IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19/12/2003
CORAM
THE HONOURABLE MR.JUSTICE A.PACKIARAJ
CRL.R.C.No.1529 of 2002
J.S.Chitharanjan .. Petitioner.
-Vs-
Dr.S.Usha Kalyani .. Respondent.
!For Petitioner : Mr.A.Raghunathan for
Mr.V.Sairam
^For Respondent : Mr.S.Ananthanarayanan
PRAYER: Revision against the order passed by the VII Metropolitan
Magistrate, George Town, Madras dated 11.06.202 in Crl.M.P.No.1800 of 20 02 in
C.C.No.7919 of 1998.
:O R D E R
This revision has been filed against the order passed by the VII
Metropolitan Magistrate, George Town, Madras in Crl.M.P.No.1800 of 2002 in
C.C.No.7919 of 1998, declining to discharge the accused/ petitioner from the
private complaint preferred by the complainant/respondent of an offence under
Section 500 IPC.
2. The circumstances under which the said order came to be passed is
as follows:
a) The respondent/complaint is a Lecturer in English in
Bharathiar College for Women, Madras and hails from a respectable family. She
was married to the accused/petitioner herein and out their wedlock a female
child was born, but unfortunately the marriage tie broke up and due to certain
things happened in the course of their wedlock, she was forced to give a
complaint against her husband for offences under Section 420 and 406 IPC. The
details of which are totally not necessary for the purpose of disposing of
this revision, suffice to state that the said complaint was filed before the
Additional Chief Metropolitan Magistrate, Egmore, Chennai, who referred the
matter to the Crime Branch, Egmore, Chennai. The Crime Branch on receipt of
the same, registered a case and investigated the matter. The
accused/petitioner being afraid that he may be arrested sought for
Anticipatory Bail before this Court by filing an application in
Crl.O.P.No.8639 of 1998. Notice was given only to the Public Prosecutor and
when the matter came up for hearing, the complainant/respondent sought to
implead herself by engaging a counsel to appose the said application. The
counsel for the accused/petitioner sought time and filed an affidavit of the
petitioner on the next hearing in support of the application for Anticipatory
Bail. In the said affidavit, the following averments have been made
“10. I state that in the month of July 1986 Usha Kalyani brought the
said Abdul Razack to the house and when I suddenly went home for lunch and
found the motor bike I was under the impression that my friend would have
come. The door was closed and I range the bell. Since there was no power
supply at that time, I went to the back yard to see if I could call Usha
Kalyani. When I peeped in through the window, I saw that the said Abdul
Razack having sexual intercourse with Usha Kalyani. After seeing me the said
Abdul Razack fled and I had a mental shock. From that day onwards, I refused
to have marital relationship with Usha Kalyani and I had to tolerate this for
the sake of my daughter Ramya.
11. I further state that in furtherance to this I gathered
information and found that Usha Kalyani has continued sexual relationship with
many persons including Aslam and Assistant Flight person, Indian Airlines,
residing at Anna Nagar and Kalyanaraman working at Bombay. I also got several
information that many persons were visiting my house in my absence. When my
daughter was 9 years old in the year 1992 she herself witnessed her mother in
bed with a stranger and informed me about the same. When I questioned Usha
Kalyani she physically assaulted my daughter and starved my daughter for two
full days and I had to admit her in the hospital. Several alcohol were found
in my wife’s cup board and later I was informed by my daughter that Usha
Kalyani has the habit of consuming alcohol regularly”
b) According to the complainant/respondent the above
imputations were made in the affidavit by the accused/petitioner with the
intention to harm the reputation, knowing fully well that the same is false
and had been made made with the intention to malign her reputation and
character. Hence, the complainant/respondent filed the present complaint
before the VII Metropolitan Magistrate for the offence punishable under
Section 500 IPC against the accused/petitioner.
c) On appearance the accused/petitioner filed a petition for
discharge taking up a plea that the averments made in the affidavit would be
protected under Exception 8 and 9 of Section 499 IPC. However, the learned
Magistrate dismissed the said petition on the ground that the exceptions has
to be necessarily pleaded during the course of the trial and cannot be
pre-judged. It is against this order, the present revision has been filed.
3. The imputations made in the affidavit by the accused/petitioner
prima facie is defamatory and there is no quarrel and rightly so no arguments
were advanced in relation to that. But the learned counsel appearing for the
accused/petitioner would only say that this will certainly come under
Exception 8 and 9 of Section 499 IPC and hence the complaint deserves to be
dismissed.
4. In support of his contention, the learned counsel first took me to
Exception 8 of Section 499 IPC IPC, which reads as follows:
“It is not imputation to prefer in good faith an accusation against
any person to any of those who have lawful authority over that person with
respect to the subject of accusation.”
5. Furtherance to it, Exception 9 of Section 499 IPC was also taken
through by the learned counsel, which reads as follows:
“It is not defamation to make an imputation on the character of
another, provided that the imputation be made in good faith for the protection
of the interest of the person making it, or for any other person, or for the
public good.”
6. While referring to the above stated two exceptions, the learned
counsel would stress more on Exception 9 of Section 499 IPC, wherein the law
says that imputation made on the character of another, if made in good faith
for the protection of the interest of person making it, is not defamation.
