VERDICTUM.
IN
Crl.O.P.No.25334 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :22.10.2024
Pronounced on :25.10.2024
Coram:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.O.P.No.25334 of 2024
and
Crl.M.P.Nos.14210 and 14212 of 2024
Mr.Muthuvelaydha Perumal Appavu
@ M.Appavu .. Petitioner /Accused
/versus/
R.M.Babu Murugavel
S/o Mr.D.R.Mannu,
Advocate, Joint Secretary State Legal Wing,
AIADMK, Official Spokesperson,
Party Legal Advisory Committee
Member AIADMK Party,
Having permanent place of residence at
No.B-38, 9th Floor, Tower Block,
Taylors Road, Kilapuk,
Chennai 600 010. .. Respondent/
Complainant
Criminal Original Petition has been filed under Section 528 of
BNSS praying to call for the records in C.C.No.17 of 2024 on the file of
the Court Assistant Sessions Judge, Additional Special Court for Trial of
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Crl.O.P.No.25334 of 2024
Cases related to Member of Parliament and Members of Legislative
Assembly of Tamil Nadu, Chennai and quash the same.
For Petitioner :Mr.P.Wilson, Senior Counsel for
M/s P.Wilson Associates
For Respondent :Mr.R.John Sathyan, Senior
Counsel for M/s Nathan & Asso.
-----
ORDER
The petitioner herein is the present Speaker of the Tamilnadu
State Assembly. He is also the sitting MLA elected from Radhapuram
consitutuency as a candidate of DMK party. The respondent is former
Member of the State Assembly and present Joint Secretary, Legal Wing
of AIADMK party. The speech of the petitioner on 21/11/2023 at
Chennai in a book release function is the subject matter of the private
complaint for the offence under Sections 499 r/w 500 of IPC filed by the
respondent. The Special Court at Chennai for cases against MP and MLA
had taken cognizance and issued summons to the petitioner. The
complaint is impugned in this petition to quash on the following
grounds:-
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Crl.O.P.No.25334 of 2024
(a) The complainant has no locus to maintain the compliant for
defamation, since the alleged imputation is not against him. Neither his
party AIADMK has authorised him to file the complaint on behalf of the
party. There is a statutory embargo under Section 199 of Cr.P.C to take
cognizance of the offence under Section 499 IPC except upon a
complaint made by person aggrieved.
(b) The speech of the petitioner is neither slanderous nor
malicious for to be prosecuted under Sections 499 of IPC. Based on
video circulated in social media and press news, the complaint is filed.
The complainant has not heard the speech nor examined any person who
heard the speech. The qualified speech without any imputation against
any individual or the organisation namely AIADMK will not fall within
the definition of defamation.
(c) The complaint filed through e-portal of the Court on
15/07/2024 under Section 200 Cr.P.C is not maintainable, after
enforcement of Bharatiya Nagarik Suraksha Sanhita, 2023 (in short
“BNSS 2023) with effect from 01.07.2024. As per Section 531 of BNSS
2023, after 01/07/2024, the Code of Criminal Procedure, 1973 is repealed
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Crl.O.P.No.25334 of 2024
and only for pending matters, the old Code will apply and not for fresh
petitions/applications.
2. The Learned Senior Counsel for the petitioner relying on the
judgements of this court rendered in Tamilisai Soundararajan –vs-
Dhadi K. Karthikeyan reported in [2021 (3) MWN (Crl.) 159] and
Maridass -vs- S.R.S.Umari Shankar reported in [MANU/TN/0788/2022]
submitted that, the respondent is a person neither affected by the
slandeours speech nor authorised to file complaint by the
person/organisation aggrieved by the slanderous speech, hence, he
cannot maintain a defamation complaint.
3. Referring the speech of the petitioner, the Learned Senior
Counsel submitted that the complainant had cherry picked a part of the
speech to mislead. The speech of the petitioner relates to an event
happened few years ago when the AIADMK party lost its Leader and
struggling with in-fight. At that time, the complainant was not in
AIADMK party and he cannot claim any knowledge about, what
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Crl.O.P.No.25334 of 2024
transpired at that point of time within the AIADMK party.
