ORDER
1. Petitioner F. A. Poncha, is the sole accused in C.C. No. 2981 of 1990 pending on the file of IX Metropolitan Magistrate, Saidapet, initiated on a private complaint preferred by respondent Meherjee, alleging that the petitioner has committed an offence punishable under section 500 I.P.C.
2. In this petition preferred under section 482 Cr.P.C. to call for the records and quash the pending prosecution as not maintainable and an abuse of process of Court, Mr. M. Ravindran, learned senior counsel, contended that there was no publication of the defamation alleged, for not even the name of any single member, to whom publication was made, does get itself revealed, from the averments made in the complaint. Further, the complaint does not disclose the reaction of those unnamed members. He contended that the letter despatched by the petitioner was not so done with intent to defame, but with sustaining interest, that racing must be clean and members of the public should not be cheated. He then urged that list of witnesses had not been appended to the complaint and that was against the mandate of Section 204 Cr.P.C. In passinng, he mentioned, that, on the available facts, Explanation-4 to Section 499 I.P.C., must be taken note of, as to when exactly an imputation can be said to harm a person’s reputation.
3. On these grounds, I have heard Mr. Satheesh Parasaran, learned counsel representing the respondent. He pointed out, that the averments in the complaint, will clearly indicate the persons identifiable, to whom defamatory allegations, had been forwarded. He also submitted, that harm to the reputation of the respondent has been averred, though not in a very detailed manner. He submitted, that the confidential letter dated 19-8-1989, forwarded by the petitioner along with this communication, was quite sufficient, at-least prima facie, to indicate mens rea of the petitioner, to commit the offence alleged. He argued, that the definite allegation, of the defamatory letter, having been forwarded to a set of determinate group of people, would be sufficient to constitute publication, in the eye of law. He admitted, that a list of witnesses had not been appended to the complaint, but added, that such non-listing cannot be held to be prejudicial to the case of the petitioner, for, before the commencement of trial, it will always be open to the Magistrate to direct a list of witnesses to be furnished, so that the petitioner may not be taken unawares, in the process of trial.
4. To appreciate the divergent contentions, it will be necessary to have a quick look into the averments made in the complaint and the sworn statement of the respondent. Since no other document, except the alleged defamatory letter and its enclosure, have been appended to the complaint, question of considering further documentary evidence, will not arise at this stage.
5. Respondent has stated in his complaint, that he was working as a handicapper in the Royal Western Turf Club, Bombay. He voluntarily retired from service, of the Royal Western Turf Club, Bombay, on and from 31-10-1989. Subsequent to his retirement, he was honoured by the said Club, for the meritorious services rendered by him. In January, 1990, he was appointed as Senior Racing Official by the Madras Racing Undertaking, now taken over and under the control of the Government of Tamil Nadu managed by a committee of respected public men. The averments in the complaint further show, that the petitioner with a deliberate intention to lower his reputation and dignity in the minds of right thinking people and more particularly in the minds of the Royal Western Turf Club, caused a publication by his letter dated 26-12-1989, which was sent to all the members of the aforestated Club, who were residing in Madras. The complaint also shows, that those members of the Club, who were residing at Madras, had received the said letter. The further allegation is that the respondent came to understand from those members, who are residents of Madras, about the communication received by them, from the petitioner, casting aspersions on his intergrity. Then the complaint narrates in brief, the contents of the defamatory letter despatched by the petitioner. Thereafter, respondent has stated that no resolution was passed by the Club taking any decision, holding, that he was guilty of betting. An averment has been made in the complaint that the contents of the notice were deliberately false and had been made with an intention to harm the reputation enjoyed by the respondent and to defame him. Certain other serious imputations made against the respondent also form part of this complaint. Respondent claims in the complaint, that he issued a notice to the petitioner seeking an apology for his conduct. Though such letter was served on the petitioner, he had not cared either to reply or apologise. Then, the complaint reads, that in view of the publication of the letter within the jurisdiction of the concerned Magistrate, the reputation of the complainant has been greatly affected and that many members were discussing and asking the friends of the complainant about the allegations in the letter and were also believing the statements and imputations made by the accused against him, which has caused serious damage to his reputation. Thereafter, the complaint states that by virtue of the said publication, the accused had deliberately, within intention to cause harm to the reputation of the complainant, has caused serious damage to his reputation, which has affected his standing as a senior official of the Madras Racing Club.
