(Prayer: Petition (disposed of on 13-8-1957) under Ss. 435 and 439 Criminal Procedure Code, 1898, praying the High Court to revise the order of the Addl. First Class Magistrates Court, Pollachi, dated 15-4-1957 in M.P. No. 67 of 1957 in C.C. No. 88 of 1957. )

This is a revision which has been preferred against the order made by the Additional First Class Magistrate, Pollachi, M.P. No. 67 of 1957 in C.C. No. 88 of 1957.

The first respondent before us Thangavelu stood for election to the Madras Legislative Assembly in the recent general elections. He was the nominee of the Praja Socialist Party supported by the Communist Party, and was being opposed by the Congress Party candidate. In these circumstances a printed notice was published and circulated by the revision petitioners before us. That notice contained a series of rhetorical questions whether it was true or not that this Thangavelu used to receive money and withdraw from contest in elections. Beyond these rhetorical questions no particulars are mentioned which would enable this Thangavelu to refute them. In fact this Thangavelu in his evidence as P.W. 1 in the lower Court has categorically denied all those allegations and has given adequate explanations for his withdrawals at the end. Thangavelu filed a complaint for an offence under S. 500, Indian Penal Code, against the revision petitioners for statements which are per se defamatory. They then filed an application M.P. No. 67 of 1957 in the lower Court for dropping further proceedings on the ground that the complaint would fall under S. 171-G, Indian Penal Code which requires for its maintenance the sanction of the Government under S. 196, Criminal Procedure Code. The learned Magistrate held that the offence would fall under S. 500, Indian Penal Code, and required no previous sanction of the Government and dismissed the application. Hence this revision.

In revision I am of the same opinion as the learned Magistrate and here are my reasons.

False statements of fact in relation to the personal character or conduct of a candidate are penalised by S. 171-G, Indian Penal Code, which corresponds to S. 1 of the Corrupt and Illegal Practices Act, 1895, (58 and 59 Vic. Ch. 40). In fact acknowledgment of the same is made in the Statement of Objects and Reasons; See Gazettee of India, Part V, dated 3rd July, 1920, page 13

5. It is set out in S. 123(5) of the (Indian) Representation of People Act, 1951.

The publication by a candidate or his agent, or by any person with the connivance of the candidate or his agent, or any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidates election.

This section penalises the publication of a false statement of fact or election lies concerning the personal conduct or character of a candidate. This offence may be committed by any person or association, whether corporate or incorporate. The section does not apply to defamatory statements about persons who are not candidates [Narayanaswami v. Devaraja A.I.R. 1936 Mad. 316 [LQ/MadHC/1935/327] =1935 M.W.N. 1164.].

Two things are essential. It must be a statement of fact and relate to the personal character of a candidate. Secondly, the section would not be contravened where the statement was a statement not of a fact but merely of opinion unless the expression of opinion was supported by instances. Such reference must not be merely inferential.

An offence under S. 171-G, is not a species of the more general offence of defamation and the Section cannot be said to have been carved out of S. 499, I.P.C. There may be cases under S. 171-G of the Code, which do not fall under S. 499 and vice versa . It cannot therefore be insisted that the complainant should proceed against the accused in respect of the offence under S. 171-G and not under S. 499 (3) I.P.C.: Bhagolall v. Emperor A.I.R. 1940 Nag. 249=41 Crl. L.J. 734.

No prosecution can be initiated for an offence under S. 171-G without the sanction of Government as provided in S. 196, Crl. P.C. But it is only when the offence strictly falls within the purview of this section that a sanction is necessary. Therefore where the statement is merely defamatory and does not fall under this section no sanction is necessary.

To sum up, an offence in order to fall under S. 171-G, the points required to be proved are:



1. That an election was impending.

2. That the accused made or published a statement.



3. That it purported to be a statement of fact.



4. That it related to the personal conduct or character of a candidate.



5. That he published it with intent to prejudice his election.

6. That it was false or that the accused had no reasonable grounds for believing it to be true.

To conclude, in the language of Parkers Election Agent and Returning Officer, there is no special privilege attached to speeches made during an election.

