IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 927 of 2001()
1. K.M.HASSAN
... Petitioner
Vs
1. HANISABI
... Respondent
For Petitioner :SRI.P.K.ASHOKAN
For Respondent :SRI.P.VIJAYA BHANU
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :20/10/2008
O R D E R
"C.R."
THOMAS P.JOSEPH, J.
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CRL.R.P. No.927 of 2001
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Dated this the 20th day of October, 2008
O R D E R
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The question raised in this revision is whether the
restriction contained in Section 199 of the Code of Criminal
Procedure (for short, “the Code”) on the right of a person to
prefer a complaint is applicable to the person who came
forward to continue the proceedings on the death of the original
complainant. Learned counsel for the revision petitioners
contended that the person willing to continue the proceedings
after the death of the original complainant should himself be a
‘person aggrieved’ while according to the learned counsel for
respondent, the ban under Section 199 of the Code is
applicable only in the matter of taking cognisance.
2. Though the general rule is that any person whether
himself aggrieved or not by the offending act could make a
complaint with a view to take action under the Code, Chapter
XIV of the Code imposes conditions in the matter of ‘taking
cognizance’ of certain offences. Section 199 of the Code
which relates to prosecution for defamation states that “no
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court shall take cognizance of an offence punishable under Chapter
XXI of the Indian Penal Code (45 of 1860) except upon a complaint
made by some person aggrieved by the offence”. The proviso states
that where such person is disabled from preferring a complaint for the
reasons sated in the proviso, some other person may, with the leave of
the court, make a complaint on his or her behalf. In this case,
complaint for the offence punishable under Section 500 of the Indian
Penal Code (for short, “the Penal Code”) was preferred by the person
allegedly defamed. Learned magistrate took cognizance of the offence
and initiated proceedings against revision petitioners. While the
case was pending, complainant died. Respondent came forward
willing to continue the proceedings and filed Crl.M.P. No.988 of 2001 to
implead herself in the compliant. Despite objection raised by
revision petitioners, learned magistrate as per the impugned order
allowed the prayer. According to learned counsel for revision
petitioners, respondent is not a “person aggrieved” by the
imputations and as such the order of impleadment is bad in law.
Learned counsel submitted that the alleged defamatory statement
concerned the performance of the deceased complainant as a paid
Secretary of a Mahal committee and as such respondent who is his
niece cannot be termed as a person aggrieved and entitled to continue
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the proceedings after the death of the complainant. Learned counsel
placed reliance on the decisions of this Court in Mathew v.
Balan (1984 KLT 893) and Nazeem Bavakunju v. State &
others (1987 (2) KLT 755). Counsel for respondent in support of his
contention that the restriction contained in Sec.199 of the Code is
only in the matter of taking cognizance, placed reliance on the
decision of this Court in C.M. Stephen v. John Manjooran
(1970 KLT 545).
3. Section 199 of the Code uses the words “some person
aggrieved”. So far as the words “some person aggrieved” are
concerned, there cannot be inflexible rule that those words limit the
right to make a complaint for the offence of defamation to the person
actually defamed. The words in Sec.199(1) of the Code cannot be
understood as having the narrow meaning that none other than the
person defamed could prefer a complaint. Whether a person is
aggrieved by the imputations depends on the facts and circumstances
of each case. For instance, if an imputation of immorality is attributed
to a girl, the reputation of her father would also be at stake and
hence, the father of the girl concerned can also be said to be a
“person aggrieved”. The object of incorporating the words “some
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person aggrieved” is only to limit the right to file complaint for the
offence of defamation to the person who suffered the injury.
4. The question for consideration and decision is whether
such restriction is applicable to a person who comes forward willing to
continue the proceedings on the death of the complainant at whose
instance cognizance of the offence has been taken. The Chief Court of
Punjab and Lahore in Ishar Das v. Emperor (1908 (7) Crl. L.J.
