The High Court allowed a criminal miscellaneous petition to quash the prosecution and proceedings in a criminal case concerning alleged defamation arising from burial actions, finding no cognizable offence.
The Criminal Misc. Case along with the complaint and all proceedings against the petitioners in CC 1415/2014 were quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.M.BABU
TUESDAY ,THE 14TH DAY OF AUGUST 2018 / 23RD SRAVANA, 1940
Crl.MC.No. 3818 of 2015
AGAINST THE ORDER/JUDGMENT IN CC 1415/2014 of J.M.F.C.II,NEYYATTINKARA
PETITIONER/S:
1 RT. REV.DR.M.SUSAPAKYAM AGED 63 YEARS S/O.MARIA KELLETH, ARCH BISHOP, LATIN CATHOLIC THIRUVANANTHAPURAM ATHIROOPATHA, ARCH BISHOP HOUSE,VELLAYAMBALAM, THIRUVANANTHAPURAM.
2 REV.MSGR.YOOJIN.H.PEREIRA AGED 57 YEARS VIKARI GENERAL, LATIN CATHOLIC THIRUVANANTHAPURAM AHTIROOPATHA, ARCH BISHOP HOUSE, VELLAYAMBALAM,THIRUVANANTHAPURAM.
3 REV.MSGR.E.WILFRED AGED 53 YEARS S/O.EMMILIYAS, PULLUVILA FERONA VIKARI, ST.ANDROOS CHURCH, KARUMKULAM, PUTHIYATHURA P.O.,THIRUVANANTHAPURAM.
4 VERY.REV.FR.A.GLADIN AGED 53 YEARS S/O.ALEX, SECRETARY, CONCILIATION AND ARBITRATION FORM, LATIN CATHOLIC THIRUVANANTHAPURAM ATHIROOPATHA, ARCH BISHOP HOUSE, VELLAYAMBALAM,THIRUVANANTHAPURAM.
5 JOY AGED 35 YEARS S/O.SOLOMAN, SECRETARY, ADIMALATHURA IDAVAKA PARISH COUNCIL, FATHIMA MATHA CHURCH, ADIMALATHURA, CHOWARA P.O., THIRUVANANTHAPURAM.
6 REV.FR.O.MATHYAS AGED 37 YEARS S/O.OLIVERKUNJU, ADIMALATHURA PARISH PRIEST, & PARISH COUNCIL PRESIDENT, CHOWARA P.O., THIRUVANANTHAPURAM.
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7 GEORGE AGED 74 YEARS S/O.AROKYAM, TREASURER, ADIMALATHURA IDAVAKA PARISH COUNCIL, FATHIMA MATHA CHURCH, ADIMALATHURA, CHOWARA P.O., THIRUVANANTHAPURAM.
8 JEROME DAS AGED 49 YEARS S/O.CHRIST DAS, MEMBER, ADIMALATHURA IDAVAKA PARISH COUNCIL, FATHIMA MATHA CHURCH, ADIMALATHURA, CHOWARA P.O., THIRUVANANTHAPURAM.
9 LASSER LUYIS AGED 58 YEARS S/O.SYLVESTER LUIS, MEMBER, ADIMALATHURA IDAVAKA PARISH COUNCIL, FATHIMA MATHA CHURCH, ADIMALATHURA,CHOWARA P.O., THIRUVANANTHAPURAM.
10 LEELA, AGED 50 YEARS W/O.THEERTHADAS, MEMBER, ADIMALATHURA IDAVAKA PARISH COUNCIL, FATHIMA MATHA CHURCH, ADIMALATHURA, CHOWARA P.O., THIRUVANANTHAPURAM.
11 THANKAM AGED 53 YEARS W/O.LAWRENCE, MEMBER, ADIMALATHURA IDAVAKA PARISH COUNCIL, FATHIMA MATHA CHURCH, ADIMALATHURA, CHOWARA P.O., THIRUVANANTHAPURAM.
12 JOSEPH AGED 51 YEARS S/O.ATHANAS, MEMBER, ADIMALATHURA IDAVAKA PARISH COUNCIL, FATHIMA MATHA CHURCH, ADIMALATHURA, CHOWARA P.O., THIRUVANANTHAPURAM.
13 ANTONY S/O.POULEENJU AGED 50 YEARS MEMBER, ADIMALATHURA IDAVAKA PARISH COUNCIL, FATHIMA MATHA CHURCH, ADIMALATHURA, CHOWARA P.O., THIRUVANANTHAPURAM.
14 THOMAS S/O.JOSEPH AGED 61 YEARS MEMBER, ADIMALATHURA IDAVAKA PARISH COUNCIL, FATHIMA MATHA CHURCH, ADIMALATHURA, CHOWARA P.O., THIRUVANANTHAPURAM.
15 ANTONY AGED 57 YEARS S/O.AYYAPPAN, MEMBER, ADIMALATHURA IDAVAKA PARISH COUNCIL, FATHIMA MATHA CHURCH, ADIMALATHURA, CHOWARA P.O., THIRUVANANTHAPURAM.
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16 MARIDASAN AGED 39 YEARS S/O.VARGHESE, MEMBER, ADIMALATHURA IDAVAKA PARISH COUNCIL, FATHIMA MATHA CHURCH, ADIMALATHURA, CHOWARA P.O., THIRUVANANTHAPURAM.
17 SISTER ROSITTA AGED 56 YEARS D/O.MATHEW, MEMBER, ADIMALATHURA IDAVAKA PARISH COUNCIL, FATHIMA MATHA CHURCH, ADIMALATHURA, CHOWARA P.O., THIRUVANANTHAPURAM.
