J. Jayalalitha vs Arcot N. Veerasamy

M Karpagavinayagam, J.—The petitioner Selvi J. Jayalalitha, is a former Chief Minister of Tamil Nadu. She filed a complaint against the

respondent/accused Mr. Arcot N. Veerasamy, who is presently a Minister in Tamil Nadu Government, through her power of attorney agent Mr.

V. S. Sethuraman, before the Lower Court, for the offence u/s 500 of the Indian Penal Code.

The accusation against the respondent is that the accused made certain defamatory statement against the petitioner in connection with the attack

made on the former Chief Secretary of Tamil Nadu Mr. T. V. Venkataraman, that took place on 17-8-1996.

The petitioner on reading the newspaper, which published the said defamatory statement, felt that the said statement was made to tarnish her

image in the public, and so she filed this complaint before the lower Court, through her power of attorney agent Mr. V. S. Sethuraman.

Prior to the filing of this complaint, it is stated, on 27-1-1997, the petitioner sent a lawyer''s notice to the respondent/accused, pointing out the

above said false statement, and demanding an unconditional apology, expressing the regret, on receipt of the said notice. Despite, the receipt of this

notice, it is stated, that there was no reply from the respondent.

On 9-4-1997, a petition was filed by the counsel for the petitioner, on behalf of the power of attorney agent Mr. V. S. Sethuraman, representing

the petition in Crl. M.P. No. 1293 of 1997, seeking leave to present the complaint on her behalf, on the ground that the petitioner was sick u/s

199(1) Cr. P.C.

On 17-4-1997, the learned Chief Metropolitan Magistrate, allowed the said petition, and granted permission to the power of attorney agent to

file the complaint on behalf of the petitioner J. Jayalalitha, against the respondent. In pursuance of this order, the power of attorney agent gave a

sworn statement, which was recorded by the Chief Metropolitan Magistrate on the same date. After considering the complaint, and the sworn

statement, the learned Chief Metropolitan Magistrate, dismissed the complaint u/s 203 Cr. P.C., on 23-4-1997 on two grounds :-

(i) Sworn statement of power of attorney agent is not ""valid""; one and

(ii) No sufficient material to take cognizance of offence u/S. 500 I.P.C.

Being aggrieved over this order, the petitioner through her power of attorney agent, filed the present revision before this Court.

Mr. Panchapakesan, learned counsel for the petitioner submitted, at the outset, that no notice is necessary to the respondent/accused, in this

revision, since he is not entitled to notice at this stage, as the order was passed by the lower Court u/s 203 Cr. P.C. prior to the stage of issue of

process.

I am also of the view that no notice is necessary to the accused at this stage, since this Court, as well as the Apex Court, have decided on this

point, till the stage u/s 204 Cr. P.C., is reached, the accused in the complaint is not entitled to be heard.

Mr. Panchapakesan, learned counsel for the petitioner elaborately argued and put forth two important points, for the purpose of consideration

by this Court, in order to decide the ''legality, propriety and the correctness of the impugned order passed by the learned Chief Metropolitan

Magistrate, which are as follows :-

(i) The lower Court having granted leave to the power of attorney agent to make the complaint on behalf of the petitioner, cannot invalidate the

permission already granted, by observing that the sworn statement of power of attorney agent, cannot be considered as the basis, to support the

averments made in the complaint, and that the sworn statement is not valid in law.

(ii) Though the averments in the complaint and the sworn statement, prima facie, do make out a case, for defamation against the respondent, the

lower Court has wrongly dismissed the complaint on the ground that there is no sufficient material for proceeding against the respondent/accused in

respect of the offence complained of.

Before considering the merits of these contentions, I shall endeavour to consider the facts as narrated in the complaint and the other records

filed along with that.

