Madras High Court J. Jayalalitha vs Arcot N. Veerasamy on 30 April, 1997 Bench: M Karpagavinayagam ORDER 1. The petitioner Selvi J. Jayalalitha, is a former Chief Minister of Tamil Nadu. She filed a complaintagainst the respondent/accused Mr. Arcot N. Veerasamy, who is presently a Minister in Tamil Nadu

Madras High Court
J. Jayalalitha vs Arcot N. Veerasamy on 30 April, 1997
Bench: M Karpagavinayagam
ORDER
1. The petitioner Selvi J. Jayalalitha, is a former Chief Minister of Tamil Nadu. She filed a complaintagainst the respondent/accused Mr. Arcot N. Veerasamy, who is presently a Minister in Tamil Nadu Government, through her power of attorney agent Mr. V. S. Sethuraman, before the Lower Court, for the offence under Section 500 of the Indian Penal Code.
2. The accusation against the respondent is that the accused made certain defamatory statementagainst the petitioner in connection with the attack made on the former Chief Secretary of Tamil Nadu Mr. T. V. Venkataraman, that took place on 17-8-1996.
3. The petitioner on reading the newspaper, which published the said defamatory statement, feltthat the said statement was made to tarnish her image in the public, and so she filed this complaint before the lower Court, through her power of attorney agent Mr. V. S. Sethuraman.
4. Prior to the filing of this complaint, it is stated, on 27-1-1997, the petitioner sent a lawyer’s noticeto the respondent/accused, pointing out the above said false statement, and demanding an unconditional apology, expressing the regret, on receipt of the said notice. Despite, the receipt of this notice, it is stated, that there was no reply from the respondent.
5. On 9-4-1997, a petition was filed by the counsel for the petitioner, on behalf of the power ofattorney agent Mr. V. S. Sethuraman, representing the petition in Crl. M.P. No. 1293 of 1997, seeking leave to present the complaint on her behalf, on the ground that the petitioner was sick under Section 199(1) Cr. P.C.
6. On 17-4-1997, the learned Chief Metropolitan Magistrate, allowed the said petition, and grantedpermission to the power of attorney agent to file the complaint on behalf of the petitioner J. Jayalalitha, against the respondent. In pursuance of this order, the power of attorney agent gave a sworn statement, which was recorded by the Chief Metropolitan Magistrate on the same date. After considering the complaint, and the sworn statement, the learned Chief Metropolitan Magistrate, dismissed the complaint under Section 203 Cr. P.C., on 23-4-1997 on two grounds :-
(i) Sworn statement of power of attorney agent is not “valid”; one and
(ii) No sufficient material to take cognizance of offence u/S. 500 I.P.C.
7. Being aggrieved over this order, the petitioner through her power of attorney agent, filed thepresent revision before this Court.
8. Mr. Panchapakesan, learned counsel for the petitioner submitted, at the outset, that no notice isnecessary to the respondent/accused, in this revision, since he is not entitled to notice at this stage, as the order was passed by the lower Court under Section 203 Cr. P.C. prior to the stage of issue of process.
9. I am also of the view that no notice is necessary to the accused at this stage, since this Court, aswell as the Apex Court, have decided on this point, till the stage under Section 204 Cr. P.C., is reached, the accused in the complaint is not entitled to be heard.
10. Mr. Panchapakesan, learned counsel for the petitioner elaborately argued and put forth twoimportant points, for the purpose of consideration by this Court, in order to decide the ‘legality, propriety and the correctness of the impugned order passed by the learned Chief Metropolitan Magistrate, which are as follows :-
(i) The lower Court having granted leave to the power of attorney agent to make the complaint onbehalf of the petitioner, cannot invalidate the permission already granted, by observing that the sworn statement of power of attorney agent, cannot be considered as the basis, to support the averements made in the complaint, and that the sworn statement is not valid in law.
(ii) Though the averments in the complaint and the sworn statement, prima facie, do make out acase, for defamation against the respondent, the lower Court has wrongly dismissed the complaint on the ground that there is no sufficient material for proceeding against the respondent/accused in respect of the offence complained of.