4. Regarding maintainability of the complaint filed under the
Old Code of Criminal Procedure, the Learned Senior Counsel relying on
the judgments rendered in Deepu –vs- State of UP reported in
[MANU/UP.3040/2024] and XXXX –Vs- State of UT Chandigarh and
Others reported in [MANU/PH/3009/2024] emphasised that Cr.P.C, 1973
repealed w.e.f. 01/07/2024. Ergo; no new fresh appeal or application or
revision or petition can be filed under Cr.P.C on or after 01/07/2024.
Only applications pending in Court before 01/07/2024 can be dealt under
Cr.P.C,1973.
5. In response to the above submission made on behalf of the
petitioner, the learned Senior Counsel appearing for the
Respondent/Complainant submitted that, the complainant being the Joint
Secretary of the State Legal Wing of AIADMK and member of the Party
Legal Advisory Committee, he is competent to maintain the complaint.
Further, the complainant, before filing the complaint caused notice to the
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Crl.O.P.No.25334 of 2024
petitioner through his Lawyer on 22/11/2023 calling upon the petitioner
to convene a press meet and apologize for the slanderous statement and
pay compensation of Rupees Ten lakhs to his party. The petitioner inspite
of receiving the notice, not tendered apology.
6. The cause of action for the complaint arose on 21.11.2023
when the petitioner made his scandalous speech in a Book Release
Function. On that day, the complainant being the office-bearer of the
AIADMK party and vide communication dated 12.08.2021, the
complainant is duly authorised to defend the party and party workers
from malicious prosecution instituted by the opposite political party (i.e)
DMK. Therefore, there cannot be any doubt over the locus standi of the
complainant to institute the complaint on behalf of the party for the
malicious imputation made by the petitioner which is per se defamatory
and made with intention to create an illusory opinion among the public
that 40 MLAs of the party were willing to defect AIADMK and joint
DMK.
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Crl.O.P.No.25334 of 2024
7. To buttress his submission, the learned Senior Counsel
appearing for the respondent rely on the judgment of the Hon'ble
Supreme Court rendered in G.Narasimhan v. T.V.Chokkappa reported in
[(1972) 2 SCC 680] and contend that, the explanation (2) to Section 499
of IPC talks about collection of persons being defamed and any member
of the Association can be a complainant if the collection of persons is a
definite and determinate body. Hence, AIADMK being a definite and
determinate body, the respondent, a member and office-bearer can
maintain the complaint.
8. The learned Senior Counsel appearing for the
respondent/complainant relying upon the judgment of the High Court
rendered in John Thomas v. Dr.K.Jagadeesan reported in [AIR 2001 SC
2651], submitted that the collocation of the words “by some persons
aggrieved” need not necessarily be the defamed person himself. The test
should be whether the complainant has reason to feel hurt on account of
the publication. In this case, the imputation made by the petitioner in his
speech had necessarily caused hurt to the complainant and his party man
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Crl.O.P.No.25334 of 2024
which is meant for its discipline and devotion to the party. Referring
para 11 of his complaint in which the alleged imputation is extracted, the
learned Senior Counsel appearing for the respondent submitted that when
not even a last level member of the party willing to slight towards DMK,
the derogative remarks of the petitioner exhibits the ill-will of the
petitioner against AIADMK party.
9. He further submitted that the plea that the complaint filed
under old Code is not maintainable, is a preposterous argument placed by
the petitioner. According to the respondent counsel, after causing notice
to the petitioner calling upon him to tender apology, the complaint was
filed through on-line on 31.01.2024 before the II Metropolitan
Magistrate, Egmore, Chennai in e-filing No.7957 of 2024 and the same
was returned for the reason that the petitioner being the sitting Member
of the Legislative Assembly, the complaint should be filed before the
designated Court. When the complaint was submitted before the Special
Court for Exclusive trial of MPs and MLAs cases, it was returned with
instruction that the petition must be filed before the Principal Sessions
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Crl.O.P.No.25334 of 2024
Court and the Principal Sessions Court will transfer the case, if it is to be
tried by the Special Court.
10. In the said circumstances, the petitioner approached the
High Court in Crl.O.P.No.10769 of 2024 for direction to the Principal
Sessions Court to receive the complaint. On the direction of the High
Court, vide order dated 19.06.2024, the learned Principal Sessions Judge,
took the complaint on file and transferred the matter to the Special Court
designated constituted exclusively to try the case against MPs and
MLAs. Therefore, both on law and on facts the complaint under old
Code is maintainable.
