Accused sought to quash a defamation complaint based on statements in counter affidavits filed before the Munsiff Court. The High Court held that pleadings containing defamatory statements amount to publication, and whether they fall within the exceptions to Section 499 IPC is triable, not decidable under Section 482 Cr.PC.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945
CRL.MC NO. 759 OF 2016
[TO QUASH ALL PROCEEDINGS IN ANNEXURE A1 COMPLAINT IN C.C.NO.892/2012
ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-1,
CHERTHALA]
PETITIONER/ACCUSED:
XAVIER POLLAYIL
AGED 70 YEARS
S/O ANTHONY, POLLAYIL HOUSE, C.M.C.1, CHERTHALA,
ALAPPUZHA DISTRICT
BY ADV SRI.G.PRIYADARSAN THAMPI
RESPONDENTS/DEFACT COMPLAINANT AND STATE:
1 C.H.CHANDRABHANUADVOCATE, S/O C.K. HARIHARAN, CHETTICHUPARAMBIL, CMC 25, CHERTHALA, ALAPPUZHA DISTRICT2 STATE OF KERALAREPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAMBY ADVS.
R1 BY SRI.R.KRISHNAKUMAR CHERTHALA
R2 BY ADV.SEETHA S. SR. PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
05.01.2024, THE COURT ON 16.02.2024 PASSED THE FOLLOWING:
CRL.MC No.759 of 2016 2
O R D E R
This Crl.M.C is filed by the accused in C.C.No.892/2012 on the file of the Judicial First Class Magistrate Court-I, Cherthala for quashing all further proceedings in the said Calendar Case as against him. The said Calendar Case was registered based on a private complaint submitted by the 1st respondent alleging offences punishable under sections 120-B and 500 r/w. Section 34 of the Indian Penal Code (IPC). Annexure A1 is the complaint and cognizance thereon was taken by the learned Magistrate.
CRL.MC No.759 of 2016 3
as plaintiffs before the Munsiff Court, Cherthala, which was numbered as O.S.No.189/2010. The 1st accused, the petitioner herein, was the Secretary of the Rotary Club at the relevant time. Along with the suit, an interlocutory application was filed seeking an interim injunction, and on the date of filing the said suit itself, the Munsiff Court passed an interim order restraining the respondent Club therein from prohibiting the participation of the plaintiffs in the meetings of the Club. Certain other I.A.s were also filed. I.A.No.1380/2010 was filed to restrain the Club from changing the venue of the meetings from its usual place of meeting. Yet another interlocutory application, as I.A.No.2767/2010, was filed for a direction to place the attendance book in the meeting hall and not to prevent the plaintiffs in the suit from signing in the attendance book. The petitioner/1st accused filed counter affidavits to I.A.No.1380/2010 and I.A.No.2767/2010, wherein certain objectionable and defamatory imputations were made against the complainant and three others. The relevant statement in the counter affidavit filed in I.A.No.1380/2010 reads as follows :
“The members of the club are so generous that even the
CRL.MC No.759 of 2016 4
spongers or scroungers coming for food are never denied to have a share of food to their satisfaction. However such persons are not entitled to ask for the change of venue of the meetings of the Rotary Club of Sherthallai Town.”
Similarly, in I.A.No.2767/2010, the following statements were made.
“The members of the club are so generous that even the spongers or scroungers coming for food are never denied to have a share of food to their satisfaction. However such persons are not entitled to ask for the perusal of signing of the attendance book of the meetings of Rotary Club of Sherthallai Town”
The complainant alleges that the said statements were defamatory
and were made with the intention of defaming the complainant.
CRL.MC No.759 of 2016 5
the petitioner is that the averments in Annexure A1 complaint would not attract the offence under Section 500 of IPC. According to the learned counsel, the said statements were made in a counter affidavit filed before a court of law, which were intended to protect the interest of the parties to the suit, and therefore, it would fall under the exceptions contained in Section 499 IPC. It was also contended that it was only a general statement, and since several persons were attending the dinner and fellowship without invitation, under no circumstances the said statement could be treated as one made against the complainant, the 1st respondent herein. Therefore, the locus standi of the 1st respondent to submit a complaint was also challenged. The learned counsel places reliance upon the decision rendered in Ramakrishnan v. Subbaramma Sastrigal [1986 IC 705], Sunil Kumar Reddy C. and Another v. State of Andhra Pradesh and Another [2022 KHC 3929] and Srinibash Ranjan Mishra and Ors. v. State of Jharkhand and Another [2016 KHC 4416] rendered by Jharkhand High Court.
CRL.MC No.759 of 2016 6
the petitioner cannot be considered in a proceeding under section
482 Cr. PC. The questions raised are touching upon the exceptions to section 499 of IPC which can be decided only during the course of trial. The learned counsel also places reliance upon the decision rendered by this Court in Raman Namboodiri v. Govindan [1962 KLT 538] , the order passed in Crl.M.C.No.534/2016 and the decision rendered by the Calcutta High Court in Atul Kumar
Pandey v. Kumar Avinash [MANU/WB/0557/2020] .
