Defamation case against wife

Before V. Ramkumar, J
Monday, the 22nd day of March 2010/1st Chaitra 1932

Party Array / Case No.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 2918 of 2009()


1. SHYBIMON, S/O.DIVAKARAN, PUTHEN
                      ...  Petitioner

                        Vs



1. HARIDAS, S/O.CHELLAPPAN, PUTHAN
                       ...       Respondent

                For Petitioner  :SRI.B.PRAMOD

                For Respondent  :SRI.R.AZAD BABU

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :22/03/2010

Judgement

 O R D E R
                         V. RAMKUMAR, J
               .................................................
                 CRL.R.P. NO. 2918 OF 2009
            ........................................................
              DATED: 22nd day of March, 2010

                                    ORDER

         The revision petitioner who was the complainant in a

 private complaint filed as C.M.P. No. 2480 of 2009 before the

 J.F.C.M. I, Cherthala, alleging            offences       punishable under

 Sections 500 and 501 I.P.C. against the Ist respondent herein,

 challenges the order dated 20-8-2009 passed by the Magistrate

 dismissing the complaint presumably under Section 203 Cr.P.C.

 after recording the sworn statement of the complainant.

     2.    Eventhough the accused to whom no process was

issued by the Magistrate, has no right to be heard in this

revision, since the revision petitioner had made the accused a

party respondent and also since this Court ordered notice to him,

I also heard Advocate Sri.Azad Babu on behalf of the Ist

respondent/accused.

                    THE BACKGROUND FACTS



     3.    The facts leading to the filing of the aforesaid

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complaint can be summarised as follows:



          A) O.S. No. 555 of 2008        before the Munsiff's Court,

             Cherthala was a suit filed by the complainant's mother

             Kaumari      and the complainant against         the Ist

             respondent herein (accused) and      his wife seeking a

             declaration of the right of easement over a way and also

             for consequential injunction.    There was an interim

             prohibitory injunction granted by the Civil Court in

             favour of the complainant and his mother.


          B) Alleging that the interim injunction was violated by

             the defendants by causing obstructions to the way in

             dispute the plaintiffs filed a petition for an interim

             mandatory injunction. Eventhough the said application

             as opposed, the Civil Court allowed the application.

             Accordingly, an interim mandatory injunction was

             granted and the same was implemented and the status

             quo ante was restored.


         C) The defendants filed an application before the Civil

             Court to vacate the orders of interim prohibitory as well

             as      mandatory injunction. That application       was

             supported by an affidavit filed by the Ist defendant (Ist

             respondent) herein. According to the complainant,

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             paragraphs 4, 5 and 9 of the said affidavit contained

             defamatory allegations against the complainant. I am

             only quoting the opening portion of paragraph 9 of the

             said affidavit which reads as follows:-


                  "







                                           "

        Transalation


                      "The second plaintiff (revision petitioner herein)
                     is a thief and a lecher who cannot be permitted
                     to set his foot on the courtyards of houses where
                     ladies of honour and self esteem reside. He is an
                     immoral and anti-social person who has amassed
                     wealth undeservingly through illicit distillation,
                     bootlegging etc. and carries on in the company
                     of such elements.      He is a criminal who is
                     prepared to commit any heinous act".


         D) Eventhough the complainant sent a lawyer notice to
           the accused requesting him to withdraw the false
           imputations made against the complainant, he has not
           only acceded to the said request but has also caused a
           reply notice to be sent through his lawyer reiterating his
           stand and raising untenable contentions. Thereupon the

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           complainant filed the aforesaid private complaint before
           the     Criminal Court alleging that the Ist defendant/Ist
           respondent has committed the offence of defamation as
           defined under Section 499 I.P.C. and punishable under
           Sections 500 and 501 I.P.C.




                        ARGUMENTS FOR THE ACCUSED

        4.     Advocate    Sri.Azad   Babu,   the  learned   counsel

appearing for the Ist respondent/accused made the following

submissions before me in support of the impugned order

dismissing the complaint:-

               The mere filing of an affidavit before the Civil Court

after giving a copy of the same to the complainants' counsel

will not amount to          "publication" for the purpose of Section

499 I.P.C. Even assuming that the statements in the affidavit

are defamatory, as rightly observed by the Court below, those

statements enjoy absolute privilege since they were made in the

course of judicial proceedings.        (Vide Gopalankutty Nair v.

Sankunni Ezhuthassan - 1971 KLT 393 F.B.). There is no

evidence available at present to show that the imputation in

question has lowered the reputation of the complainant in the

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estimation of others as required under Explanation 4 to Section

499 I.P.C. In any view of the matter, the statement in question

may fall under the Fourth, Fifth or Nineth Exception to Section

499 I.P.C. so as to take it out of the offence of defamation.

Moreover,            as was held by the Madras High Court in

Gurubasayya v. Siddalingappa - AIR 1940 Madras 677, the

complaint ought to have been filed by the Civil Court.



                        JUDICIAL EVALUATION

         5.     I am afraid that I find myself unable to agree with

the above submissions made on behalf of the           accused. The

learned Magistrate has also substantially based his order on the

aforementioned grounds.

         6.    "To publish" means to make known to others or to

communicate to a third person. (See Webster's Comprehensive

dictionary - International Edition). Publication will be complete

if after making or printing the defamatory statement, it is made

available to the public. (Vide Collector of Central Excise v.

New Tobacco Company and Others - (1998) 8 SCC 250).