11. Whether the complaint under old Cr.P.C is maintainable:
In respect of the plea that the defamation complaint filed on
15.07.2024 under Old Code is not maintainable, it is to be noted that the
alleged offensive speech was on 21.11.2023 and the complaint is for
offence under Section 499 of IPC. The savings and repeal Section 358 of
Bharatiya Nyaya Sanhita, 2023 (in short “BNS, 2023”) reads as under:-
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Crl.O.P.No.25334 of 2024
Repeal and savings.
(1) The Indian Penal Code (45 of 1860) is hereby
repealed.
(2) Notwithstanding the repeal of the Code referred to in
sub-section (1), it shall not affect,—
(a) the previous operation of the Code so
repealed or anything duly done or
(b) any right, privilege,obligation or liability
acquired, accrued or incurred under the Code
so repealed; or
(c) any penalty, or punishment incurred in
respect of any offences committed against
the Code so repealed; or
(d) any investigation or remedy in respect of
any such penalty,or punishment; or
(e) any proceeding, investigation or remedy
in respect of any such penalty or punishment
as aforesaid, and any such proceeding or
remedy may be instituted, continued or
enforced, and any such penalty may be
imposed as if that Code had not been
repealed.
(3) Notwithstanding such repeal, anything done or any
action taken under the said Code shall be deemed to have
been done or taken under the corresponding provisions of
this Sanhita.
(4) The mention of particular matters in sub-section (2)
shall not be held to prejudice or affect the general
application of Section 6 of the General Clauses Act,
1897(10 of 1897) with regard to the effect of the repeal.”
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12. Section 6 of General Clauses Act, 1897 deals about the
effect of “repeal” and it reads as under:-
“Section 6 of the Act deals with repeal. Its
main object is to reverse the common law rule that a
repeal obliterates the statute for all purposes for the
future. Though this section is one of the most important
sections in the code, and contains a provision of
frequent application a study of the decided cases up-to-
date shows that the problems that have arisen as to
repeal are (i) either outside the section,1 or (ii) concern
the application of the provisions of the section, or (iii)
concern the effect of a separate repeal clause in a
particular Central Act. These problems cannot be
avoided or minimised by, an amendment of section 6,
because their solution does not lie in any general rule.”
13. Thus, in both the statutes viz., BNS and General Clause
Act, 1897, it is made explicitly clear that the right, privilege, obligation
or liability acquired, accrued or incurred under the Code (IPC) shall not
be affected in view of the repeal.
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14. The interpretations of the Courts in respect of Section 484
of Cr.P.C., 1973 viz-a-viz IPC, 1860 cannot mutatis mutandis apply to
Section 531 of BNSS, since when Criminal Procedure Code, 1973 put
into force, Indian Peal Code, 1860 was intact. Whereas when Cr.P.C.,
1973 repealed and replaced by BNSS, 2023, correspondingly IPC was
also repealed and replaced by BNS, 2023 with repeal and saving
provision.
15. Sub Section (3) of Section 358 in BNS, 2023, provides a
deeming fiction to the effect, in respect of action taken under IPC shall
be deemed to have done or taken under the corresponding provision of
BNS. However, for the procedure to be followed while dealing offences
committed prior to 01.07.2024, is the Code of Criminal Procedure, 1973
alone to apply, in view of Section 4 and Section 531(2)(a) of BNSS 2023.
4. Trial of offences under Bharatiya Nyaya Sanhita,
2023 and other laws:- (1) All offences under the Bharatiya
Nyaya Sanhita, 2023 shall be investigated, inquired into,
tried, and otherwise dealt with according to the provisions
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hereinafter contained.
(2) All offences under any other law shall be
investigated, inquired into, tried, and otherwise dealt with
according to the same provisions, but subject to any
enactment for the time being in force regulating the manner
or place of investigating, inquiring into, trying or otherwise
dealing with such offences.
Section 531(2)(a) of BNSS, 2023 reads as under:-
“531.Repeal and savings:- (1)The Code of
Criminal Procedure, 1973 (2 of 1974) is hereby repealed.
