Dmp mp defamation case quashed full order of THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR Crl.O.P.No.30670 of 2019 and Crl.M.P.Nos.16635 & 16638 of 2019 S.R.Parthiban, M.P, Member of Parliament,

IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 22.10.2021
PRONOUNCED ON : 11.02.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.No.30670 of 2019 and Crl.M.P.Nos.16635 & 16638 of 2019
S.R.Parthiban, M.P,
Member of Parliament,
Salem Parliamentary Constituency,
S/o.C.Rajamanikam,
Residing at MDS Nagar,
Hasthampatty Post,
Salem District. … Petitioner
Vs.
The District Public Prosecutor,
Salem District, Salem. … Respondent

PRAYER: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to call for the records relating to C.C.No.8 of 2019 on the file of the Principal District and Sessions Judge, Salem and to quash the entire proceeding for the interest of justice.
For Petitioner : Mr.A.M.Esakkiappan
For Respondent : Mr.Hasan Mohamed Jinnah,
State Public Prosecutor assisted by
Mr.A.Damodaran,
Additional Public Prosecutor
*****
ORDER This Criminal Original Petition has been filed to quash the proceedings in C.C.No.8 of 2019, pending on the file of the Principal District and Sessions Court, Salem.
2.The gist of the case is that at the time of occurrence, the petitioner was the Member of Parliament belongs to Dravida Munnetra Kazhagam party. The petitioner made defamatory public speech on 07.06.2019 at Five Road, Salem against the then Hon’ble Chief Minsiter of Tamil Nadu that ‘……….mth;
oghhl;;bkz;oy; mtuJ cwtpdhf;Sff;hfnt ,e;j jpll;’f;s; jlPlg;glL;; njitapy;yhj ,l’f;spy; Tl ghy’f;s;
nghl;oUff;pwhh;/ ,J vyy;hk; kpfg; bghpa fkpc&d; mog;gilapy; elff;pwJ/ mJ vy;yhk; btspg;gilahf bjhpa[k;/ 40 rjtpfpj fkpc&Dff;hfnt ,e;j ghy’f;s; vy;yhk; fl;of;bfhzL;
,Uff;pwhh;/////////’. The petitioner has made this defamatory statement defaming the then Hon’ble Chief Minister of Tamil Nadu. This defamatory statement reveals serious imputation against the then Hon’ble Chief Minister of Tamil Nadu and it was made only with intention to malign his reputation while discharging his public function and duty. Hence, the Government of Tamil
Nadu has accorded sanction to the respondent under Section 199(4) Cr.P.C., vide G.O.Ms.No.374, dated 17.06.2019 for filing the above complaint before the concerned Court. As against the complaint in C.C.No.8 of 2019, this petition has been filed.
3.The learned counsel for the petitioner submitted that the petitioner was the Member of Parliament of DMK political party. Since defamatory statement made against the then Chief Minister of the Tamil Nadu, a complaint has been lodged by the respondent before the trial Court on the strength of the Government Order in G.O.Ms.No.374, dated 17.06.2019. The learned counsel further submitted that the trial Court before taking the complaint on file, failed to take note that the complaint itself is a political motivated one to wreak vengeance against the DMK political party. The petitioner has spoken only the view of the general public and it was not his personal view.
4.The learned counsel further submitted that the alleged public speech
was made on 07.06.2019 that ‘……mth; oghhl;;bkz;oy; mtuJ cwtpdhf;Sff;hfnt ,e;j jpll;’f;s; jlPlg;glL;; njitapy;yhj ,l’f;spy; Tl ghy’f;s; nghl;oUff;pwhh;/ ,J vy;yhk; kpfg; bghpa fkpc&d; mog;gilapy; elff;pwJ/ mJ vyy;hk; btspg;gilahf bjhpa[k;/ 40 rjtpfpj fkpc&Dff;hfnt ,e;j
ghy’f;s; vy;yhk; fl;of;bfhzL; ,Uff;pwhh;///////’. On going through the entire speech made, nowhere the official functioning of the then Chief Minister has been criticized or questioned. Thus, looking the public speech at any angle, no offence of defamation is made out against the then Hon’ble Chief Minister of Tamil Nadu. The petitioner was the Member of Parliament, who hails from a respectable family with legacy. He further submitted that the sanction accorded by the Government, is nothing but malafide and nonapplication of mind. The complaint is only an attempt to interfere with the fundamental right of the petitioner under Article 19(1)(a) & 21 of the Constitution of India. Taking cognizance of the complaint is nothing but interfering with the freedom of speech, a valuable right guaranteed under the Constitution of India.
5.The learned State Public Prosecutor appearing for the respondent submitted that on receipt of the G.O.Ms.No.374, dated 17.06.2019, the respondent filed a complaint against the petitioner for offence under Sections 499 & 500 IPC invoking Section 199(4) of Cr.P.C. The petitioner has not denied the speech made on 07.06.2019, at that time, the petitioner specifically named the then Hon’ble Chief Minster of Tamil Nadu and directly impeached her reputation. The transcripted defamatory portion of the speech is produced in the complaint. Thus, the public speech made by the petitioner impeaches the reputation of the then Chief Minister of Tamil Nadu.
6.He further submitted that the Government had issued the
G.O.Ms.No.633, dated 10.08.2021, on the recommendation of the Advocate General and Public Prosecutor, High Court of Madras and they have opined that the defamation cases may be withdrawn as per Section 321 of Cr.P.C.