(i) During the early morning of 17-8-1996, some culprits trespassed into the house of Mr. T. V. Venkataraman, former Chief Secretary of Tamil

Nadu, and made an attack on him. Immediately, the complainant herein rushed to his house and offered her sympathies. On 18-8-1996, she issued

a public statement through press condemning this brutal attack made on the former Chief Secretary, and stating that the Tamil Nadu Government

should honestly investigate and trace out the read culprits, instead of trying to foist the case against some other persons.

(ii) On the same date, the impugned news item also appeared in the dailies, i.e. on 18-8-1996, itself. As per the impugned news, the

respondent/accused Mr. Arcot N. Verrasamy, the present Minister for Electricity, Tamil Nadu Government, issued a statement, regarding the

attack made on the former Chief Secretary, by some assailants, that the petitioner was responsible for the said attack, and the said attack was

made in order to recover some files from him, which would enable the petitioner to escape from ''coal deal case''.

(iii) On 27-1-1997, as referred earlier, the complainant issued a notice to the accused through her Advocate, demanding for an unconditional

apology from him for having made such a false statement. Since there was no reply, the instant complaint was filed on 9-4-1997, along with an

application under the proviso to Section 199(1) Cr. P.C., seeking permission for her power of attorney agent, to file the said complaint on her

behalf.

(iv) On 17-4-1997, the permission was granted for the power of attorney agent, to file the complaint, and sworn statement recorded. On 23-4-

1997, the impugned order has been passed, dismissing the complaint u/s 203 Cr. P.C.

Section 199(1) Cr. P.C., provides thus :-

Prosecution for Defamation : No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code 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.

12A. In the instant case, on 9-4-1997, as indicated earlier, a petition was filed in Crl. M.P. No. 1293 of 1997, for granting leave to make this

complaint on behalf of the petitioner on the ground of sickness.

The learned Chief Metropolitan Magistrate, in that petition, on 17-4-1997, passed an order, granting leave, which is as follows :-

On a careful consideration of the reasons stated in the petition as well as on a perusal of the xerox copy of discharge certificate issued by Appollo

Hospitals in favour of the complainant Selvi J. Jayalalitha, this Court is of the opinion that Thiru V. S. Sethuraman, power of Attorney Agent of the

complainant Selvi J. Jayalalitha can be granted permission to file this complaint on behalf of the complainant Selvi J. Jayalalitha, against the

respondent Thiru Arcot N. Veerasamy and accordingly, this petition filed u/s 199 (proviso) Cr. P.C., is allowed.

It transpires from the records filed along with the complaint before the lower Court, that an unregistered power of attorney was given by the

complainant on 2-4-1997, appointing and retaining one Mr. V. S. Sethuraman, as her lawful attorney to prefer complaint before any Court, to

vindicate her rights and to appear for and prosecute and defend all actions and proceedings before any Court, in connection with the Civil or

criminal proceedings initiated on her behalf.

From the perusal of the records, it is made clear, that there is no specific authorisation given by the complainant for filing this complaint to her

agent with reference to the defamation, the subject matter of this case. The general power of attorney document executed on 2-4-1997, filed

before the lower Court on 9-4-1997, is only a general power of attorney to her agent, to participate in all the proceedings, civil or criminal on her

behalf. This document is also an unregistered one.

Admittedly there is no affidavit filed before the lower Court, either by the power of attorney agent or by the complainant, narrating the

circumstances, under which the leave was sought for. Despite all these deficiencies, the learned Chief Metropolitan Magistrate, has granted

permission by order dated 17-4-1997, under the proviso to Section 199(1) Cr. P.C., to the power of attorney to file the complaint on behalf of

the complaint on behalf of the complainant.

Having allowed the petition under the proviso to Section 199(1) Cr. P.C., the learned Chief Metropolitan Magistrate, could not hold that the

sworn statement of the power of attorney agent is not valid in law, and that the complainant cannot be exempted by permitting the power agent to

conduct this criminal case, and that therefore, no credence could be given to the permission already given by this Court.