11. Before considering the merits of these contentions, I shall endeavour to consider the facts as narrated in the complaint and the other records filed along with that.
(i) During the early morning of 17-8-1996, some culprits trespassed into the house of Mr. T. V.Venkataraman, former Chief Secretary of Tamil Nadu, and made an attack on him. Immediately, the complainant herein rushed to his house and offered her sympathies. On 18-8-1996, she issued a public statement through press condemning this brutal attack made on the former Chief Secretary, and stating that the Tamil Nadu Government should honestly investigate and trace out the read culprits, instead of trying to foist the case against some other persons.
(ii) On the same date, the impugned news item also appeared in the dailies, i.e. on 18-8-1996, itself.As per the impugned news, the respondent/accused Mr. Arcot N. Verrasamy, the present Minister for Electricity, Tamil Nadu Government, issued a statement, regarding the attack made on the former Chief Secretary, by some assailants, that the petitioner was responsible for the said attack, and the said attack was made in order to recover some files from him, which would enable the petitioner to escape from ‘coal deal case’.
(iii) On 27-1-1997, as referred earlier, the complainant issued a notice to the accused through herAdvocate, demanding for an unconditional apology from him for having made such a false statement. Since there was no reply, the instant complaint was filed on 9-4-1997, along with an application under the proviso to Section 199(1) Cr. P.C., seeking permission for her power of attorney agent, to file the said complaint on her behalf.
(iv) On 17-4-1997, the permission was granted for the power of attorney agent, to file the complaint,and sworn statement recorded. On 23-4-1997, the impugned order has been passed, dismissing the complaint under Section 203 Cr. P.C.
12. Section 199(1) Cr. P.C., provides thus :-
“Prosecution for Defamation : No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence :
Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf.”
12A. In the instant case, on 9-4-1997, as indicated earlier, a petition was filed in Crl. M.P. No. 1293 of 1997, for granting leave to make this complaint on behalf of the petitioner on the ground of sickness.
13. The learned Chief Metropolitan Magistrate, in that petition, on 17-4-1997, passed an order,granting leave, which is as follows :-
“On a careful consideration of the reasons stated in the petition as well as on a perusal of the xerox copy of discharge certificate issued by Appollo Hospitals in favour of the complainant Selvi J. Jayalalitha, this Court is of the opinion that Thiru V. S. Sethuraman, power of Attorney Agent of the complainant Selvi J. Jayalalitha can be granted permission to file this complaint on behalf of the complainant Selvi J. Jayalalitha, against the respondent Thiru Arcot N. Veerasamy and accordingly, this petition filed under Section 199 (proviso) Cr. P.C., is allowed.”
14. It transpires from the records filed along with the complaint before the lower Court, that anunregistered power of attorney was given by the complainant on 2-4-1997, appointing and retaining one Mr. V. S. Sethuraman, as her lawful attorney to prefer complaint before any Court, to vindicate her rights and to appear for and prosecute and defend all actions and proceedings before any Court, in connection with the Civil or criminal proceedings initiated on her behalf.
15. From the perusal of the records, it is made clear, that there is no specific authorisation given bythe complainant for filing this complaint to her agent with reference to the defamation, the subject matter of this case. The general power of attorney document executed on 2-4-1997, filed before the lower Court on 9-4-1997, is only a general power of attorney to her agent, to participate in all the proceedings, civil or criminal on her behalf. This document is also an unregistered one.
16. Admittedly there is no affidavit filed before the lower Court, either by the power of attorneyagent or by the complainant, narrating the circumstances, under which the leave was sought for. Despite all these deficiencies, the learned Chief Metropolitan Magistrate, has granted permission by order dated 17-4-1997, under the proviso to Section 199(1) Cr. P.C., to the power of attorney to file the complaint on behalf of the complaint on behalf of the complainant.