18 MARIYAM D/O.AMALOLBHAVAM AGED 24 YEARS
MEMBER, ADIMALATHURA IDAVAKA PARISH COUNCIL, FATHIMA MATHA CHURCH, ADIMALATHURA, CHOWARA P.O., THIRUVANANTHAPURAM.
19 TREESA W/O.AMBROSE AGED 53 YEARS MEMBER, ADIMALATHURA IDAVAKA PARISH COUNCIL, FATHIMA MATHA CHURCH, ADIMALATHURA, CHOWARA P.O., THIRUVANANTHAPURAM.
20 BELLARMI W/O.LATE JOHN AGED 49 YEARS MEMBER, ADIMALATHURA IDAVAKA PARISH COUNCIL, FATHIMA MATHA CHURCH, ADIMALATHURA, CHOWARA P.O., THIRUVANANTHAPURAM.
21 DAMAYAN AGED 43 YEARS S/O.ANTHONYPITCHA, MEMBER, ADIMALATHURA IDAVAKA PARISH COUNCIL, FATHIMA MATHA CHURCH, ADIMALATHURA, CHOWARA P.O., THIRUVANANTHAPURAM.
BY ADV. SRI.SHAJIN S.HAMEED
RESPONDENT/S:
1 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, 682031.
2 S.PONNAYAN ROSE HOUSE, ADIMALATHURA, CHOWAR, THIRUVANANTHAPURAM DIST., 695501.
OTHER PRESENT:
R1SRI.B.JAYASURYA
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14.08.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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ORDER
Petitioners seek to quash the criminal prosecution against them. They seek the relief under Sec.482 of Cr.P.C. They are the accused in CC 1415/2014 on the file of the judicial magistrate-II, first class, Neyyattinkara. Cognizance was taken upon a complaint filed by the second respondent. The offence alleged and taken cognizance of was one punishable under Sec.500 of IPC.
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the complaint. The allegations touching the alleged defamation are contained in paragraph 5 of the complaint. What is highlighted as defamation is the action taken by the church against the persons who were allegedly responsible for the burial of the dead in a property outside the cemetery. Those allegations in annex-C complaint do not amount to defamation as defined under Sec.499 of IPC. Reading of annex-C complaint does not disclose the commission of an offence under Sec.500 of IPC. Therefore there was no material for the learned magistrate to take cognizance. Asking the petitioners to face criminal trial in such a case does amount to abuse of the process of the court. I am therefore inclined to allow the Crl.M.C.
1415/2014 on the file of the judicial magistrate-II, first class, Neyyattinkara and all proceedings in the said case as against the petitioners herein stand quashed.
Sd/-
A.M.BABU
Judge
sks/16.8.2018
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APPENDIX
PETITIONER'S/S' EXHIBITS:
ANNEXURE-A: TRUE COPY OF THE COMPLAINT DATED 12/1/2014 BEFORE THE SHO.
ANNEXURE-B: TRUE COPY OF THE REPORT BY THE CIRCLE INSPECTOR OF POLICE, VIZHINJAM CIRCLE.
ANNEXURE-C: TRUE COPY OF THE COMPLAINT IN CC 1415/2014 BEFORE JFCM II NEYYATTINKARA.
ANNEXURE-D: TRUE COPY OF THE ARCHDIOCESE CIRCULAR DATED 21/11/13.
ANNEXURE-E: TRUE COPY OF THE COMMON ORDER DATED 21/5/2015, IN CC 1415/14.
ANNEXURE-F: TRUE COPY OF THE REPLY UNDER RTI ACT DTD 8/12/14.
ANNEXURE R2(A)-CERTIFIED COPY OF THE SWORN STATEMENT OF THE COMPLAINANT DATED 19.4.2014 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT II, NEYYATTINKARA
ANNEXURE R2(B)- CERTIFIED COPY OF THE SWORN STATEMENT OF THE WITNESS PRAVEEN DATED 19.4.2014 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT II, NEYYATTINKARA
ANNEXURE R2(C)- CERTIFIED COPY OF THE SWORN STATEMENT OF THE WITNESS PUSHPAM DATED 8.5.2014 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT II, NEYYATTINKARA
ANNEXURE R2(D)-TRUE COPY OF CMP NO.1179/2015 IN CC 1415/2014 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, NEYYATTINKARA DATED 17.1.2015
ANNEXURE R2(E)-TRUE COPY OF CMP NO.1180/2015 IN CC 1415/2014 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, NEYYATTINKARA DATED 17.1.2015
ANNEXURE R2(F)-TRUE COPY OF THE BYE-LAW NO.0014/2014/CL DATED 5.11.2014 OF THIRUVANANTHAPURAM LATIN ARCH DIOCESE
ANNEXURE R2(G)-TRUE COPY OF THE MINUTES OF PARISH COUNCIL MEETING DATED 2.1.2014
ANNEXURE R2(H)-TRUE COPY OF THE STATEMENT GIVEN BY THE 6TH PETITIONER BEFORE THE INVESTIGATING OFFICER
ANNEXURE R2(I)-TRUE COPY OF THE STATEMENT GIVEN BY THE 12TH PETITIONER BEFORE THE INVESTIGATING OFFICER
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3 issues framed by the court
Whether the allegations in the complaint regarding burial of a dead person on private property amount to defamation under Section 499 IPC.
Whether there was material for the learned magistrate to take cognizance of an offence under Section 500 IPC.
Whether allowing the petitioners to face a criminal trial in this context amounts to abuse of the process of the court.
3 provisions across 2 enactments
RT. REV. DR. M. SUSAPAKYAM AND OTHERS
STATE OF KERALA
S. PONNAYAN
A.M. BABU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
