The petitioner made statement as against the minister as follows:

,d;Dk; 11 khj’;fs; jhd; gj;jphpf;ifahsh;fSk;. v’;fs; fHf bjhz;lh;fSk; milf;fg;gll; nfhit kj;jpa rpiwr;rhiyapy; cs;shl;rpj;Jiw mikr;rh; ntYkzp milf;fg;gLthh; vdW; fHf Kjdi;k brayhsh; nf/vd/;neU mth;fs; vr;rhpf;if tpLj;Js;shh;/

7. On perusal of the GO.Ms.No.374(Law & Order-H) Department dated 15.07.2020, accorded sanction to prosecute the petitioner for the offence punishable under Sections 499 and 500 of IPC that the above statement made by the petitioner intended to harm, knowing and having known and having reasons to believe that such statement will harm the good reputation in discharging the public function of the Minister. It is relevant to extract the provision under Section 199(2) of Cr.P.C.

(2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 of 1860 ) is alleged to have been committed against a person who at the time of such commission, is the President of India, the Vice- President of India, the Governor of a State, the Administrator of a Union territory or a Minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor.

8. Every complaint referred to in sub- section (2) shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the caused of the offence alleged to have been committed by him. Admittedly, in the case on hand, the petitioner was not served with any notice of the facts constituting the offence. On perusal of the statement made by the petitioner, revealed that it does not amount to defame the Minister. It is relevant to extract the provision under Section 499 of IPC hereunder:
9. Defamation—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.
10. It is settled law that where a matter is of public interest, the court ought not to weigh any comment on it in a fine scale. Some allowance must be made on even intemperate language provided however that the writer kept himself within the bounds of substantial truth and it does not misinterpret or suppress facts. Further, the Hon’ble Supreme Court of India held in the case of K.Mishra Vs. State of MP reported in (2018) 6 SCC 676 that the expression “official duty” would in the absence of any statutory definition, therefore, denote a duty that arises by reason of an office or position of trust or authority held by a person. It follows that in every case where the question whether the accused was acting in discharge of his official duty or purporting to act in the discharge of such a duty arises for consideration, the court will first examine whether the accused was holding an office and, if so, what was the nature of duties cast upon him as holder of any such office. It is only when there is a direct and reasonable nexus between the nature of the duties cast upon the public servant and the act constituting an offence that the protection under Section 197 CrPC may be available and not otherwise. Just because the accused is a public servant is not enough. A reasonable connection between his duties as a public servant and the acts complained of is what will determine whether he was acting in discharge of his official duties or purporting to do so, even if the acts were in excess of what was enjoined upon him as a public servant within the meaning of that expression under Section 197 of the Code.”
11. Therefore, none of the statement allegedly made by the petitioner cannot be said to have any reasonable connection with the discharge of public duties by the minister. Further, the Hon’ble Supreme Court of India held in the case of Khushboo Vs. Kanniammal reported in

(2010) 5 SCC 600 as follows:

28. We are of the view that the institution of the numerous criminal complaints against the appellant was done in a mala fide manner. In order to prevent the abuse of the criminal law machinery, we are therefore inclined to grant the relief sought by the appellant. In such cases, the proper course for Magistrates is to use their statutory powers to direct an investigation into the allegations before taking cognizance of the offences alleged. It is not the task of the criminal law to punish individuals merely for expressing unpopular views. The threshold for placing reasonable restrictions on the `freedom of speech and expression’ is indeed a very high one and there should be a presumption in favour of the accused in such cases. It is only when the complainants produce materials that support a prima facie case for a statutory offence that Magistrates can proceed to take cognizance of the same. We must be mindful that the initiation of a criminal trial is a process which carries an implicit degree of coercion and it should not be triggered by false and frivolous complaints, amounting to harassment and humiliation to the accused.
29. Even though the constitutional freedom of speech and expression is not absolute and can be subjected to reasonable restrictions on grounds such as `decency and morality’ among others, we must lay stress on the need to tolerate unpopular views in the sociocultural space. The framers of our Constitution recognised the importance of safeguarding this right since the free flow of opinions and ideas is essential to sustain the collective life of the citizenry. While an informed citizenry is a pre-condition for meaningful governance in the political sense, we must also promote a culture of open dialogue when it comes to societal attitudes

11. Therefore, the threshold for placing reasonable restrictions on the ‘freedom of speech and expression’ is indeed a very high one and there should be a presumption in favour of the accused in such cases. Even though the constitutional freedom of speech and expression is not absolute and can be subjected to reasonable restrictions on grounds such as ‘decency and morality’ among others, we must lay stress on the need to tolerate unpopular views in the socio-cultural space. Further, on perusal of the complaint, there is no averment how the statement made by the petitioner is harming to the reputation of the minister.
12. In view of the above, the impugned compliant cannot be sustained as against the petitioner and it is liable to be quashed.

 

Accordingly, the entire proceedings in CC.No.1 of 2020 on the file of the learned Principal District and Sessions Judge, Coimbatore, thereby taken cognizance for the offences under Section 500 of IPC as against the petitioner is quashed and this criminal original petition is allowed.

06.09.2022

Internet:Yes

Index:Yes/no

Speaking/non speaking order lok

 

 

G.K.ILANTHIRAIYAN. J, lok

To

1.The learned Principal District and Sessions Judge,

Coimbatore

2.The Public Prosecutor,

Coimbatore District,

Coimbatore

3.The Public Prosecutor,    Madras High Court,    Chennai.

Crl.O.P.No.17223 of 2022

06.09.2022