Publication includes pleadings, affidavits etc. which are filed in

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Courts.        (In Re Ajay Kumar Pandey, Advocate (1998) 7

Supreme 473). The filing of an affidavit is publication. An

affidavit is not a secret document. It forms part of the Court

records and is available to and accessible by the Public. (See

J.R. Parashar, Advocate and Others v. Prasant Bhushan,

Advocate and Others (2001) 6 SCC 735). Once a statement

is filed in a Court of law such statement can be taken as

published (See Prabhakaran v. Gangadharan - 2006 (2)

KLT 122).

        7.     If a party to a judicial proceeding is prosecuted for

the criminal offence of defamation in respect of a statement

made in such judicial proceeding either on oath or otherwise,

his criminal liability must be determined by reference to the

provisions of Section 499 I.P.C. alone. The English common law

doctrine of absolute privilege can be set up as a defence only in

a suit for damages under the Law of Torts. No such privilege is

recognized by the Indian Penal Code beyond the limits of the

Exceptions embodied in Section 499 of the Indian Penal Code.

The said provision together with its Exceptions             forms a

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complete Code in itself with regard to the criminal liability of

a person accused of the offence of defamation.               Every

defamatory statement not coming within any of the 10

Exceptions to Section 499 I.P.C. is punishable under Section

500 I.P.C.        The Court cannot engraft thereupon any   further

exceptions derived from the common law of England or based

on grounds of public policy.     (See also Haji Ahmad Hussain

v. State - AIR 1960 Allahabad 623 = 1960 Crl.L.J. 1296).

Ordinarily, the question as to whether the statement in a given

case falls under any of the ten Exceptions to Section 499 I.P.C.

will have to be decided only after trial and the burden to bring the libel or slander under any of those Exceptions is, by virtue ofSection 105 of the Indian Evidence Act, on the accused. The

accused may discharge the said burden by means of

preponderance of probabilities.       (See Chinnakuttan Nair v.

Kumaran Nair - 1963 KLT 845; Jose v. Thankappan - 1963

KLT 1071; Chandrasekhara Pillai v. Karthikeyan - ILR

1964 Kerala 31; Dasgupta v. State of West Bengal -1968

KLT (SN) 21 (SC) and Narayanan v. Gangadharan - 1982

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KLT 378).

        8. As mentioned earlier the English Common law doctrine

of privilege is a defence available in a suit for compensation for

defamation under the Law of Torts. Privilege is of two kinds -

absolute and qualified. In cases of qualified privilege it is the

occasion which protects the man who speaks out his mind fully

and frankly without any fear of consequences.             No    action

under the civil law will lie in respect of a false and defamatory

statement even if made with express malice if such statement is

absolutely privileged. Instances when such statements enjoy the

immunity of absolute privilege are when made in the course of -

                          i) Parliamentary proceedings.
                          ii) Judicial proceedings
                          iii)Military and Naval Proceedings
                          iv)State Proceedings (Eg. communications
                              relating to State matters made by one
                              Minister to another or to the Crown, a
                              report made by a     Police Officer to a
                              Magistrate under Section 202 Cr.P.C.
                              etc.)

[Vide pages 294 and 295 of the Law of Torts _ Ratanlal and

Dhirajlal - 25th Edition.]        Gopalakrishnan Nair v. Sankunni

Ezhuthassan (Supra) and Daniel v. Hymavathy Amma

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-1985 KLT 574) are authorities which elucidate the nature and

extent of absolute privilege. It is pertinent to note that going by

the ratio in Daniel's Case (Supra) even under the civil law of

defamation, if the offending statement was absolutely irrelevant

or was made de hors the matter in hand or had no reference to

the matter under inquiry, such statement cannot enjoy                 the

status of absolute privilege.

        9.     In cases of qualified privilege, it is not enough if the

plaintiff shows that the offending statement             was false   and

defamatory, but the plaintiff will have to further prove that the

statement was made with express malice.

          (1) Communications made -
                         i) in the course of legal, social or moral duty
                         ii) for self protection
                         iii)for protection of common interest
                         iv)for public good
                                       and
          (2) reports of Parliamentary and judicial proceedings and
          proceedings at public meetings etc.


          are instances of qualified privilege if the communications
          or reports are made without malice (Vide Law of Torts
          (supra) - pages 294 to 304).

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       10.     Pargraphs 8 in Narayanan's case (supra) - 1982

KLT 378 will indicate that actual loss of reputation need not be

proved. An accused person, as in this case, who takes shelter

under Exception 9 to Section 499 I.P.C. will have to show that

the imputation was made in good faith. In order to claim good

faith the accused must show that before making the imputation

he had made inquiries with due care and attention and that he

was satisfied about the truth of the imputation made by him.

(Vide Sukra Mahto v. Basudeo Kumar - AIR 1971                 SC

1567).

           11. AIR 1940 Madras 677 relied on by the learned

counsel for the Ist respondent cannot obviously apply to the facts

of the present case. In the Madras case the private complaint

though styled as one alleging defamation was really one

involving       the commission of an offence punishable under

Section 193 I.P.C. If so, by virtue of Section 195 (1) (b) (ii)

Cr.P.C. the Court alone could have figured as the complainant.

        12. The result of the foregoing discussion is that none of

the reasons mentioned by the Cou rt below constitutes a valid

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ground for dismissal of the complaint. The learned Magistrate

who had taken cognizance of the offence should have        issued

process to the accused under Section 204 Cr.P.C. The impugned

order dismissing the complaint is set aside. C.M.P. 2480/2009

will stand restored to file and shall be assigned an appropriate

number and shall be dealt with in accordance with law. This

Court shall not be taken as having made any observation on the

merits of the case.

       In the result, this Crl.R.P. is allowed as above.

       Dated, this the 22nd day of March, 2010.




                                     V.RAMKUMAR, JUDGE



ani/                                      .

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