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2021 DIGILAW 1823 (MAD)

K. E. Gnanavel Raja v. K. Mukanchand Bothra

2021-06-30

M.DHANDAPANI

body2021
ORDER : The present petition has been filed for quashment of the case on the file of the XV Metropolitan Magistrate, George Town, Chennai, which have been taken pursuant to the complaint lodged by the respondent for prosecution of the petitioner for defamation. 2. It is the case of the petitioner that an interview was given by him along with his colleagues in the cine industry at the funeral of one Ashok Kumar, who committed suicide due to financial constraints, which interview was published in the Tamil Magazine “Junior Vikatan” on 29.11.2017, wherein it is alleged by the respondent that the petitioner had made defamatory and derogatory statement against the respondent, which led to the filing of the complaint by the respondent against the petitioner and three other persons. 3. The private complaint was preferred by the respondent before the learned XV Metropolitan Magistrate, George Town, Chennai, on the allegation that the petitioner had made derogatory/adverse/defamatory/ill statement against the respondent in the Tamil Magazine “Junior Vikatan”, which has wide circulation throughout the length and breadth of the country, which has been taken cognizance of by the learned Magistrate. The sum and substance of the said statement, alleged to have been made by the petitioner, for better appreciation, is quoted hereunder :- 4. Learned counsel appearing for the petitioner submits that the interview given by the petitioner is not an exclusive interview given to any person, much less the Tamil Magazine and the said statement was given by the petitioner only at the funeral of a colleague and the reason for the said suicide was the financial constraints faced by the deceased individual, which was the outcome of pressure created by the financiers. In that regard, the petitioner had merely subscribed his views when asked for and he had not made any pointed allegation against the respondent. In that regard, the petitioner had merely subscribed his views when asked for and he had not made any pointed allegation against the respondent. It is the further submission of the learned counsel for the petitioner that the said view expressed by the petitioner was under the bona fide belief and information, which he had from persons, who were reliable and, therefore, even if the statement had hurted the respondent, in view of the bona fide belief of the petitioner in uttering the said statement, exception 8 and 9 to Section 499 IPC stands attracted and, therefore, the said statement of the petitioner could in no way be termed to be slanderous and derogatory for invoking the provisions of Section 499 IPC. Therefore, it is prayed that the private complaint, which has been taken cognizance of by the learned Magistrate, deserves to be quashed. 5. Though the private complaint has been filed by the respondent, viz., Mukanchand Bothra, however, in view of the demise of the said individual, representation on his behalf was made by his son Gagan Bothra as party-in-person. It is the submission on behalf of the respondent that the petitioner is a very well known figure around the cine circles and had wide acquaintance and enjoys a great rapport among the public. The utterances of the petitioner literally accusing the respondent as persons, who, as financiers, have scant regard to the persons, who have taken money from them and inspite of the money being returned, they seldom return the pronotes, which have been given as security for the said financial transaction. It is the submission on behalf of the respondent that the imputation in the opinion carried out by the Tamil Magazine directly imputes the respondent as one of the person responsible for the death of the individual, viz., Ashok Kumar. The statement tarnished the image of the respondent in front of the public at large, more so the members of the cine community, which has maligned his name in front of the public and the cinematic community. In the above backdrop, the private complaint has been filed, which on proper appreciation, has been taken on file and, therefore, it is submitted that no interference is called for. 6. In the above backdrop, the private complaint has been filed, which on proper appreciation, has been taken on file and, therefore, it is submitted that no interference is called for. 6. This Court bestowed its best attention to the contentions advanced by the learned counsel on either side and also perused the materials available on record as also the various provisions of law to which this Court's attention was drawn. 7. True it is that the Constitution has provided guarantee for freedom of speech and expression, which are part of the fundamental rights enshrined in the Constitution. Equally true it is that the said right of freedom of speech and expression are subject to reasonable restrictions as held by the Hon'ble Apex Court in Subramanian Swamy – Vs - Union of India ( 2016 (7) SCC 221 ). There can be no two different views on the above aspect, which has been well settled by a catena of decisions by the Hon'ble Supreme Court as well as this Court and, therefore, this Court is not inclined to add to it any further, but to state that while right to freedom of speech and expression are guaranteed under the Constitution, but, however, the same are subject to reasonable restrictions. 8. Chapter XXI IPC deals with 'Defamation' and takes within its fold Sections 499, 500, 501 and 502 IPC. Section 499 IPC deals with 'Defamation', while Sections 500 and 501 IPC provides for punishment for defamation. To attract the punishment contemplated u/s 500 and 501 IPC, defamation u/s 499 IPC should be made out. For better clarity, Section 499 IPC is quoted hereunder :- “499. Defamation — Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes 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, except in the cases hereinafter expected, to defame that person.” 