290, held that the maxim “actio personalis moritur cum persona
(i.e. a personal right of action dies with the person) is applicable in the
matter of prosecution for defamation since that is essentially a
personal action and institution of the proceedings depended on the
temperament of the person defamed. Dissenting from that view
Mosely, J., in U. Tin Maung v. The King (AIR 1941 Rangoon
202) held that the words “some person aggrieved” occurring in
Sec.198 of the Code (as it then stood) only limited the court’s power
of initial cognizance. Once the court has seizin of the case, there is
nothing to prevent the court from proceeding with it. A learned Single
Judge of Madhya Pradesh High Court followed that view in Nathu
Jeorakhan v. Sheopal Kuppa (AIR 1963 MP 47). The Apex
Court considered the issue though in relation to the offences
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punishable under Sections 493 and 496 of the Penal Code in Ashwin
v. State of Maharashtra (AIR 1967 SC 983) and held that the
bar under Sect.198 of the Code is removed when the aggrieved
person files a complaint, and that his presence throughout trial is not
necessary. Though the court cannot substitute a new complainant in
the place of a deceased complainant, it has the power to authorise the
conduct of the prosecution by any person. A learned Single Judge of
the Allahabad High Court in Abdul Hakim v. State (1973 Crl.L.J.
492) took the view that a proper and fit person could be permitted to
continue the proceedings on the death of complainant in a prosecution
for the offence of defamation.
5. The words “take cognizance” is not defined in the Code.
The word ‘cognizance’ is used in the Code to indicate the point when
the court takes judicial notice of an offence. “Taking cognizance” is a
judicial act taken with a view to prosecute the offender and it is the
primary stage for commencement of the inquiry or trial. The court
applies its mind to the facts set out in the compliant and decides
whether it is necessary to proceed further in the matter against the
offender. When the court takes cognizance, it assumes jurisdiction
over the case. “Taking cognizance” is different from initiation of
proceedings though taking cognizance is a condition precedent to the
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initiation of the proceedings.
6. Section 256 of the Code deals with non-appearance or
death of the complainant. Non-appearance of the complainant may be
due to his death. Section 256 does not require that whenever the
complainant is absent, complaint should be dismissed. It gives wide
discretionary power for the magistrate to adjourn the case to another
day. Section 302 of the Code confers power on the magistrate to
permit conduct of the prosecution by any person subject to the
exceptions provided therein. The power of the magistrate is not
restricted by the condition imposed on the right of a person to make a
complaint for the offence of defamation as stated in Sect.199(1) of the
Code.
7. In this case, cognizance was taken of the offence against
the revision petitioners on the complaint made by the person against
whom imputations were made. During the pendency of that case the
complainant died and the respondent who is the niece of the deceased
complainant came forward expressing willingness to continue the
proceedings which learned magistrate vide the impugned order,
allowed. There is no indication in Sec.199 or any other provision of
the Code restricting the power of the magistrate to allow a person to
continue the proceedings on the death of the person aggrieved at
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whose instance cognizance of the offence was taken. On the other
hand, proviso to Sec.199(1) of the Code provides that when the
person aggrieved is unable to make a compliant in the circumstances
stated therein, any other person whether aggrieved or not by the
imputations may make a complaint on behalf of the person
aggrieved, the only condition being that he must obtain leave of the
court. There is no reason to think that the framers of the Code
intended to prescribe more restrictions on a person who is willing to
continue the proceedings on the death of the person aggrieved and at
whose instance cognizance of the offence had already been taken.
The position may be different if the person aggrieved and who
preferred the complaint died even before cognizance was taken. The
contention that the person who comes forward to continue the
proceedings must also be a person aggrieved as in the case of the
complainant at whose instance cognizance has been taken, cannot
therefore be sustained. In C.M. Stephen v. John Manjooran referred
supra, Bhaskaran, J., (as His Lordship then was) held that it is
permissible to substitute a fit and proper person in the place of the
deceased complainant to maintain the prosecution if the complainant
died pending the complaint. I respectfully agree with that view.
The decisions relied on by the learned counsel for revision petitioners
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do not apply to the facts of the case.
8. That apart, on the facts of this case the respondent who
came forward expressing willingness to prosecute the case is the
niece of the deceased complainant. One of the imputations said to be
made against the deceased complainant is that he, as paid Secretary
of the Mahal Committee received money on behalf of the Mahal
Committee but neither issued receipts nor accounted the same (and
thereby misappropriated it). That imputation concerning the integrity
and character of the deceased complainant is sufficient to cause
anguish to his relatives, respondent being one among them.
Respondent therefore is also a person aggrieved and thus a
competent person to continue the proceedings.
9. The maxim, “actio personalis moritur cum persona” does
not apply to criminal proceedings for the offence of defamation.
Revision Petition is dismissed
Criminal Miscellaneous Petition No.4396 of 2001 shall stand
dismissed.
THOMAS P.JOSEPH, JUDGE.
vsv
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THOMAS P.JOSEPH, J.
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CRL.R.P. NO.927 OF 2001
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O R D E R
20TH OCTOBER, 2008