17. Having allowed the petition under the proviso to Section 199(1) Cr. P.C., the learned ChiefMetropolitan Magistrate, could not hold that the sworn statement of the power of attorney agent is not valid in law, and that the complainant cannot be exempted by permitting the power agent to conduct this criminal case, and that therefore, no credance could be given to the permission already given by this Court.
18. This observation, in my view, would amount to review his own order passed earlier on 17-4-1997. Therefore, the observation with reference to the power of attorny agent, who is a practicing Lawyer, to the effect that he attempted to mislead the Court is quite unwarranted.
19. It is quite preposterous to see as to how he could come to such a conclusion, after having passeda judicial order, granting leave to the power of attorney agent, to file the complaint on behalf of the petitioner. It would have been a different matter, if he dismissed the application under the provision to Section 199(1) Cr. P.C., on the ground that power of attorney could not be permitted, since he had no personal knowledge about the accusation, and that the complainants also did not give specific power to file this complaint, and that the said document was also unregistered one, and that no affidavit was filed narrating the circumstances, seeking for leave. The granting of leave could not be done for the mere asking, since it involves careful scrutiny before passing of the orders under the proviso to Section 199(1) Cr. P.C., as it would relate to the relaxing the embargo embodied under Section 199 Cr. P.C., for the presentation of the complaint by any other person, other than the person aggrieved. But, after having granted permission, he could not say that the permission was an invalid one.
20. Therefore, I fully agree with the learned counsel for the petitioner, that this complaint could notbe dismissed, merely on the basis of the alleged invalid sworn statement given by the power of attorney agent. So, I hold in favour of the petitioner, as far as the first point is concerned.
21. Regarding the second point, I feel, that a little bit probe is necessary, in order to arrive at aconclusion, whether the materials given in the complaint and other records filed along with that would be sufficient to take the complaint on file by taking cognizance of the offence.
22. Under Section 203 Cr. P.C., ‘if the Magistrate is of the opinion, after considering the statementson oath (if any) of the complainant and of the witnesses, that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.’ Being coming to the stage under Section 203 Cr. P.C., the Magistrate has to observe the formalities as contemplated under Section 200 Cr. P.C.
23. Section 200 Cr. P.C., contemplates, that the Magistrate taking cognizance of the offence, oncomplaint, shall examine, upon oath, the complainant, and the witnesses present, if any, and the substance of such examination shall be reduced in-to writing and shall be signed by the complainant and the witnesses and also by the Magistrate.’ Some exceptions are being provided under this Section, where the complaint was filed by the Public Servant, or when the Magistrate makes over the case for enquiry to another Magistrate under Section 192 Cr. P.C.
24. Under Section 202 Cr. P.C., the Magistrate on receipt of a complaint of an offence, of which he isauthorised to take cognizance, may, if he thinks fit, postpone the issue of process against the accused, and enquire into the case himself for the purpose of deciding whether or not there is sufficient ground for proceeding.
25. In this case, after consideration of the complaint and the sworn statement of the complainant’spower of attorney agent, the Magistrate has come to the conclusion, that there is no sufficient ground for proceeding further. So, this Court is called upon to decide whether the order passed by the lower Court is proper or not, in the light of the materials produced before the Court.
26. I have gone through the complaint, sworn statement and other records filed along with that. It isstated in the complaint, that the petitioner issued a public statement, asking the Government to honestly investigate, instead of trying to foist the case against some other persons. It is further stated in the complaint, that the respondent also issued a statement, in the impugned news item, stating that the petitioner was responsible for the attack made by the culprits on Mr. T. V. Venkataraman, former Chief Secretary of Tamil Nadu, in order to escape from the “coal deal case”, and that the Tamil Nadu police would soon trace out the real culprits, and expose to the public, the persons responsible for the attack made on the former Chief Secretary.
27. According to the complaint, both these news were published in the dailies on one and the sameday. It is also stated in the complaint, that the accusation made by the accused against the complainant in his statement issued to the Press, with regard to the import of coal, and her involvement in the attack made on former Chief Secretary are absolutely false and totally frivolous.