9. Though Section 499 IPC deals with the acts that constitutes defamation, prosecution for defamation is envisaged u/s 199 Cr.P.C., which reads as under :- “199. Prosecution for defamation. Though Section 499 IPC deals with the acts that constitutes defamation, prosecution for defamation is envisaged u/s 199 Cr.P.C., which reads as under :- “199. Prosecution for defamation. (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 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. (2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 of 1860) is alleged to have been committed against a person who at the time of such commission, is the President of India, the Vice-President of India, the Governor of a State, the Administrator of a Union territory or a Minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor. (3) Every complaint referred to in sub-section (2) shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the caused of the offence alleged to have been committed by him. (4) No complaint Under sub-section (2) shall be made by the Public Prosecutor except with the previous sanction- (a) of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government ; (b) of the State Government, in the case of any other public servant employed in connection with the affairs of the State;(c) of the Central Government, in any other case. (5) No Court of Session shall take cognizance of an offence under sub-section (2) unless the complaint is made within six months from the date on which the offence is alleged to have been committed. (6) Nothing in this section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such complaint.” (Emphasis Supplied) 10. In the present case, sub-section(6) of Section 199 IPC is the fulcrum of the case on which basis the private complaint has been lodged by the respondent, which has been taken cognizance of by the learned Magistrate. A mere reading of the aforesaid provision makes it clear that subject to the exceptions carved out u/s 499 IPC and the ingredients that would make out an offence of defamation u/s 499 IPC, sub-section (6) of Section 199 Cr.P.C. would stand attracted on which cognizance can be taken on a private complaint. In the present case, the main point on which the whole issue falls is whether the interview, alleged to have been given by the petitioner would take within its fold the ingredients enumerated in Section 499 IPC. 11. The law on defamation has been dealt with extensively by the Hon'ble Apex Court in Subramanian Swamy – Vs - Union of India ( 2016 (7) SCC 221 ), adverting to various facets of defamation. One of the main contention raised in the said case relates to 'Reasonable Restriction' found in Article 19 (1) of the Constitution and in that context, the Hon'ble Apex Court held as under :- “130. The principles as regards reasonable restriction as has been stated by this Court from time to time are that the restriction should not be excessive and in public interest. The legislation should not invade the rights and should not smack of arbitrariness. The test of reasonableness cannot be determined by laying down any abstract standard or general pattern. It would depend upon the nature of the right which has been infringed or sought to be infringed. The ultimate “impact”, that is, effect on the right has to be determined. The legislation should not invade the rights and should not smack of arbitrariness. The test of reasonableness cannot be determined by laying down any abstract standard or general pattern. It would depend upon the nature of the right which has been infringed or sought to be infringed. The ultimate “impact”, that is, effect on the right has to be determined. The “impact doctrine” or the principle of “inevitable effect” or “inevitable consequence” stands in contradistinction to abuse or misuse of a legislation or a statutory provision depending upon the circumstances of the case. The prevailing conditions of the time and the principles of proportionality of restraint are to be kept in mind by the court while adjudging the constitutionality of a provision regard being had to the nature of the right. The nature of social control which includes public interest has a role. The conception of social interest has to be borne in mind while considering reasonableness of the restriction imposed on a right. The social interest principle would include the felt needs of the society. * * * * * * * * 131. As the submissions would show, the stress is given on the right to freedom of speech and expression in the context of individual growth, progress of democracy, conceptual respect for a voice of dissent, tolerance for discordant note and acceptance of different voices. Right to say what may displease or annoy others cannot be throttled or garrotted. There can never be any cavil over the fact that the right to freedom of speech and expression is a right that has to get ascendance in a democratic body polity, but at the same time the limit has to be proportionate and not unlimited. It is urged that the defamation has been described as an offence under Section 499 IPC that protects an individual's perception of his own reputation which cannot be elevated to have the status of public interest. The argument is that to give a remedy by taking recourse to criminal jurisprudence to curb the constitutional right, that is, right to freedom of speech and expression, is neither permissible nor justified. The provision possibly could have met the constitutional requirement had it been associated with law and order or breach of peace but the same is not the position. The provision possibly could have met the constitutional requirement had it been associated with law and order or breach of peace but the same is not the position. It is also canvassed that in the colonial era the defamation was conceived of to keep social peace and social order but with the changing climate of growing democracy, it is not permissible to keep alive such a restriction.” (Emphasis supplied) 12. From the above proposition of law, it is manifestly clear that the fundamental right to freedom of speech gets ascendance over individual's perception of his own reputation and that the constitutional right cannot be curtailed by taking recourse to criminal jurisprudence. The above decision of the Supreme Court was in the wake of individual's right vis-a-vis right to freedom of speech and expression as enshrined in the Constitution. 