V.S Achuthanandan v. P.S Varughese And Another

1. Shri. V.S Achuthanandan, leader of opposition in the Kerala Legislative Assembly, is now an accused in a criminal case indicted on a charge for the offence of defamation under Section 500 of the Indian Penal Code. The complaint against him has been filed by the respondent before the Court of a judicial magistrate of first class. Respondent describes himself as Vice President of a local unit of Bharathiya Janatha Party (BJP). This petition is filed under Section 482 of the Code of Criminal Procedure (for short ‘the Procedure Code’) to have the complaint quashed: In the complaint, it is alleged that the petitioner made an imputation against B.J.P to the effect that Shri. K. Karunakaran (present Chief Minister or Kerala) has paid lakhs of rupees to BJP for winning the last general elections. According to the complainant, the said imputation is a culumni which was hurled for damaging the reputation of the party and it has inflicted insult and loss of reputation to him as well as to the BJP workers like him.

2. Upon the said complaint learned magistrate took cognizance of the offence and issued process to the accused. Petitioner contends that learned magistrate ought not have taken cognizance of the offence upon the said complaint as the complaint cannot be regarded as a person aggrieved by the imputation.

3. In the complaint, BJP is described as a party consisting of lakhs of followers. However, complainant was not mentioned in the imputation expressly or even impliedly, nor has there been any reference to any office bearer or follower of BJP. Petitioner contends that the complaint was filed only for gaining publicity and that no purpose will be served by keeping the complaint on file. Institution of criminal proceedings on the alleged statement is a sheer abuse of process of law, according to the petitioner.

4. Under Section 499 of the Penal Code (which defines the offence of defamation), the imputation should have been made or published “concerning any person intending to harm (or knowing or having reason to believe that such imputation will harm) the reputation of such person.” However, Explanation 2 of the Section further expanded its amplitude by providing that “it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.” Has there been no such explanation, there is little scope to contend that the offence could be committed against any collection of persons. How far the said explanation would protect the complainant's case, is the point which calls for consideration in this petition.

5. Section 199 of the Procedure Code contains a ban that no court shall take cognizance of the offence of defamation except on a complaint made by “some person aggrieved by the offence”. Hence the expression “some person aggrieved by the offence” has a perceptible bearing on the question involved here. The words “Association or collection of persons” in Section 499 of the Penal Code have to be understood in conjunction with the expression “person aggrieved”, though the two expressions are in two different codes. “Collection of persons” is an elastic expression as it may apply to a very small unit as well as to a huge miss of people. In other words, it can have a limited construction and a very wide connotation. If it stretches to the latter its frontiers can transcend even beyond the frontiers of a nation, eg. the expression “Indians” can be termed as denoting to a collection of people residing in and outside the country. It is certainly not in that wide sense that legislature-would have used the expression “association or collection of people”. Otherwise, if somebody makes an imputation against Indians as a whole, every Indian would be entitled to file complain in a magistrate court of his own choice. Similarly, if somebody makes an imputation against Keralites, every Keralite can file complaint in any one of the magistrate courts in Kerala. The consequence would be that criminal courts would be inundated with such complaints on one cause of action. Hence the expression “collection of people as such” in Section 499 of, the Penal Code cannot be construed with such wide connotation.

6. The legal position in England on this aspect stood well settled with the decision of House of Lords in Knupffer v. London Express News paper Limited [1944 Appeal Cases 116]. The newspaper published an article in 1944 which was an imputation concerning Russian residents in England. The offending passage read like thus: “The quislings on whom Hitler flatters himself he can build a pro-German movement within the Soviet Union are an emigre group called Mlado Russ or Young Russia. They are a minute body professing a pure Fascist ideology who have long sought a suitable fuehrer—I know with what success …………………” A Russian resident in London brought an action for libel. The trial court upheld the complainant's plea, but the Court of Appeals reversed it. In the House of Lords, the case was heard by a bench of 5 law Lords. They made a reference to the well known dictum of Willes, J. in Eastwood v. Holmes that “if a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is something to point to the particular individual”. In the opinion of Lord Chancellor Viscount Simon “there are cases in which the language used in reference to a limited class may be reasonably understood to refer to every member of the class, in which case every member may have a cause of action”. Lord Atkin observed that “the reason why a libel published of a large or indeterminate number of persons described by some general name generally fails to be actionable is the difficulty of establishing that the plaintiff was, in fact, included in the defamatory statement, for the habit of making unfounded generalizations is ingrained in ill-educated or vulgar minds, or the words are occasionally intended to be a facetious exaggeration”.

7. Lord Russel of Killowan stated thus:

“All that can be said is that a person who read it and who knew that the appellant was a member of the body would know that he was one of the numerous individuals from whose ranks Hitler hoped at some time to nominate a puppet fuehrer in Russia. Nothing more than that. That is really all that I can attribute as the meaning of the answers given by the appellant's friends to the carefully worded and stereotyped question of the appellant's counsel, viz., “To whom did your mind go when you read that article?” In my opinion, it is impossible to construe the article in any way which would justify the view that it contained defamatory matter published of and concerning the appellant”.

8. The aforesaid position held in England has been adopted in India although there is a statutory provision in India like Section 499 of the Penal Code with its Explanation 2. The legal position has been settled in G. Narasimhan v. T.V Chakkappa ((1972) 2 SCC 680 : AIR 1972 S.C 2609) when Shelat, J. who spoke for the Bench said: “It is true that there is an express statutory provision, as in S. 499 Expl. (2), the rules of the Common Law of England cannot be applied. But there is no difference in principle between the rule laid down in Explanation (2) to S. 499 and the law applied in such cases in England”. In that case the imputation published in “the Hindu” news paper concerning “Dravida Munnetta Kazhakam” was complained against by one of its members. Supreme Court while quashing the complaint laid down the ratio thus: “A defamatory imputation against a collection of persons falls within Explanation 2 to Section 499 of the Penal Code. But when that Explanation speaks of a collection of persons it must be a definite and a determinate body so that the imputations in question can be said to relate to its individual members or components”.

9. This court said so when late Shri. C.H Kanaran, who was the Secretary of Marxist Communist Party, filed a complaint against one imputation made on Marxist Party, (vide Krishnaswami v. Kanaran, 1972 K.L.T 145). Following the ratio in G. Narasimhan's case (cited supra) this court quashed the complaint filed by one Chacko regarding the imputation made against “Syrian Christians” (Narayana Pillai v. Chacko, 1986 KLT 1005). Thus the law is well settled that if the collection of persons is indefinite and indeterminable or interminate, no complaint can be filed by an individual member for the offence of defamation unless he shows that the imputation refers to him in particular. Respondent has stated in the complaint that BJP is having lakhs of followers. Complaint did not say in the complaint as to how the imputation makes any particular reference to him as a member of BJP.

10. For the aforesaid reasons, I hold that it would be an exercise in futility to proceed with the enquiry or trial into the complaint filed by the respondent. I therefore, quash the proceedings adopted by the learned magistrate upon the complaint. Cr 1. M.C is disposed of accordingly.