WWW.LIVELAW.

IN

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on : 04.02.2022

Pronounced on : 10.02.2022

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

Crl.OP(MD)No.20774 of 2021
and
CRL.MP(MD)Nos.11863 & 11864 of 2021

Maridhas ... Petitioner / Sole Accused

vs.

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.9 of 2021 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.

***

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ORDER

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

maintainable.

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

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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 in (2016) 7 SCC 221 (Subramanian Swamy

v. UOI). It was held therein that reputation is a valuable

right entitled to protection. In any event, the defence put forth

by the petitioner will have to be necessarily established only in

a regular trial. She also called upon this Court to bear in mind

the broad sweep of Explanation 2 to Section 499 of IPC. She

pressed for dismissal of this petition.

5.I carefully considered the rival contentions and went

through the materials on record. The Citizenship Act was

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amended in the year 2019 to give relief to the religious

minorities persecuted in some of the neighboring countries.

That led to protests all over India. In Tamil Nadu also,

agitations were held. An Advocate, by name, Ms.Gayathri

Kanthadai resorted to a novel form of protest. 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 Dravida Munnetra Kazhagam

which was the then principal opposition party.

6.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”. In this background, the

petitioner came out with the video in question.

7.The petitioner targeted Ms.Gayathri Kanthadai and

Dravida Munnetra Kazhagam. If DMK or Ms.Gayathri

Kanthadai had lodged a complaint under Section 500 of IPC,

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the locus standi could not have been questioned. Admittedly,

the complaint was filed neither by DMK nor by Ms.Gayathri

Kanthadai. The respondent has filed it in his individual

capacity and not on behalf of DMK. The respondent herein

claims to be a member and also an office bearer of DMK.

There is nothing on record to show that DMK had authorised

the complainant to file the impugned complaint.

8.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. It was considered in the decision reported in AIR

1938 Sind 88 (Ahmedali Adamali v. Emperor). It was held

therein 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.

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9.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. The expression “political party” is defined in

para 2(1)(h) of the Election Symbols (Reservation and

Allotment) 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-para (2) of
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

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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 (Fifty-Second
Amendment) 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

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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 India (2012) 7 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

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by the amending Act No. 1 of 1989. 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.
21 of 1996, in the proviso to Section 33 and Sub-
Section (2) of Section 38. Later, such an
expression was employed in Section 39A and in
the second explanation to Sub-Section (1) of
Section 77, Section 78A and Section 78B, which
occur under Part-VA of the Act by the amending
Act No. 46 of 2003.”

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

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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. Ltd [(1897) AC 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

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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 (Dr) (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

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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 (2016) 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 (2000) 7 SCC 552 and G.Narasimhan v.

T.V.Chokkappa (1972) 2 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.

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15.The issue is no longer res integra. A learned Judge of

this Court (His Lordship Mr.Justice M.Dhandapani) in the

decision reported in 2021 (3) MWN (Cr.) 159 ( 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. 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

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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.

10.02.2022

Index : Yes / No
Internet : Yes/ No
skm

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.

To:

1. The Judicial Magistrate No.3,

Thoothukudi.

2.The Additional Public Prosecutor,

Madurai Bench of Madras High Court, Madurai.

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G.R.SWAMINATHAN, J.

skm

Crl.O.P.(MD)No.20774 of 2021

10.02.2022

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