6. Sworn statement was recorded on 23-4-1990, the date on which the complaint was filed. The sworn statement, in fact, is in pari-materia with the averments made in the complaint.
7. Prima facie, the averments made, in the letter dated 26th December, 1989 forwarded by the petitioner to the club members casting aspersions on the respondent and others, can be termed ‘defamatory’. If certain other portions of the letter indicate, the object and purpose of the letter forwarded by the petitioner to some club members, the effect of such object or purpose and its falling within one or other of the exceptions to Section 499 I.P.C., may have to be relegated, to be appreciated and considered by the trial Magistrate, after sufficient evidence is brought on reecord. At the moment, the contention of respondent’s counsel, that there was no bona fides in the petitioner, having forwarded, along with his letter, a confidential communication despatched only to co-members, cannot be brushed aside, as without significance.
8. Explanation 4 to Section 499 I.P.C. reads, that no imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectural character of that person, or lowers the character of that person, in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.
9. On this explanation, certain decided cases have been placed for my consideration by petitioner’s senior counsel. It will be better to look at them forthwith. In Pullman v. Walter Hill & Co. Limited, ((1891) 1 QB 524), following observations were made :-
“What is the meaning of “Publication” ? The making known the defamatory matter after it has been written to some person other than the person of whom it is written. If the statement is sent straight to the person of which it is written, there is no publication of it; for you cannot publish a libel of a man to himself.”
This proposition is well accepted.
10. In Queen Empress v. Taki Hussain, (1885) ILR 7 All 205), it was stated that Explanation 4 convinced the Full Bench, that by ‘harm’ was meant imputations on a man’s character made and expressed to others, so as to lower him in their estimation, and that anything which lowers him merely in his own estimation, certainly does not constitute defamation. These observations, are identical to that, made in Pullman’s case, ((1891) 1 QB 524).
11. To the same effect are the following observations made by a single Judge of Kerala High Court in Jacob Onden v. Rev. Stanley Padingadan, (1970 Cri LJ 1311)(at p. 1313).
“It is not necessary for such publication to be made within the provision of S. 499, Penal Code. Publication, according to that section, implies communication to at least one person other than the person defamed. So, there can be no publication unless the subject matter of the libel is communicated to a third person. The question whether the subject-matter had in fact been communicated to a third person is, therefore, material, for upon it depends the question of publication.”
11A. Allahabad High Court in Hardevi Malkani v. State, (1969 Cri LJ 1089), expressed the very same view after referring to the decision in Queen Empress v. Taki Hussain, (ILR 7 All 205). In other words, an impuration intimated to the person defamed, by itself, would not complete the offence of defamation.
11B. In Kundanmal v. Emperor, (AIR 1943 Sind 196), it was observed, that publication of defamatory matter, involved the communication of it, to some person other than the person to whom it was addressed. Normally, there was no publication when a letter containing defamatary imputations was sent direct to the person defamed but when it was proved that the writer knew that the person defamed could not read when he sent the letter and the person defamed gets it read by a third person it must be held that there was evidence of a publication to a third person, for in such a case the writer must have known that the letter would be read to the person defamed by some third person.
12. B. S. Somasundaram, J. in Miss Violet Wapshare v. Miss Maureen Froud, (1970 Mad LW (Cri) 4) stated, that the word “publish” in S. 499 I.P.C. was used in its etymological sense, as connoting “to make public” or “to make known to people in general”. Since “Publication” implied communication to the public or the people, it followed that it was not publication of the libeller merely communicated his libel to the person defamed.
13. David Annoussamy, J. In Mohammed Ali v. N. A. S. Ansari, (1988 Mad LW (Cri) 491), observed, that in the complaint, which was being scrutinised, two sets of facts had been put forth. One was that the accused have been telling in the town to everyone, that the complainant had broken open the shops and had stolen away the articles found therein. That was too vague a statement for taking action. The complainant should have disclosed atleast the names of a few persons to whom such piece of information would have been given by the accused. That essential detail was not even furnished by the complainant in his sworn statement. He remained as vague as the complaint, when he got himself examined.