(2) Notwithstanding such repeal-
(a)if, immediately before the date on which
this Sanhita comes into force, there is any appeal,
application, trial, inquiry or investigation pending, then,
such appeal, application, trial, inquiry or investigation
shall be disposed of, continued, held or made, as the case
may be, in accordance with the provisions of the Code of
Criminal Procedure, 1973, as in force immediately before
such commencement (hereinafter referred to as the said
Code), as if this Sanhita had not come into force;
16. The word “pending” employed in Section 531(2)(a) of
BNSS, 2023, cannot be given a restricted meaning ignoring Section 4 of
the BNSS, 2023 and Section 358 of BNS. If such restricted meaning is
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given, it will be prejudicial to the litigants, whenever limitation is
prescribed in one Act and not prescribed in another Act or different
limitation is prescribed or if there is change in the procedure itself.
17. For example under the BNSS, 2023 in a private complaint
under Section 223, offence can be taken cognizance by the Magistrate
only after giving the accused an opportunity to be heard. Similarly,
under BNSS, 2023, the accused has to file discharge petition within 60
days from the date of receipt of the copies relied by the prosecution or
from the date of committal as the case may be. Whereas no such
limitation is prescribed under the repealed Cr.P.C., 1973. If saving
provided under Section 531(2)(a) of BNSS, 2023, is restricted only to
matters pending on or before 01.07.2024, then a FIR or complaint
regarding an occurrence prior to 01.07.2024, but registered after
01.07.2024 to be proceeded following the procedure under BNSS, 2023.
This will be contrary to the saving of rights and privileges, acquired
ensured protection under Section 358 of BNS, 2023 and Section 4 of
General Clause Act.
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18. Further, the procedure is hand maid of justice. The right of
a person to seek remedy cannot be denied, if the complainant is able to
satisfy the Court that his complaint discloses commission of offence and
he is competent to maintain the complaint being a person affected.
19. Locus to maintain the complaint:-
The complainant R.M.Babu Murugavel, is a Member of the
AIADMK party and also the Joint Secretary of its Legal wing. The
following speech of the petitioner/accused is taken as a defamatory
against the AIADMK party:-
11....... “following the demise of late
Dr.J.Jayalalithaa(Amaa), the former Chief Minister of
Tamil Nadu and the then General Secretary of AIADMK
party, 40 MLA's from AIADMK political party were
willing to join the present ruling party and in this regard
one of the prominent politician from AIADMK political
party had contacted him in order to facilitate the said
purpose”.
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Crl.O.P.No.25334 of 2024
20. The complainant as member of the AIADMK party and as
its office-bearer and as one of the members of the legal advisor team
constituted by the party leadership claims that the above speech of the
petitioner Mr.Appavu is derogatory and without any material evidence.
According to him, the petitioner by his above speech had mocked
AIADMK party and its members credibility and loyalty. The speech
which has gone viral in the public domain, had tampered the goodwill of
the complainant and its party. The imputation made by Mr.Appavu with
intent to defame the complainant party (i.e.)AIADMK.
21. The speech of Mr.Appavu as reported in Indian Express
(copy relied by the complainant) reads as below:-
“Speaking at a function here on Monday,
Appavu said after the death of Jayalalithaa, the AIADMK
split into many factions and 18 MLAs complained about
the EPS government to the governor. "On the day TTV
Dhinakaran went to Tihar jail, a friend of mine called me
and said 40 AIADMK MLAs are ready to shift their
loyalty since they don't know where to go.
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(Emphasis added)
Immediately I thought the DMK was out of power for 10
years and using this (if DMK formed the government) we
could give local body posts to two crore persons if we
conduct local body elections, and one lakh people could be
given posts in cooperative departments. So, the DMK
should utilize this opportunity and I conveyed this to
Stalin.
Two days later, Stalin said only with popular mandate, the
DMK will come to power and not otherwise. He took such
a principled stand," Appavu said. However, stoutly
denying this, AIADMK organising secretary D Jayakumar,
at party headquarters here, said, "There is not even an iota
of truth in the statement made by Appavu. He just speaks
like this in the expectation of becoming a minister. I
request Stalin to make Appavu a minister."
22. The speech of Mr.Appavu and the instant reaction of
Mr.D.Jayakumar, Organising Secretary of AIADMK party is very clear.
