If a political party is defamed, members not at helm can’t appeal- Madras High Court

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT 1 Reserved on : 04.02.2022 Pronounced on : 10.02.2022 THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN Crl.OP(MD)No.207721 CRL.MP(MD)Nos.11863 & 118621 Maridhas ... Petitioner Sole Accused S.R.S.Umari Shankar ... Respondent Defacto Complainant Prayer: Criminal Original petition filed under Section 482 of Cr.P.C to call for the records relating to C.C.No.21 on the file of the Judicial Magistrate No.3 Thoothukudi and quash the same. For Petitioner : Mr.Anantha Padmanabhan for Mr.M.Karthikeyavenkatachalapathy For Respondent : Ms.P.Malini 2 Heard the learned counsel on either side. 2.Feeling aggrieved by the petitioner s YouTube Video posted on 03.01.2020 the respondent herein filed the impugned private complaint under Section 500 of IPC. The jurisdictional magistrate took cognizance of the offence and issued summon to the petitioner. To quash the same this criminal original petition came to be filed. 3.The learned counsel appearing for the petitioner reiterated all the contentions projected in the memorandum of grounds and submitted that the impugned complaint is not 4.Per contra the learned counsel appearing for the complainant submitted that the impugned complaint is very much maintainable. She took me through the contents of the impugned complaint and pointed out that the words uttered by the petitioner are on the face of it defamatory. The petitioner has without any justification made defamatory statements 3 against Dravida Munnetra Kazhagam. The complainant is an office bearer of the party. He was therefore entitled to file the impugned complaint. A reading of the complaint would show that all the essential ingredients of the offence of the defamation are present in this case. The complainant has produced a witness and also enclosed the offending video. Only after due application of judicial mind cognizance was taken. The petitioner cannot claim the benefit of any of the exceptions to Section 499 of IPC. The petitioner s conduct is malicious and suffers from lack of good faith. The learned counsel heavily relied on the decision of the Hon ble Apex Court reported in7 SCC 221of 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. The expression “political party” is defined in para 2(1)(h) of the Election Symbols Order 1968 thus : “ Political party means an association or body of individual citizens of India registered with the Commission as a political party under para 3 and includes a political party deemed to be registered with the Commission under the proviso to sub paraof that paragraph”. When the validity of the Symbols Order was questioned the Hon ble Supreme Court in Kanhiya Lal Omar v. R.K.Trivedi 1985) 4 SCC 628 observed as follows : “10.It is true that till recently the Constitution did not expressly refer to the existence of political parties. But their existence is implicit in the nature of democratic form of Government which our country has adopted. 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 7 and economic programme and ultimately helps in the establishment of a Westminster type of democracy which we have adopted with a Cabinet responsible to the elected representatives of the people who constitute the Lower House. The political parties have to be there if the present system of Government should succeed and the chasm dividing the political parties should be so profound that a change of administration would in fact be a revolution disguised under a constitutional procedure. It is no doubt a paradox that while the country as a whole yields to no other in its corporate sense of unity and continuity the working parts of its political system are so organised on party basis in other words "on systematized differences and unresolved conflicts." That is the essence of our system and it facilitates the setting up of a Government by the majority. Although till recently the Constitution had not expressly referred to the existence of political parties by the amendments made to it by the Constitution Act 1985 there is now a clear recognition of the political parties by the Constitution. The Tenth Schedule to the Constitution which is added by the above amending Act acknowledges the existence of political parties and sets out the circumstances when a member of Parliament or of the State Legislature would be 8 deemed to have defected from his political party and would thereby be disqualified for being a member of the House concerned. Hence it is difficult to say that the reference to recognition registration etc. of political parties by the Symbols Order is unauthorised and against the political system adopted by our country.” 10.A reading of the decision of the Hon ble Supreme Court in Desiya Murpokku Dravida Kazhagam and Ors. vs. The Election Commission of India7 SCC 340 both the majority decision as well as the dissenting one) enlightens us with the following facts : “60.Section 29A of the R.P. Act 1951 provides for the registration of the political parties with the Election Commission. It was inserted in the R.P. Act 1951 in the year 1989. From the language of Section 29A it appears that registration with the Election Commission is not mandatory for a political party but optional for those political parties which intend to avail the benefits of Part IV of the said Act of which Section 29A is also a part 119.The expression "political party" was first introduced in the R.P. Act in the year 1989 9 by the amending Act No. 89. Section 2(f) was inserted which provides for the definition of the expression "political party". Simultaneously by the same amending Act Part IV A was introduced into the Act which dealt with the registration of political parties with the Election Commission and the advantages flowing from such registration. 120.The expression "recognised political party" was first introduced in the Act by Act No. 296 in the proviso to Section 33 and Sub Section of Section 38. Later such an expression was employed in Section 39A and in the second explanation to Sub Section of Section 77 Section 78A and Section 78B which occur under Part VA of the Act by the amending Act No. 403.” 