CRL.MC No.759 of 2016 7
Madras 363] and the decision rendered by this Court in Prabhakaran v. Gangadharan [2006(2) KLT 122] has categorically held that, if the pleadings filed in a court containing defamatory statement, it amounts to publication. In the decision in Varghese Cor Episcopa v. State of Kerala [2020(1)KHC 390] also, it was held that the statement made in a counter affidavit filed in a writ petition before this Court may also attract the offence under section 499 IPC if it contains defamatory statement. Thus, the legal proposition is very clear as per which, merely because the statement happened to be made in a counter affidavit submitted before a court of law, that would not enable the accused to contend that the same is not a publication which attracts the offence under Section 499 r/w. Section 500 of IPC. As held in Prabhakaran’s case (supra), this Court has categorically held that if the pleadings filed in a court contain a defamatory statement, it amounts to publication. Thus, the contention raised by the learned counsel for the petitioner in this regard is only to be rejected.
CRL.MC No.759 of 2016 8
exceptions. However, the question whether the statement which is the subject matter of a complaint falls in any of the exceptions to
section 499 IPC is a matter which cannot be decided in a proceeding under section 482 Cr.PC. To establish the ingredients of the exceptions provided in the said provision, an appreciation of the evidence is to be made. The same can only be done after examining the materials adduced by either party after the trial. In Ramakrishnan’s case (supra), which was relied on by the petitioner, of course, this Court has laid down the circumstances under which the exceptions have to be examined. However, the said decision has been taken in a Crl.RP, filed against the conviction of the accused therein after a full-fledged trial.
CRL.MC No.759 of 2016 9
Cherthala Bar, and the suit was instituted in the very same Court. The pleadings alleged to have been contained were also filed in the said suit. Evidently, the copy of the said pleadings must have been served to the other parties to the proceedings. Therefore, the circumstances under which the observations made by the Andhra Pradesh High Court were completely different from that of the present case, particularly because he was a practising lawyer of the very same Bar.
CRL.MC No.759 of 2016 10
therein. Therefore, the prima facie view that can be adopted is that the said statements were made against the specific averments made in the affidavit filed by the plaintiff in support of his prayer, and therefore, under normal circumstances, it can only be aimed at the plaintiff. However, it is a matter to be finally decided by the trial court after considering the evidence to be adduced in this regard, and the said question cannot be decided at this juncture.
Therefore, I do not find any scope for interference in the proceedings at this stage. Accordingly, this Crl.M.C. is dismissed. However, it is clarified that none of the observations made in this order were intended to decide any of the issues between the parties. On the other hand, it was only an attempt to find out whether any prima facie case is made out by the petitioner for
CRL.MC No.759 of 2016 11 invoking the inherent power of this Court under section 482 Cr.PC.
It is further clarified that all the contentions raised by the respective parties are left open, which shall be decided by the learned Magistrate, untrammelled by any of the observations made in this order.
Sd/ZIYAD RAHMAN A.A. JUDGE
pkk
CRL.MC No.759 of 2016 12
APPENDIX OF CRL.MC 759/2016
PETITIONER‘S ANNEXURES
ANNEXURE A-1: CERTIFIED COPY OF THE
COMPLAINT FILED BY THE 1ST RESPONDENT IN C.C
892/12 OF JFCM COURT-I, CHERTHALA
2 issues framed by the court
Whether defamatory statements in a counter affidavit filed before a court constitute 'publication' under Section 499 IPC.
Whether exceptions to Section 499 IPC can be adjudicated in a quashing proceeding under Section 482 Cr.PC.
Colour shows how this judgement treated each authority
Ramakrishnan v. Subbaramma SastrigalDistinguished¶8
Ramakrishnan v. Subbaramma Sastrigal [1986 IC 705]
Sunil Kumar Reddy C. and Another v. State of Andhra Pradesh and AnotherDistinguished¶9
Sunil Kumar Reddy C. and Another v. State of Andhra Pradesh and Another [2022 KHC 3929]
Srinibash Ranjan Mishra and Ors. v. State of Jharkhand and AnotherReferred
Srinibash Ranjan Mishra and Ors. v. State of Jharkhand and Another [2016 KHC 4416]
Raman Namboodiri v. GovindanReferred
Raman Namboodiri v. Govindan [1962 KLT 538]
Atul Kumar Pandey v. Kumar AvinashReferred
Atul Kumar Pandey v. Kumar Avinash [MANU/WB/0557/2020]
Thangavelu Chettiyar v. PonnammalRelied on¶7
Thangavelu Chettiyar v. Ponnammal [AIR 1966 Madras 363] · Who else cites this
Prabhakaran v. GangadharanRelied on¶7
Prabhakaran v. Gangadharan [2006(2) KLT 122]
Varghese Cor Episcopa v. State of KeralaRelied on¶7
Varghese Cor Episcopa v. State of Kerala [2020(1)KHC 390]
3 provisions across 2 enactments
Xavier Pollayil
C.H. Chandrabhanu
State of Kerala
Ziyad Rahman A.A.
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court