The Madras High Court has decided the legal preposition of prosecution for defamation (Section- 499 IPC) under Section 199 of CrPC with regard to a Political Party.
The single-judge Bench of Justice G.R Swaminathan observed that any general party members cannot file complaint as the representation of 'party' comes from those at the helm.
The Court's ruling came in a defamation case pending against YouTuber M. Maridhas (petitioner herein) for targeting DMK over the announcement urging its cadre to draw 'Kolams' as a form of Anti-CAA Protest. Party Member S.R.S.Umari Shankar (Respondent herein) filed the impugned private complaint under Section 500 of IPC which was quahsed by the Magistrate on the ground that it was not maintainable.
Background
In Tamil Nadu, with regard to anti-CAA Protest, an Advocate, by name of Ms.Gayathri Kanthadai resorted to a novel form. The “Kolam” drawn by her and a few others in Besant Nagar in Chennai contained slogans opposing CAA. The Chennai Police detained them. This drew criticism from DMK which was the then principal opposition party. Following a meeting with the protestors, the DMK called upon its cadre to emulate Ms.Gayathri Kanthadai by drawing such Kolams in front of their homes. In the meanwhile, the Tamil Nadu police in a press conference alleged that Ms.Gayathri Kanthadai was associated with a Pakistan based NGO “Bytes for all”. The petitioner-YouTuber released a video on the same in which certain comments were alleged to be 'defamatory', however the prime question is that of maintainability of complaint.
Read also : Acting like complainant, adjudicator and prosecutor: SC pulls up UP Govt over fining CAA Protestors, warns 'stop it or we will'
Submissions
Learned Counsel appearing for the Respondent-Complainant submitted that the impugned complaint is very much maintainable and that the petitioner without any justification has made defamatory statements against DMK.
The complainant is an office bearer of the party. He was therefore entitled to file the impugned complaint, she submitted. Relying on SC Ruling in Subramanian Swamy v. UOI, she called upon the Court to bear in mind the broad sweep of Explanation 2 to Section 499 of IPC and pressed for dismissal of present petition.
Read also : सुप्रीम कोर्ट ने कहा, CAA विरोधी प्रदर्शन में रिकवरी नोटिस वापस ले यूपी सरकार
High Court Observation
The Court at the outset observed that respondent has filed it in his individual capacity and not on behalf of DMK. He claims to be a member and also an office bearer of DMK and there is nothing on record to show that DMK had authorised the complainant to file the impugned complaint.
"As Such"
The Court noted that the expression “as such” occurring in Explanation 2 to Section 499 of IPC which penalizes harming the reputation of any person is of high significance. It states that it may amount to defamation to make an imputation concerning a company or an association or collection of persons "as such".
The Court referred to Ahmedali Adamali v. Emperor wherein it was held that if a collection or company of persons as such is defamed one of their members may make a complaint on behalf of the collection or company of persons as a whole, but the defamation must be shown to be of all the persons in the association or collection as such.
"Person"
The Court next noted that the expression “person” occurring in the main part of Section 499 of IPC has to be inclusively construed.
Section 3 (42) of General Clauses Act, 1897 defines that “person” shall include any company or association or body of individuals, whether incorporated or not. It would obviously include a political party which is defined in para 2(1)(h) of the Election Symbols (Reservation and Allotment) Order, 1968.
The Court remarked that when the validity of the Symbols Order was questioned, the SC in Kanhiyalal Omar Vs. R.K. Trivedi & Ors, 1985 Latest Caselaw 206 SC noted that a political party's existence is implicit in the nature of democratic form of Government. The use of a symbol, be it a donkey or an elephant, does give rise to an unifying effect amongst the people with a common political and economic programme.
The Court mentioned that SC has previously observed that political parties are not bodies corporate but are only associations consisting of shifting masses of people, a recognized political party is very much a distinct entity enjoying constitutional recognition. This is particularly on account of the introduction of the X Schedule in the Indian Constitution.
It cited Salomon vs. A. Salomon & Co. Ltd , wherein it was observed that political party is a separate person apart from its members
"The legislative wing of a political party can issue commands through its whip. If they are disregarded by the individual legislator, then consequences as contemplated by law will follow. Just as a company was held to be a separate entity apart from its shareholders"
In view of above the Court noted that the petitioner has not targeted the members of DMK as such. The reference to “DMK persons” occurring in the video is not per se defamatory. What appear to be defamatory are only references to the Party.
"Some Person Aggrieved"
The Court stated that Section 199 of Cr.PC contains an embargo that no Court shall take cognizance of the offence except upon a complaint made by some person aggrieved by the offence. The expression “some person aggrieved” obviously includes a third party apart from the person defamed but it cannot be construed too expansively because Section 198 of Cr.Pc dealing with prosecution for offences against marriage employing the very same expression “some person aggrieved” includes only very proximate relatives like father, mother or brother of the affected woman can file a complaint and not any distant relative.
The Court cited John Thomas Vs. Dr. K. Jagadeesan, 2001 Latest Caselaw 319 SC and held that if a recognized political party has been defamed, a complaint by a high ranking functionary like the President or Secretary of the Party would definitely be maintainable in the light of the aforesaid decision. Where the Party alone in contra distinction with partymen has been defamed, others not at the helm of affairs cannot maintain a complaint as they would not be persons aggrieved.The Court remarked that in Subramanian Swamy V. Union of India reported in (2016) 7 SCC 221 it was held that whether the complainant is a person aggrieved has to be determined in each case according to the fact situation and the same has been reiterated in M.S. Jayaraj Vs. Commissioner of Excise, Kerala & Ors, 2000 Latest Caselaw 498 SC, G. Narasimhan & Ors Vs. T. V. Chokkappa [1972], 1972 Latest Caselaw 204 SC
"if a Magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not an “aggrieved person”, the trial and conviction of an accused in such a case by the Magistrate would be void and illegal."
Conclusion
Court observed that the issue is no longer res integra as the Court previously in Tamilisai Soundararajan V. Dhadi K.Karthikeyan had held that where the person or the party alleged to have been affected by the defamatory statements have not given any authorisation to the complainant and where the complainant on his own accord for reasons best known to him had thought fit to file the private complaint, he would not be a person affected and he cannot invoke Section 500 of I.P.C. In the said case, the petitioner before the High Court had alleged that Viduthalai Chiruthaigal Katchi (VCK) is conducting Kangaroo Courts and had uttered derogatory remarks against the said party and its head. A person claiming to be a party member filed a complaint. Cognizance was taken and summon was issued. The same was quashed by the Madras High Court and the said decision is squarely applicable to the case on hand.
"The petitioner had only made imputations against Ms.Gayathri Kanthadai and DMK. No imputation has been made against DMK partymen as such. The complainant has not suffered any legal injury. His reputation has not in any way been lowered. The Party has not authorised the filing of the complaint. If the partymen or the members of DMK had been defamed, then as a member of a definite class of people, the respondent could have maintained the complaint. Such is not the case here. The complainant on his own has filed the complaint. Since he is not a person aggrieved, continuation of the impugned proceedings will amount to an abuse of legal process. Therefore, the impugned proceedings are quashed. This criminal original petition is allowed. Consequently, connected miscellaneous petitions are closed"
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(With input from news agency language)
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