11.Though in the dissenting judgment of His Lordship Mr.Justice Jasti Chelameswar it has been 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. The legislative wing of a political party can issue 10 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 the celebrated decision in Salomon vs. A. Salomon & Co. LtdAC 22] a recognized political party is also a separate person apart from its members. 12.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. The question is when the political party alone is defamed whether any member can file a complaint for defamation. 13.The offence of defamation is not like any other IPC offence. 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 the 11 expression “some person aggrieved” cannot be construed too expansively. This is because Section 198 of Cr.Pc dealing with prosecution for offences against marriage also employs the very same expression “some person aggrieved”. Only very proximate relatives like father mother or brother of the affected woman can file a complaint and not any distant relative. One gets the answer in John Thomas v. K.Jagadeesan(2001) 6 SCC 30 in which it was held as follows : “13.The collocation of the words "by some persons aggrieved" definitely indicates that the complainant need not necessarily be the defamed person himself. Whether the complainant has reason to feel hurt on account of the publication is a matter to be determined by the court depending upon the facts of each case. If a company is described as engaging itself in nefarious activities its impact would certainly fall on every Director of the company and hence he can legitimately feel the pinch of it. Similarly if a firm is described in a publication as carrying on offensive trade every working partner of the firm can reasonably be expected to feel aggrieved by it. If K.J. Hospital is a private limited company it is too farfetched to rule 12 out any one of its Directors feeling aggrieved on account of pejoratives hurled at the company.....” 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. 14.The Hon ble Supreme Court in Subramanian Swamy V. Union of India reported in 7 SCC 221 held that whether the complainant is a person aggrieved has to be determined in each case according to the fact situation. It was further reiterated following M.S.Jayaraj v. Commissioner of Excise 7 SCC 552 and G.Narasimhan v. T.V.Chokkappa2 SCC 680 that 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. G.Narasimhan was a case arising under Section 482 of Cr.Pc. 13 15.The issue is no longer res integra. A learned Judge of this Court in the decision reported in 2021MWN159had 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 Katchiis 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. The said decision is squarely applicable to the case on hand. 16.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 14 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 : Yes No : Yes No Note: In view of the present lock down owing to COVID 19 pandemic a web copy of the order may be utilized for official purposes but ensuring that the copy of the order that is presented is the correct copy shall be the responsibility of the advocate litigant concerned 1. The Judicial Magistrate No.3 Thoothukudi. 2.The Additional Public Prosecutor Madurai Bench of Madras High Court Madurai 15 G.R.SWAMINATHAN J Crl.O.P.(MD)No.207721

Summary: Section 499 of IPC penalizes harming the reputation of any person. Explanation 2 to Section 499 of IPC states that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. The expression “as such” occurring in Explanation 2 is highly significant. These were held by the High Court of Madras through the learned bench of Justice G.R Swaminathan  in the case of Maridhas v. S.R.S Umari Shankar(Crl.OP(MD)No.20774 of 2021 &amp; CRL.MP(MD)Nos.11863 &amp; 11864 of 2021) The crux of the case is Feeling aggrieved by the petitioner’s YouTube Video posted on 03.01.2020, the respondent herein filed the impugned private complaint under Section 500 of IPC. The jurisdictional magistrate took cognizance of the offence and issued summon to the petitioner. To quash the same, this criminal original petition came to be filed. The learned counsel appearing for the petitioner reiterated all the contentions projected in the memorandum of grounds and submitted that the impugned complaint is not maintainable. the learned counsel appearing for the complainant submitted that the impugned complaint is very much maintainable. She took me through the contents of the impugned complaint and pointed out that the words uttered by the petitioner are on the face of it defamatory. The petitioner has without any justification made defamatory statements against Dravida Munnetra Kazhagam. The complainant is an office bearer of the party. He was therefore entitled to file the impugned complaint. A reading of the complaint would show that all the essential ingredients of the offence of the defamation are present in this case. The complainant has produced a witness and also enclosed the offending video. Only after due application of judicial mind, cognizance was taken. The petitioner cannot claim the benefit of any of the exceptions to Section 499 of IPC. The petitioner’s conduct is malicious and suffers from lack of good faith. The learned counsel on the decision of the Hon’ble Apex Court in Subramanian Swamy v. UOI ((2016) 7 SCC 221). The learned bench of Justice G.R Swaminathan, relying on Desiya Murpokku Dravida Kazhagam and Ors. v. The Election Commission of India, ((2012) 7 SCC 340) and Section 3 (42) of the General Clauses Act, 1897, underscored that person’ would include a political party as well since it is ‘an association or body of individual citizens of India registered with Election Commission’ according to Election Symbols (Reservation and Allotment) Order, 1968. Further said “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.”