13. In the case on hand, the main allegation made against the petitioner by the complainant is that the views expressed by the petitioner, being a person well known in the cine circle, being in derogation and defaming the complainant, who is also associated with the members and affairs of the cine circle, has brought down his reputation and respect among the members of the cine circle and also the general public, which attracts the offence u/s 499 IPC. 14. In the above context, a careful perusal of the statement alleged to have been made by the petition, as is reflected in the complaint extracted supra, unambiguously and categorically reveal that the petitioner has merely stated that there are about 50 financiers, who finance for films of which two persons are bad and one of them is the complainant. The petitioner has further stated that recently, the Government has also taken penal action against the complainant. Barring the above, no other statement is made against the complainant casting aspersions. 15. From a careful reading of the above statement, alleged to have been made by the petitioner, it is crystal clear that it is the individual view voiced by the petitioner when he was one among the group of persons, who had attended a bereavement of a colleague. At that time, the petitioner has merely voiced his concern of what is happening in the cine circle. At that time, the petitioner has merely voiced his concern of what is happening in the cine circle. There is no specific aspersion casted against the complainant; rather a bald statement, which can only be termed to be a personal view of the petitioner, has been expressed, when the persons, who had gathered at that time had been interviewed. Further, a material should not be seen in isolation, but rather, it should be seen in conjunction with all the materials. In this context, all the persons, who were interviewed had to be read in conjunction. However, the complaint of the complainant reveals that a particular statement, spoken to by the petitioner alone is highlighted, and the said statement, read in isolation, does not in any way impute allegations or cast aspersions against the complainant. The said statement merely reveals the name of the complainant as one of the person, who is a bad financier and that Government has taken action against him. It is not in dispute that penal action was launched against the complainant by the Government, though subsequently, the petitioner was set at liberty from the same. That being the undisputed position, this Court is of the considered view that the view expressed by the petitioner could only be said to be a personal view, which has been expressed by him at a particular place and the said statement cannot in any way be said to be a derogatory statement aimed at bringing down the reputation of the petitioner. If such a narrow inference is given, then any publication or any view expressed by one or other individual would squarely be defamation of one or the other person, which is not the intent and purport of enacting the said provision of law. 16. Further, it is to be pointed out that even according to the complainant, as is revealed in the said complaint, the petitioner does not know the complainant nor has the complainant and the petitioner met nor there were any business transaction between them. Further, it is the categorical stand of the complainant that the petitioner has not borrowed any money from the complainant. Such being the admitted case of the complainant, the contention of the petitioner that Exceptions 8 and 9 to Section 499 IPC stands squarely attracted deserves acceptance. 17. Further, it is the categorical stand of the complainant that the petitioner has not borrowed any money from the complainant. Such being the admitted case of the complainant, the contention of the petitioner that Exceptions 8 and 9 to Section 499 IPC stands squarely attracted deserves acceptance. 17. A perusal of Exception 8 and 9 to Section 499 IPC clearly reveals that the accusation made in good faith to another person and any imputation made in good faith for the protection of his or other persons interest would not attract the ingredients of Section 499 IPC. In the case on hand, as stated above, a careful reading of the complaint coupled with the admitted stand of the complainant in the complaint makes it abundantly clear that the views expressed by the petitioner are not only personal, but according to him have been gathered by the petitioner from other trusted sources, and have been spoken to in good faith and such being the case, the complaint that the views expressed by the petitioner are derogatory and defamatory and has brought down the reputation of the complainant are wholly unsustainable and are hit by Exceptions 8 and 9 to Section 499 IPC. Further, the material on which reliance has been placed by the complainant to lodge the complaint, is so very flimsy that it does not stand even the slightest of the prick to hold any water. Therefore, this Court is is of the considered view that the complaint alleging defamation is without any substantial material and does not stand the test of judicial scrutiny and in the said backdrop, the cognizance taken by the learned Magistrate of the abovesaid complaint is wholly unsustainable and deserves to be set aside as being devoid of merits and is liable to be quashed. 18. In the result, the criminal original petition is allowed. The complaint in C.C. No.145 of 2018 on the file of the XV Metropolitan Magistrate, George Town, Chennai, is quashed. Consequently, connected miscellaneous petitions are closed.