A speaker has full freedom of speech on matters of public interest and general concern. He may express his honest opinion however adverse of the policy or public conduct of any public man and his comments if uttered fairly with an honest purpose and not maliciously are not actionable even though they may affect the reputation of individualsThe mere fact that this opponent is also a candidate for election to Parliament does not give the speaker a right to discuss all his private life and history.

Unless a speaker is in a position to show that he had good reason such as would convince a man of ordinary common sense to believe the truth of the statement he proposes to make such statement had better be left unsaid. The political address or the public carier of speeches of his rival are fair subjects for bona fide discussion and unfavourable comments are privileged. He should not however allude to the private life or circumstances of any candidate. He should always bear in mind the distinction between criticism and allegation of fact.

It was one thing to comment upon or criticise even with severity the acknowledged or proved acts of a public man and quite another to assert that he has been guilty of particular acts of misconduct. [ Davisv. Sheptstone 11 A.C. 187.See also Barley v. Edmons (1895) 1 T.L.R. 537., Silver v. Benn (1896) 2 T.L.R. 199., St. Georges, 1896-5 0M and H. 104; Monmouth, 1901-5 0M and H. 171; Cockermouth, 5 0M and H 155: RogersonElections, 19th Edn., P. 559-560; Halsbury, Hailsham Edn. Vol. 12, page 219 and foll;

The Madras decisions on this subject may be briefly noticed. In Radhakrishna v. Emperor A.I.R. 1932 Mad. 511 [LQ/MadHC/1932/26] =35 L.W. 753., a Bench of this Court held that for an offence under S. 171-G, something must be stated as a fact, and not as a general imputation or matter of opinion. In other words, where the bulk of the evidence consisted of mere general expressions, the offending document would not fall under S. 171-G. Statements of fact are those statements of the falsity of which prima facie proof is possible.

In Narayanaswami v. Devaraja Mudaliar A.I.R. 1936 Mad. 316 [LQ/MadHC/1935/327] ., it was held that general charges of misconduct are not statements of fact within the meaning of S. 171-G, I.P.C., and that though one of the statements may be construed as a statement of fact when the other statement was a general imputation of misconduct unaccompanied by any charge of particular acts not amounting to statement of fact, this would not fall under S. 171-G., I.P.C.

In Mohamed Kadir v. Rahimatullah A.I.R. 1940 Mad. 230 [LQ/MadHC/1939/75] ., it was held that the publication by one of the contestants to an election that the other contestant is a leper, knowing it to be untrue with the mala fide intention of injuring the latters reputation and humiliating him before the public does not constitute an offence under S. 171, Crl. I.P.C.

In Narayana Iyer v. Veerappa Pillai (1950) M.W.N. Crl. 282., it has been held by a Full Bench of this Court that where an alleged offence falls both under S. 193 and S. 500, I.P.C., a complaint of the Court under S. 195(1), Crl. P.C. is not necessary to enable the Magistrate to take cognizance of a complaint under S. 500, alone.

The Indian Law on this subjectS. 171-G and S. 123(5) of the Representation of the People Act will be found fully discussed on, Ratan Lal. Law of Crimes, 16th Edn. p-401; Dr. Nandlals The Indian Penal Code, Vol. I, p. 842; V.B. Raju, I.C.S. Penal Code, p-551 (1957); Dr. Sir Harisingh Courts Penal Law of India, 6th Edn. 1955, Vol, I, p. 725 and the uptodate and very useful M.L.J. publication, the Representation of the People Act by Messrs. R. Srinivasan and R. Mathurbhutham at pages 278 and following, giving useful extracts from Indian Election Cases by Sen and Poddar page 451 and Hammond Indian Candidate and Returning Officer, page 278 and citing Agra City [N.M.O. (1925) case (Hammond)]; Bulandasar District West (Hammond, p. 233), West Coast and Nilgiris (Hammond) p. 709 and Bihar and Orissa Landholders, 1945, page 129, Birbhun page 250. Gorakhpur North, page 330 and Hyderabad North P. 406 from Sen and Poddar Indian Election Cases for the type of statements hit by S. 123(5).

Therefore the conclusion of the learned Magistrate that the allegations on which the complaint is now confined cannot be construed as a statement of facts is, correct.

This revision case is dismissed.