28. In this context, it would be relevant to refer some of the averments in the complaint :-
*”In the course of the investigation, the police had arrested a few persons said to have been involved in the aforesaid incident. The newspapers had carried the details of the said persons involved in the aforesaid incident. It would be seen from the said publications that the complainant had nothing to do with assailants …..
……….. When the Investigation by the police was going on, it was highly improper and mischievous on the part of the accused who is holding office as a responsible Minister to make such false charges against the complainant, and it clearly amounts to interfering with the course of justice.”
29. From these wordings, it would be clear, that investigation is said to be pending, till the date offiling of the said complaint. Even in the notice issued on behalf of the complainant, on 27-1-1997, it is stated as follows :-
“The allegations regarding the coal deal are all frivolous besides being unwarranted. The matter is entirely subjudice. It is very evident that you have made the statements without any regard for truth or course of justice and which clearly amounts to gross contempt of Court and would amount to interfering with the course of justice …… You have made the statements knowing them to be false, even before any police investigation and it only shows that you would resort to making any irresponsible and defamatory allegations against anyone merely to please some one in power to obtain political gains.”
This also would go to show, that the publication of the statement by the respondent/accused was said to be false, and would interefere in the course of justice.
30. Nothing has been mentioned in the complaint with reference to the fact that the allegationsmade by the accused against the complainant was found to be untrue, either in the investigation proceedings, or in Court proceedings. It must be also noted, that there is no averment either in the complaint or in the sworn statement, that due to above imputation the prestige, image and reputation of the complainant has been lowered in the estimation of the public.
31. According to the definition of ‘defamation’ as provided in Section 499 of the Indian Penal Code,”Whoever, by words either spoken or intended to be read, or by sings or by visible representations, makes or punishes 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, to defame that person.”
32. Explanation 4 to Section 499 I.P.C., runs as follows :-
“No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person, in respect of his caste or of his calling, or lowers the credit of that person, or caused it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.”
33. Thus, the conjoint reading of Section 499 I.P.C., with this Explanation 4, would make it clear,that in the complaint, there shall be an averment to the effect, that because of the imputation, the complainant’s reputation had been lowered in the estimation of others. As indicated earlier, this important ingredient is absent in the complaint and in the sworn statement.
34. While interpreting Section 499 I.P.C., and Explanation 4 thereto, this Court in Mis VioletWapshare v. Miss Maureen Fround, 1970 Mad LW (Crl) 4, held as follows :-
“The word “harm” used here relates to imputations on a man’s character made and expressed to others; so as to lower him in their estimation and anything which lowers him merely in his own estimation certainly does not constitute defamation.”
35. In a recent Judgment of the Supreme Court in Shatrughna Prasad Sinha v. Rajbhau SurajmalRathi, 1997 Cri LJ 212 : 1996 AIR SCW 4030, while answering similar question, the Apex Court after extracting Section 499 I.P.C., and Explanation 4 thereto, observed as follows at Page 214; of Cri LJ. :-
“A reading of the complaint does not contain any of the allegations constituting the offence of defamation punishable under Section 500 I.P.C. The contents of the magazine are alleged to be defamatory against the Marwari community, lowering them in the estimate of the public or their reputation is lowered in the society. But we do not find any allegation made in the complaint. Accordingly, we hold that the complaint filed in the Court of the Judicial Magistrate, First Class in Court No. 4, at Pune does not contain any of the allegations so as to constitute the offence of defamation defined in Section 499 and punishable under Section 500 I.P.C.”
Therefore, in the absence of the said averment in the complaint, with reference to the fact of the reputation of the petitioner having been lowered down in the estimation of the others, I feel that sufficient ground is not made out for proceeding further, by taking cognizance of the complaint.
36. In view of what has stated above, I am not able to persuade myself to differ from the view takenby the learned Chief Metropolitan Magistrate, that there is no sufficient materials so as to enable the Court to take cognizance of the offence under Section 500 I.P.C., against the respondent/accused.
37. In the result, the revision is dismissed.
38 Revision dismissed.

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