According to the learned counsel the imputation in this case was made by the
accused/petitioner in the affidavit filed before the High Court to only bring
it to the notice of the Court that “can the words of such a woman of bad
virtues be believed and Anticipatory Bail should be rejected and that this
statement would not have been made had not the defacto complainant (the
present complainant) sought intervention in the bail application.
7. Just because the complainant/respondent came as an intervenor in
the application preferred by the accused/petitioner seeking bail, it does not
mean to say that he had a right to accuse about her moral virtues, which
according to her is totally false. The accused/ petitioner cannot escape or
go without being challenged claiming that it has been done in good faith and
in the protection of the interest of the person making it.
8. A reading of Exception 9 of Section 499 IPC would only reveal that
such an accusation is not an imputation, provided, it has been made in good
faith. Here, the word provided has to be necessarily given a meaning. So, my
reading of the exception clause would be to say that the imputation on the
character of another is definitely a defamation, unless that imputation be
proved or established that it has been made in good faith for the protection
of the interest of the person making it, which means that it has to be
necessarily shown in the course of trial that the imputation has been made in
good faith. Therefore, I am not inclined to accept the argument of the
learned counsel as far as the claiming of protection under Exception 9 of
Section 499 IPC.
9. The next ground of attack is that it has been done in good faith
before a lawful authority. Thus the question as to who is the lawful
authority has to be decided. In the Anticipatory application, the lawful
authority was the High court, but there the subject matter was only in
relation to an offence under Section 406 and 420 IPC. In effect, the position
is that the application before the lawful authority has been made only to
grant Anticipatory Bail for the grounds raised by him and the subject matter
of the present complaint, which shows the attack made on chastity and morality
is not the subject matter in the Anticipatory Bail application. Even though
the defacto complainant had intervened in the said application and opposed the
same, it is only with reference to the offence in that application the
objection has been made. On the otherhand, if her chastity had been the
subject matter before the lawful authority and if an accusation has been made
in respect of that then it could very well be said that an accusation has been
made before the lawful authority, who is called upon to decide that issue.
But in that application there was no reason at all for him to have accused her
in so many words. Therefore, here again my reading in respect of Exception 8
is that if an accusation has been made against any person, who has lawful
authority means the lawful authority who is to decide that particular issue of
the matter, which relates to defamatory in character and not matters
incidental thereto. Therefore, what comes to be known from the above is that
if something has been stated about the facts of offence under Section 406 and
420 IPC, it may well be said to be protected. But to accuse her of her
morality and say that she should not be believed, is a matter which has to be
necessarily tried and decided only after a full-fledged trial.
10. The learned counsel appearing for the accused/petitioner relied
on a decision of the Delhi High Court reported in Pabitra Pradhan Vs. State
of Orissa (2002(1) Crimes 593) wherein His Lordship Justice Agarwal has held
to the effect that where it is apparent that the imputation was made in good
faith by the petitioner to get the order of summoning quashing, the same
cannot be said to have been made with intention or knowledge to cause harm to
the reputation of petitioner. I am afraid that the said decision will not be
of help to the accused/ petitioner herein, since that is a case where the
allegations of the offence punishable under Section 499 IPC was made and the
subject matter of the imputation was in relation to that particular offence
and the Apex court was the lawful authority to decide that issue and
therefore, the Delhi High Court has held that it was apparent and hence
protected him under Exception 8. But in the case on hand, this Court in the
Anticipatory Bail application was not called upon to decide whether she was
immoral or not. The subject matter of the issue before this Court was only
for an offence under Section 406 and 420 IPC, in which case the
accused/petitioner has no reason to file such an affidavit.
11. The learned counsel appearing for the complainant/respondent on
his side relied on a decision of the Apex Court reported in M.N. Damani Vs.
S.K.Sinha and others (2001 Crl.L.N. 2571), wherein Their Lordships have held
that it is not the province of this Court to appreciate at this stage the
evidence or scope of and meaning of the statement. Further they went to hold
that the High Court cannot at this stage say that there was no reasonable
prospect of conviction resulting in case after trial and that questions
whether imputations were made on good faith, in what circumstances, with what
intention etc., are to be examined on the basis of the evidence in trial. I
most respectfully agree with the said proposition and therefore, I have no
hesitation to dismiss this revision. However, it is open for the respondent
to claim the benefit of Exception 8 and 9 of Section 499 IPC as the case may
be during the course of trial.
12. Apart from the above, yet another broad factor which remains to
be answered is that when the accusation has been made against the complainant
in a proceedings and if it is said that it has been made in good faith without
a trial after and the proceedings has been quashed, the said accusation goes
unchallenged. Further, the question, will not the aggrieved person be
entitled to erase the shabby comments on her. It is more in the light of this
that I am not inclined to go into the factual question without a trial being
proceeded to decide that it has been done in good faith. Therefore, on the
above premise, I feel that there are no merits in this revision and the
revision is hereby dismissed.
csh
Index:Yes
Internet:Yes
To
1. The VII Metropolitan Magistrate,
George Town, Chennai.
2. -Do- Thro’ The Chief Metropolitan
Magistrate, Egmore, Chennai.