High Court of Madras quashed Government Orders and complaints filed under Section 199(2) Cr.P.C. for criminal defamation against a newspaper, holding that mandatory element of State defamation was absent and prosecution was mechanical.
Writ petitions allowed; Government Orders and consequential complaints under Section 199(2) Cr.P.C. quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.04.2022
CORAM
THE HONOURABLE MR. JUSTICE M.GOVINDARAJ
W.P.Nos.27705 & 27706 of 2012, 12608, 12609 and 12610 of 2013 and W.M.P.Nos.17025 and 17026 of 2017 and M.P.No.2 of 2012
S.Selvam, Printer, Publisher & Editor, "Murasoli", Murasoli Achagam, No.180, Kodambakkam High Road, Chennai - 600 034. ...Petitioner in all W.Ps. Vs.
PRAYER in W.P.No.27706 of 2012: The Writ Petition has been filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, to call for the records pertaining to the
G.O.Ms.No.750, Public (Law and Order - H) Department dated 30.08.2012 issued by the second respondent and to quash the same as the same is an abuse of the process of law and is unconstitutional and illegal as it affects the petitioner's right to freedom of speech and expression and that of the press and Media.
PRAYER in W.P.No.12608 of 2013: The Writ Petition has been filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, to call for the records pertaining to the G.O.Ms.No.145, Public (Law and Order - H) Department dated 11.02.2013 issued by the second respondent and to quash the same as the same is an abuse of the process of law and is unconstitutional and illegal as it affects the petitioner's right to freedom of speech and expression and that of the press and Media.
PRAYER in W.P.No.12609 of 2013: The Writ Petition has been filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, to call for the records pertaining to the G.O.Ms.No.132, Public (Law and Order - H) Department dated 06.02.2013 issued by the second respondent and to quash the same as the same is an abuse of the process of law and is unconstitutional and illegal as it affects the petitioner's right to freedom of speech and expression and that of the press and Media.
PRAYER in W.P.No.12610 of 2013: The Writ Petition has been filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, to call for the records pertaining to the G.O.Ms.No.1059, Public (Law and Order - H) Department dated 20.12.2012 issued by the second respondent and to quash the same as the same is an abuse of the process of law and is unconstitutional and illegal as it affects the petitioner's right to freedom of speech and expression and that of the press and Media.
For Petitioner in all W.Ps. : M/s.S.S.Jayanthi For Respondent No.1 : M/s.S.Haja Mohideen Gisthi For Respondent No.2 : M/s.M.Rajendiran Additional Government Pleader
For Respondent No.3
: M/s.C.E.Pratap Government Advocate (Crl.Side)
C O M M O N O R D E R
The petitioner in all these writ petitions is one and the same challenging the Government Orders issued by the second respondent on the grounds of abuse of process of law, unconstitutional and illegal, as it affects the petitioner's right to freedom of speech and expression.
No.518, dated 29.07.2021, wherein the Government of Tamilnadu has taken a decision to drop all the cases filed in this regard.
"49. State is like a parent for all citizens in so far as Defamation law is concerned. It is normal for some parents to face vituperative insults from their children. Despite those insults, parents don’t disown their children quite easily. They always have the hope that their children will mend themselves in the near future. Only in rarest of rare cases when the character and behaviour of their children is irretrievably broken down and irreconcilable, the parents disown them. The attitude of the State with regard to defamation must also be the same as their tolerance level towards its citizens in so far as defamation is concerned must be akin to that of parents. When the state is having other avenues under law to make the offender realise the mistake if any, the criminal defamation law under section 499 and 500 IPC should be sparingly used by the State. An individual or a public servant/constitutional functionary can be impulsive but not the State which will have to show utmost restraint and maturity in filing criminal defamation cases. If the State becomes an impulsive prosecutor in criminal defamation matters that too in an era of social media where there are scores of abusive contents made against public figures, the Sessions Court will get clogged with innumerable matters which are sometimes vindictive in nature only to settle scores with opposition political parties. The intention of the legislature would never have been for this unlawful object.
Tamilnadu from the year 2012 to 2020 and finds a slew of cases filed totally numbering 226 cases are pending on the file of various Sessions courts till date. Even as seen from these batch of writ petitions, within a short period, the State has filed a slew of Criminal defamation cases. As seen from the data, irrespective of political party who is in power, cases under section 199(2) Cr.P.C. have been filed. In many cases, the High Court has stayed the prosecution. Due to the mechanical filing of complaints under section 199(2) Cr.P.C., the Sessions Courts are sometimes clogged with those matters due to reckless filing without application of mind and sometimes vindictively. This menace will have to be curbed and nipped in the bud. The Criminal defamation law is meant for a laudable object in real cases of necessity and cannot be misused by using the State as a tool to settle scores of a public servant/constitutional functionary over his/her adversary. A public servant/constitutional functionary must be able to face criticism. As public servants/constitutional functionaries, they owe a solemn duty to the people. The state cannot use criminal defamation cases to throttle democracy.
mind before prosecuting the criminal complaint and he should also be fair to the court.
a) A Public prosecutor must consider himself/herself as an agent of justice.
b) There should not be on the part of the public prosecutor a blind eagerness for, or grasping at a conviction.
c) The prosecution of the accused persons has to be conducted with utmost fairness. In undertaking the prosecution, the State is not actuated by any motives of revenge but seeks only to protect the community. There should not therefore be seemly eagerness for, or grasping at a conviction.
d) A public prosecutor should not by statement aggravate the case against the accused, or keep back a witness because his/her evidence may weaken the case of the prosecution.
e) A public prosecutor should place before the Court whatever evidence is in his/her possession.
f) A public prosecutor should discharge his/her duties fairly and fearlessly and with full sense of responsibility that attaches to his/her position.
g) Prosecution does not mean persecution.
satisfied that ingredients for taking cognizance under Section 199(2) has been made out, shall take cognizance and issue summons to the accused. When a specific procedure is contemplated under section 200 Cr.P.C., it cannot be deviated by adopting some other procedure which is not prescribed, even though it may be convenient to the complainant. The purpose of recording the substance of sworn statement by the Magistrate/Sessions Judge is to enable the Magistrate/Sessions judge to satisfy himself of the allegation in the complaint to proceed further in the matter and also put the accused on notice about the allegations.
section 199(2) Cr.P.C. namely “Defamation of the State” does not find a place in all the sanction orders. The public prosecutor as well as the Sessions Judge in cases where cognizance has already been taken by the Sessions Court have also not applied their mind independently as the core essence of prosecution under section 199 (2) Cr.P.C. namely “Defamation of the state” has not been satisfied as seen from the sanction orders. On this score alone, all the Government Orders and the consequential complaints for criminal defamation under section 199(2) Cr.P.C. will have to fail.
s/d-
Assistant Registrar
True Copy
Sub-Assistant Registrar
To
W.P.Nos.27705 & 27706 of 2012, 12608, 12609 and 12610 of 2013 and W.M.P.Nos.17025 and 17026 of 2017 and M.P.No.2 of 2012
SSN(CO)
SP(13/05/2022)
2 issues framed by the court
Whether Government Orders authorizing prosecution under Section 199(2) Cr.P.C. without findings of State defamation are unconstitutional violations of freedom of speech.
Whether complaints filed mechanically without specific findings that the State was defamed constitute an abuse of process of law.
Colour shows how this judgement treated each authority
6 provisions across 3 enactments
S. Selvam
Union of India
State of Tamilnadu
City Public Prosecutor
M. Govindaraj
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