The statement is denied as not true, but not been taken as an offensive or
defamatory imputation to demean AIADMK party or its members. It is to
be noted that Mr.D.Jayakumar was MLA and Minister on the day, when
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Crl.O.P.No.25334 of 2024
one of AIADMK party MLA and the Deputy Secretary
Mr.T.T.V.Dinakaran went to Tihar jail on 26.04.2017. On that day the
petitioner R.M.Babu Murugavel was not even a member of AIADMK
party.
23. In the light of the factual background narrated above, it is
necessary the interpretation of the Court regarding the expression “some
person aggrieved” employed in Section 199 (2) Cr.P.C has to be
examined.
24. Subramanian Swamy v. Union of India reported in
[(2016)7 SCC 221], the Hon'ble Supreme Court at paragraph No.197 and
198 has held as under:-
“198. The said provision is criticised on the
ground that “some person aggrieved” is on a broader
spectrum and that is why, it allows all kinds of persons to
take recourse to defamation. As far as the concept of “some
person aggrieved” is concerned, we have referred to a
plethora of decisions in course of our deliberations to show
how this Court has determined the concept of “some person
aggrieved”. While dealing with various Explanations, it has
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Crl.O.P.No.25334 of 2024
been clarified about definite identity of the body of persons or
collection of persons. In fact, it can be stated that the
“person aggrieved” is to be determined by the courts in each
case according to the fact situation. It will require
ascertainment on due deliberation of the facts. In John
Thomas v. K. Jagadeesan [John Thomas v. K. Jagadeesan,
(2001) 6 SCC 30 : 2001 SCC (Cri) 974] while dealing with
“person aggrieved”, the Court opined that the test is whether
the complainant has reason to feel hurt on account of
publication is a matter to be determined by the court
depending upon the facts of each case. In S. Khushboo [S.
Khushboo v. Kanniammal, (2010) 5 SCC 600 : (2010) 2 SCC
(Cri) 1299] , while dealing with “person aggrieved”, a three-
Judge Bench has opined that the respondents therein were not
“person aggrieved” within the meaning of Section 199(1)
CrPC as there was no specific legal injury caused to any of
the complainants since the appellant's remarks were not
directed at any individual or readily identifiable group of
people. The Court placed reliance on M.S. Jayaraj v. Commr.
of Excise [M.S. Jayaraj v. Commr. of Excise, (2000) 7 SCC
552] and G. Narasimhan [G. Narasimhan v. T.V. Chokkappa,
(1972) 2 SCC 680 : 1972 SCC (Cri) 777] and observed 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.
Thus, it is seen that the words “some person aggrieved” are
determined by the courts depending upon the facts of the
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case. Therefore, the submission that it can include any and
everyone as a “person aggrieved” is too specious a
submission to be accepted.
199. It has also been commented upon that by
giving a benefit to public servant employed in connection
with the affairs of the Union or of a State in respect of his
conduct in the discharge of public functions to file the case
through the Public Prosecutor, apart from saving his right
under sub-section (6) of Section 199 CrPC, the provision
becomes discriminatory. In this regard, it is urged that a
public servant is treated differently than the other persons
and the classification invites the frown of Article 14 of the
Constitution and there is no base for such classification.
Thus, the attack is on the base of Article 14 of the
Constitution.”
25. Thus, it is clear that 'some person aggrieved' but must be
the person aggrieved in any manner. In the instant case, the alleged
imputation of Mr.Appavu directed against 40 MLAs of AIADMK party
during the year 2017, will not cover the complainant even remotely. If he
claims that he carries the sword for his newly embraced party, he must
have expressed authorisation to represent his party. Whereas, the
complaint is in his personal capacity and not in the representative
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capacity.
26. In the result, this Criminal Original Petition is allowed.
The complaint of the respondent stands quashed for want of locus standi.
Consequently, connected Miscellaneous Petitions are closed.
25.10.2024
Index:yes
Internet:yes/no
Speaking order/non speaking order
Neutral citation:yes/no
ari
To:
The Assistant Sessions Judge, Additional Special Court for Trial of Cases
related to Member of Parliament and Members of Legislative Assembly
of Tamil Nadu, Chennai.
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Crl.O.P.No.25334 of 2024
Dr.G.JAYACHANDRAN,J.
ari
delivery Order made in
Crl.O.P.No.25334 of 2024
and
Crl.M.P.Nos.14210 and 14212 of 2024
25.10.2024
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