This observation, in my view, would amount to review his own order passed earlier on 17-4-1997. Therefore, the observation with reference

to the power of attorney agent, who is a practicing Lawyer, to the effect that he attempted to mislead the Court is quite unwarranted.

It is quite preposterous to see as to how he could come to such a conclusion, after having passed a judicial order, granting leave to the power

of attorney agent, to file the complaint on behalf of the petitioner. It would have been a different matter, if he dismissed the application under the

provision to Section 199(1) Cr. P.C., on the ground that power of attorney could not be permitted, since he had no personal knowledge about the

accusation, and that the complainants also did not give specific power to file this complaint, and that the said document was also unregistered one,

and that no affidavit was filed narrating the circumstances, seeking for leave. The granting of leave could not be done for the mere asking, since it

involves careful scrutiny before passing of the orders under the proviso to Section 199(1) Cr. P.C., as it would relate to the relaxing the embargo

embodied u/s 199 Cr. P.C., for the presentation of the complaint by any other person, other than the person aggrieved. But, after having granted

permission, he could not say that the permission was an invalid one.

Therefore, I fully agree with the learned counsel for the petitioner, that this complaint could not be dismissed, merely on the basis of the alleged

invalid sworn statement given by the power of attorney agent. So, I hold in favour of the petitioner, as far as the first point is concerned.

Regarding the second point, I feel, that a little bit probe is necessary, in order to arrive at a conclusion, whether the materials given in the

complaint and other records filed along with that would be sufficient to take the complaint on file by taking cognizance of the offence.

u/s 203 Cr. P.C., ''if the Magistrate is of the opinion, after considering the statements on oath (if any) of the complainant and of the witnesses,

that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so

doing.'' Being coming to the stage u/s 203 Cr. P.C., the Magistrate has to observe the formalities as contemplated u/s 200 Cr. P.C.

Section 200 Cr. P.C., contemplates, that the Magistrate taking cognizance of the offence, on complaint, shall examine, upon oath, the

complainant, and the witnesses present, if any, and the substance of such examination shall be reduced in-to writing and shall be signed by the

complainant and the witnesses and also by the Magistrate. Some exceptions are being provided under this Section, where the complaint was filed

by the Public Servant, or when the Magistrate makes over the case for enquiry to another Magistrate u/s 192 Cr. P.C.

u/s 202 Cr. P.C., the Magistrate on receipt of a complaint of an offence, of which he is authorised to take cognizance, may, if he thinks fit,

postpone the issue of process against the accused, and enquire into the case himself for the purpose of deciding whether or not there is sufficient

ground for proceeding.

In this case, after consideration of the complaint and the sworn statement of the complainant''s power of attorney agent, the Magistrate has

come to the conclusion, that there is no sufficient ground for proceeding further. So, this Court is called upon to decide whether the order passed

by the lower Court is proper or not, in the light of the materials produced before the Court.

I have gone through the complaint, sworn statement and other records filed along with that. It is stated in the complaint, that the petitioner

issued a public statement, asking the Government to honestly investigate, instead of trying to foist the case against some other persons. It is further

stated in the complaint, that the respondent also issued a statement, in the impugned news item, stating that the petitioner was responsible for the

attack made by the culprits on Mr. T. V. Venkataraman, former Chief Secretary of Tamil Nadu, in order to escape from the ""coal deal case"", and

that the Tamil Nadu police would soon trace out the real culprits, and expose to the public, the persons responsible for the attack made on the

former Chief Secretary.

According to the complaint, both these news were published in the dailies on one and the same day. It is also stated in the complaint, that the

accusation made by the accused against the complainant in his statement issued to the Press, with regard to the import of coal, and her involvement

in the attack made on former Chief Secretary are absolutely false and totally frivolous.