14. I have referred in extenso, to the aforestated authorities, since it was argued with vehemance that, on the available material in the complaint and the sworn statement, there was no publication as such and if such absence was read with explanation 4, pending prosecution should not be allowed to survive any longer. There cannot be a divergent view, that publication of defamation, to a person other than the person defamed is sine quo non for initiation of action. Whether publication, in a given case had been made, will certainly be a question of fact, depending upon the evidence placed for court’s scrutiny. In the case decided by David Annoussamy, J. (Mohammed Ali’s case)(Supra) the averments showed, that the accused have been telling in the town to everyone, that the complainant had broken open shopes and stolen away the articles found therein. Certainly, it was so vague a statement. The accused had referred to the occupants in the town, which was an indeterminate class of people. In the instant complaint, averments clearly show, that the defamatory letter was communicated to other members of Royal Western Turf Club, Bombay, who were residing in Madras. The complainant as well as the accused, who were connected with racing and the institution mentioned therein, should be well aware of, those specific determinate group of members of that club, who were residing at Madras. If the complainant had stated in general, it cannot by any stretch of imagination be referred to a known or determinate set of people to whom defamatory allegations had been communicated. Then the matter would have been certainly different. On the averments made in the complaint, it cannot be denied, that the defamatory letter, along with its enclosure, had in fact, been sent to certain other members of Royal Western Turf Club, Bombay, who were residing at Madras. Defamatory matter, has certainly been sent to persons other than the respondent and, therefore, I am satisfied, that prima facie, publication has been mentioned, in the complaint and the sworn statement and the complainant must be afforded an opportunity to prove publication, by examining witnesses, who had received such communication from the petitioner, and which had tended to lower his reputation in the estimation of that specified group of people. Respondent certainly could have given out the names of some members of the Royal. Western Turf Club, who are residing at Madras and to whom communications had been forwarded, by the petitioner. But non-furnishing of the same, on the peculiar facts of this case, will not be sufficient to quash the entire prosecution, lock, stock and barrel.
15. The effect of Explanation 4 to Section 499 I.P.C. is again a matter which will have to be left open for appreciation by the trial Magistrate, after sufficient evidence is adduced, by either party. The mens rea of the petitioner will also have to be kept open because there is a claim and counter claim about that mens rea. The defence of the petitioner, that his interest was clean racing and that the members of the public should not be cheated, cannot be taken as a ground for quashing the pending prosecution, for, while exercising inherent powers all that the Court is entitled to do, is to look into the allegations in the complaint and the sworn statement and find out, if a prima facie case, to allow the prosecution to be proceeded with, is discernible. If the answer is in the negative, proceedings will have to be quashed. Again, if there is any legal bar for initiation of proceedings, then this Court will be justified in exercising inherent powers. Disputed questions of fact, which have to be legitimately resolved during trial, cannot be urged, to put an end to the prosecution, even at its threshold.
6. I have already referred to several averments made in the complaint, which clearly pin-point despatch of the defamatory letter, to a few of specified group of persons, who are residents of Madras. This is not a case where the averments made in the complaint and the sworn statement do not disclose ingredients of the offence alleged. If forwarding of communication, was for public good or otherwise, cannot enter into the arena of exercise of inherent powers. That clearly pertains to the magisterial realm. About the reputation of the respondent, having been lowered in the eyes of these specified people, also forms part of the averments made in the complaint. On the main ground, since the ingredients of the offence, have a base in the averments found in the complaint and the sworn statement, I am unable to agree, that his pending prosecution, deserves erasure.
17. Now, we have to turn our attention to the other submission, that a list of witnesses, has not been appended to the complaint. Provisions under section 204(2) Crl.P.C. will be relevant to scrutinise this contention. It reads as hereunder :
“No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.”
Sub-Section (1) deals with issue of process, be it a summon or warrant, as the case may be.
