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Andhra High Court · body

2010 DIGILAW 994 (AP)

K. Pawan Kalyan v. D. Kiran Kumar

2010-10-07

SAMUDRALA GOVINDARAJULU

body2010
Judgment :- The petitioner is accused of offences punishable under Sections 500 and 501 I.P.C in C.C. No.34 of 2009 on the file of Judicial Magistrate of the First Class, Wanaparthy. He is stated to be a cine artist and brother of Telugu Cine Star by name Chiranjeevi, who recently established new political party by name ‘Praja Rajyam’ in this State. It is further stated that the accused was appointed as State President of ‘Yuva Rajyam’ which is youth wing of the said party. Whereas the complainant/1st respondent is stated to be a practising Advocate in Wanaparthy Courts and also various Courts at Mahaboobnagar and Hyderabad. He claims to be active worker in Indian National Congress Party. Previously the complainant is stated to have been appointed as Wanaparthy Mandal Youth Congress President and presently General Secretary of District Youth Congress. 2) Subject matter of the complaint in the lower Court is contents of public speech given by the accused at Dharna Chowk of Indira Park at Hyderabad. It is alleged that the accused made several allegations against Congress Party leaders describing them as Thieves and Betrayers of Country and as having criminal history and that the accused criticized Congress Party leaders indiscriminately without any basis. Naturally the controversial speech of the accused was published in many Telugu daily newspapers. Copies of ‘Andhra Bhoomi’ and ‘Eenadu’ Telugu daily newspapers dated 31.12.2008 were filed along with the complaint in the lower Court. The speech was made by the accused on 30.12.2008. Almost on the same date of publication of news items, the complainant presented the complaint against the accused in the lower Court. News items published in the above daily news papers do disclose not only excerpts of the speech but also text of speech of the accused by way of ghot action. The said contents of news items prima facie disclose defamatory statements not only against leaders in Congress Party named by the accused but also entire members of Congress Party in general. The said contents of news items prima facie disclose defamatory statements not only against leaders in Congress Party named by the accused but also entire members of Congress Party in general. 3) The only point urged by the senior counsel appearing for the petitioner/accused is that the complainant/1st respondent has no locus standi to file the criminal complaint as he was not named by the accused in his speech and that he cannot be termed as aggrieved party within the meaning of Section 199 Cr.P.C. Section 199(1) Cr.P.C reads: “(1) No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code(45 of 1860) except upon a complaint made by some persons 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.” Thus, in order to maintain a prosecution for defamation, the complainant should be an aggrieved person, and otherwise, he cannot maintain the complaint. It is contended by the senior counsel appearing for the petitioner/accused that no public interest litigation can be allowed in the case of a prosecution for defamation. He further commented that the present complaint is nothing but publicity oriented litigation and that it is an abuse of process of Court. 4) Reliance was placed on G.Narasimhan V. T.V.Chokkappa AIR 1972 Supreme Court 2609 and S.Khushboo V. Kannaimmal (2010)5 Supreme Court Cases 600 of the Supreme Court in support of the said contention. In G.Narasimhan(1 supra) it was held that the Section 199 Cr.P.C laid down an exception to the general rule that a complaint can be filed by anybody whether he is an aggrieved person or not, and modified that rule by permitting only an aggrieved person to move a Magistrate in cases of defamation. In G.Narasimhan(1 supra) it was held that the Section 199 Cr.P.C laid down an exception to the general rule that a complaint can be filed by anybody whether he is an aggrieved person or not, and modified that rule by permitting only an aggrieved person to move a Magistrate in cases of defamation. The Supreme Court further observed that Section is mandatory, so that if the 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. In G.Narasimhan(1 supra) the alleged defamatory statement was to the effect; “it should not be made an offence for a person’s wife to desire another man” contained in a resolution passed by Dravida Kazhagam Party at a conference held for bringing about social reforms and to eradicate certain customs and practices which are sheer superstitions. 5) In S.Khushboo (2 supra) the alleged defamatory statement stated to have been made by the appellant therein was to the affect that in her personal opinion, she had noted increasing incidents of pre-marital sex, especially in the context of live-in relationship; and called for social acceptance of the same. The appellant therein is also stated to have narrated her remarks by observing that girls should take adequate precautions to prevent unwanted pregnancies and transmission of venereal diseases. The Supreme Court observed therein: “37. It may be reiterated here that in respect of the offence of defamation, Section 199 CrPC mandates that the Magistrate can take cognizance of the offence only upon receiving a complaint by a person who is aggrieved. This limitation on the power to take cognizance of defamation serves the rational purpose of discouraging the filing of frivolous complaints which would otherwise clog the Magistrate’s Courts. There is of course some room for complaints to be brought by persons other than those who are aggrieved, for instance when the aggrieved person has passed away or is otherwise unable to initiate legal proceedings. However, in the given facts of the present case, we are unable to see how the complainants can be properly described as “persons aggrieved” within the meaning of Section 199(1) CrPC. However, in the given facts of the present case, we are unable to see how the complainants can be properly described as “persons aggrieved” within the meaning of Section 199(1) CrPC. As explained earlier, there was no specific legal injury caused to any of the complainants since the appellant’s remarks were not directed at any individual or a readily identifiable group of people. 