In this context, it would be relevant to refer some of the averments in the complaint :-

In the course of the investigation, the police had arrested a few persons said to have been involved in the aforesaid incident. The newspapers had

carried the details of the said persons involved in the aforesaid incident. It would be seen from the said publications that the complainant had

nothing to do with assailants .....

........... When the Investigation by the police was going on, it was highly improper and mischievous on the part of the accused who is holding office

as a responsible Minister to make such false charges against the complainant, and it clearly amounts to interfering with the course of justice.

From these wordings, it would be clear, that investigation is said to be pending, till the date of filing of the said complaint. Even in the notice

issued on behalf of the complainant, on 27-1-1997, it is stated as follows :-

The allegations regarding the coal deal are all frivolous besides being unwarranted. The matter is entirely subjudice. It is very evident that you have

made the statements without any regard for truth or course of justice and which clearly amounts to gross contempt of Court and would amount to

interfering with the course of justice ...... You have made the statements knowing them to be false, even before any police investigation and it only

shows that you would resort to making any irresponsible and defamatory allegations against anyone merely to please some one in power to obtain

political gains.

This also would go to show, that the publication of the statement by the respondent/accused was said to be false, and would interfere in the course

of justice.

Nothing has been mentioned in the complaint with reference to the fact that the allegations made by the accused against the complainant was

found to be untrue, either in the investigation proceedings, or in Court proceedings. It must be also noted, that there is no averment either in the

complaint or in the sworn statement, that due to above imputation the prestige, image and reputation of the complainant has been lowered in the

estimation of the public.

According to the definition of ''defamation'' as provided in Section 499 of the Indian Penal Code, ""Whoever, by words either spoken or

intended to be read, or by sings or by visible representations, makes or punishes 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, to defame that person.

Explanation 4 to Section 499 I.P.C., runs as follows :-

No imputation is said to harm a person''s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or

intellectual character of that person, or lowers the character of that person, in respect of his caste or of his calling, or lowers the credit of that

person, or caused it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

Thus, the conjoint reading of Section 499 I.P.C., with this Explanation 4, would make it clear, that in the complaint, there shall be an averment

to the effect, that because of the imputation, the complainant''s reputation had been lowered in the estimation of others. As indicated earlier, this

important ingredient is absent in the complaint and in the sworn statement.

While interpreting Section 499 I.P.C., and Explanation 4 thereto, this Court in Mis Violet Wapshare v. Miss Maureen Fround 1970 MLW

(Crl) 4, held as follows :-

The word ""harm"" used here relates to imputations on a man''s character made and expressed to others; so as to lower him in their estimation and

anything which lowers him merely in his own estimation certainly does not constitute defamation.

In a recent Judgment of the Supreme Court in Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi 1997 CLJ 212 : 1996 AIR SCW 4030,

while answering similar question, the Apex Court after extracting Section 499 I.P.C., and Explanation 4 thereto, observed as follows at Page 214;

of Cri LJ. :-

A reading of the complaint does not contain any of the allegations constituting the offence of defamation punishable u/s 500 I.P.C. The contents of

the magazine are alleged to be defamatory against the Marwari community, lowering them in the estimate of the public or their reputation is

lowered in the society. But we do not find any allegation made in the complaint. Accordingly, we hold that the complaint filed in the Court of the

Judicial Magistrate, First Class in Court No. 4, at Pune does not contain any of the allegations so as to constitute the offence of defamation defined

in Section 499 and punishable u/s 500 I.P.C.

Therefore, in the absence of the said averment in the complaint, with reference to the fact of the reputation of the petitioner having been lowered

down in the estimation of the others, I feel that sufficient ground is not made out for proceeding further, by taking cognizance of the complaint.

In view of what has stated above, I am not able to persuade myself to differ from the view taken by the learned Chief Metropolitan Magistrate,

that there is no sufficient materials so as to enable the Court to take cognizance of the offence u/s 500 I.P.C., against the respondent/accused.

In the result, the revision is dismissed.

38 Revision dismissed.