18. The object of the aforestated provision is to facilitate the accused to know the case he has to meet, which was expected to be put forth, through those witnesses listed in the complaint. This procedure, was, obviously, deemed important, for, in the case of a final report filed by the police, there would have been investigation during the couse of which statements of witnesses would have been recorded, apart from collection of documentary evidence. All material collected during investigation by the police will be forwarded along with the final report under Section 173(8) Cr.P.C. On the appearance of the accused, those documents, in law, will have to be supplied to him, before the commencement of trial. To achieve the same purpose, in a private complaint, the object of law appears to be, that a list of witnesses, whom the complainant will choose, to examine, must be appended to the complaint. If that object and purpose intended by Sec. 204 Cr.P.C. could be otherwise satisfied, without any prejudice being caused to the accused, merely because a list of witnesses had not been appended to the complaint, the pending prosecution cannot be quashed.
19. Observations of T. U. Mehta, C.J. of Himachal Pradesh High Court, in Kanhu Ram v. Durga Ram, (1980 Cri LJ 518), appear to be relevant in this context. Learned Judge stated, that even if filing of a list contemplated by sub-section (2) of Section 204 Cr.P.C. was considered to be mandatory, the provisions contained in Section 465 of the Code may have to be taken into consideration, before declaring the issue of process as illegal. Therefore, order issuing process cannot be set aside, unless the Court found, that it had resulted in failure of justice. It was further held, that the order had not resulted in failure of justice, since the matter had not yet proceeded further and the complainant could be asked to furnish a list of witnesses, before evidence was recorded in the case, so that the accused, for whose protection, sub-section (2) of Section 204 was enacted, could know the nature of evidence, which the complainant was likely to produce.
20. A Full Bench of Jammu and Kashmir High Court in Abdulla Bhat v. Ghulam Mohd. Wani, (1972 Cri LJ 277) stated, that non-compliannnce of Section 204(1-A) of the old code, corresponding to Section 204(2) of the present code, was not an illegality which rendered subsequent proceedings null and void, but was a curable irregularity. It was further stated, that Section 204(1-A) contained a salutary provision made solely for the protection and benefit of the accused and had to be complied with normally. However, it was not mandatory in the sense, that even if no prejudice is caused to the accused, it will vitiate the trial.
21. S. Natarajan, J., in Vivekanantham v. Viswanathan, (1976 Mad LW (Cri) 215) : (1977 Cri LJ 425), while construing the provisions of Section 244 Cr.P.C., regarding permissibility of filing supplemental or additional evidence of witnesses, in a private complaint case, stated as follows (at p. 427 of Cri LJ) :-
“Though S. 204(2) of the new Code prescribes that no summons or warrant shall be issued against the accused under sub-s. (1) until a list of the prosecution witnesses has been filed that can not be taken to mean that a complainant is irretrievably chained to the first list of witnesses filed by him and he cannot seek the permission of the Court to examine additional witnesses even where circumstances or interests of justice warrant such examination.”
It was further observed :
“To give a fettered or restricted meaning to S. 244 Crl.P.C. will defeat the very ends of justice and it could never have been the intention of the Parliament to curtail the rights of complainants in private cases in such a manner.”
22. These observations, to my mind, are very relevant for, ultimately the court is concerend with the ends of justice coupled with the opportunity that must be afforded to either party in a private complaint case. Now that it is possible, in the instant case, for the trial Magistrate, to direct the respondent to furnish a list of witnesses before trial commences, there can be no manner of prejudice whatever, to the petitioner. As I have already stated, the object and purpose behind the provision should not be over-looked, while assessing the rights of parties and furtherance of the cause of justice.
23. Pratap Singh, J., in K. Sarojini v. K. N. Varadarajan, (1992 Mad LW (Crl. 126) while interpreting Section 204(3) Cr.P.C. which reads, that in a proceeding instituted upon a complainant made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint, held that failure to send a copy of complaint along with summons would not vitiate the proceedings. This provision must be held to be directory and not mandatory, while arriving at such a conclusion, learned Judge has referred to the case law available on the subject.
24. I hold, that on the ground of non-appending of a list of witnesses in the complaint, the impugned proceedings cannot be quashed. Now that all grounds urged have been negatived, this petition, which has no merit, shall stand dismissed.
25. Petition dismissed.