7.Considering the rival submission and on perusal of the materials, it is seen that though the Government has passed the G.O.Ms.No.374, dated 10.08.2021 for withdrawal of the case, the Hon’ble Apex Court on 10.08.2021 in the case of “Ashwini Kumar Upadhyay Vs. Union of India and another in W.P.(C).No.699 of 2016”, has issued certain guidelines to check the misuse of prosecutor’s power in withdrawing cases under Section 321 Cr.P.C. Further, the power under Section 321 Cr.P.C., is required to be utilized with utmost good faith to serve the larger public interest and it cannot be used for extraneous and political considerations. The nature and gravity of the offence, its impact upon public life especially where the matters involve public funds and the discharge of a public trust is to be seen. In the case of the sitting former MPs and MLAs, directions has been issued that no prosecution case shall be withdrawn without the lieu of the High Court.
8.From the perusal of the materials, it is seen that in the case of
“K.K.Mishra Vs. The State of Madhya Pradesh and Another reported in CDJ 2019 SC 391”, the Hon’ble Apex Court had drawn guidelines with regard to Section 199(2) Cr.P.C., which provides for a special procedure with regard to initiation of a prosecution for offence of defamation committed against the constitutional functionaries and public servants. It would be beneficial to extract the paragraph Nos.7 and 8 of the above said Judgment:-
“7. Section 199(2) Cr.P.C. provides for a special procedure with regard to initiation of a prosecution for offence of defamation committed against the constitutional functionaries and public servants mentioned therein. However, the offence alleged to have been committed must be in respect of acts/conduct in the discharge of public functions of the concerned functionary or public servant, as may be. The prosecution under Section 199 (2) Cr.P.C. is required to be initiated by the Public Prosecutor on receipt of a previous sanction of the Competent Authority in the State/Central Government under Section 199 (4) of the Code. Such a complaint is required to be filed in a Court of Sessions that is alone vested with the jurisdiction to hear and try the alleged offence and even without 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 a departure from the normal rule of initiation of a complaint before a Magistrate by the affected persons alleging the offence of defamation. The said right, however, is saved even in cases of the category of persons mentioned 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 been elaborately dealt with by this Court in a judgment of considerable vintage in P.C. Joshi and another vs. The State of Uttar Pradesh1 [paragraph 9]. The core reason which this Court held to be the rationale for the special procedure engrafted by Section 199(2) Cr.P.C. is that the offence of defamation committed against the functionaries mentioned therein is really an offence committed against the State as the same relate to the discharge of public functions by such functionaries. The State, therefore, would be rightly interested in pursuing the prosecution; hence the special provision and the special procedure.
1 AIR 1961 SC 387 P.C. Joshi (supra), however, specifically dealt with the provisions of Section 198B of the Code of Criminal Procedure, 1898 (“old Code”) which are pari materia with the provisions of Section 199 of the Cr.P.C. (“new Code”).”
9.It is clearly stated that the offence of defamation committed attracting Section 199(2) Cr.P.C., against the functionaries mentioned therein is to be seen, where an offence committed is against the State and the same relate to the discharge of public functions by such functionaries. The State, therefore, would be rightly interested in pursuing the prosecution. Hence the special provision and the special procedure.
10.On perusal of the Government Order and the complaint, it is seen that no such imputation was made in discharge of public function of the then Hon’ble Chief Minister of Tamil Nadu. The decision of the Hon’ble Apex Court in the case of K.K.Mishra (cited supra) is consistently followed by this Court in the case of “Karur Murali Vs. Public Prosecutor, Tirunelveli in
Crl.O.P.(MD).No.17415 of 2018, Crl.O.P.No.2453 of 2015 and
Crl.O.P.No.23619 of 2018.”
11.The petitioner belongs to the then opposition party and he delivered some political statements on 07.06.2019. The allegations made in the complaint are personal in nature and no way pertains to the public functioning of the then Hon’ble Chief Minister of Tamil Nadu. In view of the same, the complaint filed before the trial Court is liable to be quashed.
12.Accordingly, this Criminal Original Petition stands allowed and the proceedings in C.C.No.8 of 2019, on the file of the Principal District and Sessions Court, Salem is hereby quashed. Consequently, the connected miscellaneous petitions are closed.
11.02.2022
Index : Yes/No Internet : Yes/No vv2
To
1.The Principal District and Sessions Court, Salem.
2.The District Public Prosecutor, Salem District, Salem.
3.The Public Prosecutor, High Court, Madras.

M.NIRMAL KUMAR, J.
vv2 Crl.O.P.No.30670 of 2019
11.02.2022
of 10