41. This Court in G. Narasimhan case further noted that the news item in question did not mention any individual person nor did it contain any defamatory imputation against any individual. Accordingly, it was held that the complainant was not a “person aggrieved” within the meaning of Section 198 CrPC, 1898. The Court also took note of Explanation 2 to Section 499 IPC which contemplates defamation of “a company or an association or any collection of persons as such”. Undoubtedly, the Explanation is wide but in order to demonstrate the offence of defamation, such a collection of persons must be an identifiable body so that it is possible to say with precision that a group of particular persons, as distinguished from the rest of the community stood defamed. In case the identity of the collection of persons is not established so as to be relatable to the defamatory words or imputations, the complaint is not maintainable. In case a class is mentioned, if such a class is indefinite, the complaint cannot be entertained. Furthermore, if it is not possible to ascertain the composition of such a class, the criminal prosecution cannot proceed.” 6) The Kerala High Court in M.P.Narayana Pillai V. M.P.Chacko 1986 Crl.L.J 2002 held that the alleged derogatory remarks made against Syrian Christian community in a news item published, cannot be subject matter of offence punishable under Section 500 I.P.C. because such community is not determinable body and that complaint filed by member of Syrian Christian Community for individual defamation, is not maintainable. 7) On the other hand, the 1st respondent’s counsel invited attention of this Court to Explanation 2 to Section 499 I.P.C which reads as follows: “Explanation 2.-It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.” In G.Narasimhan (1 supra), the Supreme Court observed on Explanation 2 to Section 299 as follows: “A defamatory imputation against a collection of persons thus falls within the definition of defamation. The language of the Explanation is wide, and therefore, besides a company or an association, any collection of persons would be covered by it. But such a collection of persons must be an identifiable body so that it is possible to say with definiteness that a group of particular persons, as distinguished from the rest of the community, was defamed. Therefore, in a case where Explanation (2) is resorted to, the identity of the company or the association or the collection of persons must be established so as to be relatable to the defamatory words or imputations. Where a writing in weighs against mankind in general, or against a particular order of men, e.g., men of gown, it is no libel.” In Sahib Singh Mehra V. State of Uttar Pradesh AIR 1965 SC 1451 the Supreme Court considered the alleged defamatory statement made against the public prosecutors and prosecuting staff of Aligarh and held as follows: “It is clear therefore, that there could be defamation of an individual person and also of a collection of persons as such. The contention for the appellant then reduces itself to the question whether the prosecuting staff at Aligarh can be considered to be such a collection of persons as is contemplated by Explanation 2. The language of Explanation 2 is general and any collection of persons would be covered by it. Of course, that collection of persons must be it identifiable in the sense that one could, with certainty say that this group of particular people has been defamed, as distinguished from the rest of the community. The prosecuting staff of Aligarh or, a matter of fact, the prosecuting staff in the State of Uttar Pradesh, is certainly such an identifiable group or collection of persons. There is nothing indefinite about it. This group consists of all members of the prosecuting staff in the service of the Government of Uttar Pradesh. Within this general group of Public Prosecutors of U. P. there is again an identifiable group of prosecuting staff, consisting of Public Prosecutors and Assistant Public Prosecutors, at Aligarh. There is nothing indefinite about it. This group consists of all members of the prosecuting staff in the service of the Government of Uttar Pradesh. Within this general group of Public Prosecutors of U. P. there is again an identifiable group of prosecuting staff, consisting of Public Prosecutors and Assistant Public Prosecutors, at Aligarh. This group of persons would be covered by Explanation 2 and could, therefore, be the subject of defamation.” 8) Thus, from the above pronouncements of the Supreme Court and the Kerala High Court, it can be deduced to the affect that under Section 199 Cr.P.C only a person aggrieved can maintain lis for criminal defamation and that if the alleged derogatory statement or imputation was made against an association or collection of persons as such, then any member of such association or collection of persons can maintain a complaint for defamation before the Magistrate in case members of the said association or collection of persons are definite and identifiable. In the case on hand, the petitioner/accused is stated to have made derogatory remarks or imputations against not only the named congress persons, but also congressmen in general. This is not a case like either G.Narasimhan (1 supra) or S.Khushboo (2 supra) where the alleged derogatory remarks were made against the entire mankind as such and not against any individual or against any members of association or collection of persons. Therefore, though the principles laid in them are not in dispute, facts relating to them do not afford a guidance for application of those principles to facts in the case on hand. The 1st respondent/complainant claims to be a Congress party worker since a long time and claims to be Youth Congress President of Wanaparthy mandal previously and claims to be sitting General Secretary of the District Youth Congress. He is not only a congressman but also a local leader of the Youth wing in Congress Party. Membership of Indian National Congress Party is verifiable and ascertainable. In that view of the matter, it cannot be said that the complaint filed by the 1st respondent/complainant is not maintainable on the ground that he is not an aggrieved person. 9) In the result, the Criminal Petition is dismissed.