IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 24/01/2003
Coram
The Honourable Mr.Justice M. KARPAGAVINAYAGAM
CRIMINAL ORIGINAL PETITION No.11401 of 2001
and
Crl.M.P.Nos.3710 and 3711 of 2001
Kalyanam ..Petitioner
-Vs-
Ramesh ..Respondent
Criminal Original Petition filed under Section 482 Cr.P.C. to call
for the records and quash the proceedings in C.C.No.6796 of 2000 pending
before XVIII Metropolitan Magistrate, Chennai.
!For Petitioner : Mr. K.P. Anantha Krishna
^For Respondent : Mr. C.L. Shaji
:O R D E R
Kalyanam, who worked as Private Secretary to Mahatma Gandhi, the
Father of our Nation, for about four years, having aggrieved over the issuance
of process against him in the private complaint filed by one Ramesh under
Section 500 I.P.C., has approac this Court through this petition under Section
482 Cr.P.C. seeking for quashing of the above said proceedings.
2. The respondent filed a complaint against the petitioner and the
Editor of The New Indian Express under Section 500 I.P.C. stating that The
New Indian Express published an article carrying the title as “Mahatma’s
Secretary seeks peace” at the inst of the first accused Kalyanam containing
the imputation indicating that the Mahatma’s Secretary is struggling for peace
from the hands of the hands of the complainant and since the said article
containing the imputation published in The New Indian Expre ss dated 13.4.2000
would harm the reputation of the complainant, both the accused are liable to
be punished for the offence of defamation under Section 500 I.P.C.
3. This private complaint was taken on file on 19.10.2000 after
recording sworn statement from the complainant and the process was issued to
both Kalyanam (A1), the petitioner, and the Editor of The New Indian Express
(A2). In the sworn statement, complainant stated that on 13.4.2000, The New
Indian Express published an article captioned as “Mahatma’s Secretary seeks
peace” containing imputation to harm the reputation of the complainant, who is
the member of several Clubs, and his wife and the pub lication was made at the
instigation of A1.
4. The main point which has been urged by the counsel for the
petitioner before this Court is that there is no details of the averment
either in the complaint or in the sworn statement with reference to the
imputation which was said to be contained he article published in The New
Indian Express dated 13.4.2000 and as such, the complaint does not indicate
any ingredient for the offence under Section 500 I.P.C. and hence, the
proceedings arising out of the said private complaint are liable to be quas
hed.
5. I heard the counsel for the petitioner as well as the respondent.
6. I have gone through the complaint and the sworn statement.
7. Both in the complaint and in the sworn statement, it is merely
mentioned that the article published in The New Indian Express dated 13.4.2000
at the instigation of A1 would harm the reputation of the complainant and
hence, both the accused are li to be punished. However, no particulars of
imputation have been given both in complaint and in sworn statement indicating
the imputation which would attract the ingredient of Section 500 I.P.C.
8. It is settled law that a person cannot be said to have committed
an offence under Section 500 I.P.C. merely because some article or news item
is published attributing certain utterances to that person. Unless it is
shown that the imputation or o tionable words had been used by the accused and
only at his instance, the said objectionable words were published, the accused
cannot be prima facie said to have committed the offence punishable under
Section 500 I.P.C.
9. In a trial for defamation, it is quite essential that the details
of imputation containing the words alleged to be defamatory in character
should be precisely set out in the complaint. It is the said imputation or
the words so set out in the com nt that will constitute the foundation for
defamation.
10. In a defamation case, the only document containing the accusation
of offences supplied to the accused is the complaint. By issuance of process
to the accused, he is called upon to answer the accusation relating to the
imputation containing defa on mentioned in the complaint. In other words,
cause of action is the accusation with reference to the imputation alone.
What is required further is only adducing evidence by the complainant in
support of those accusations. Therefore, the accused in en titled to know
what are the accusations with regard to the imputation made against him. Then
only he will be able to answer the accusations and shape his defence.
11. It cannot be said that the accused may be aware of the imputation
because of the publication of the same through the newspaper. But, that is
not the question here. It is required by law that from the complaint itself,
the accused is entitled now what are the accusations which formed the basis of
the complaint.
12. When a similar question was raised before the Supreme Court in a
defamation case, the Supreme Court would hold in BALRAJ KHANNA v. MOTIRAM
(1971 S.C.C.(Cri.)647) in the following words:
“The purpose or object will be served if the complainant is able to
reproduce in his complaint or evidence in a substantial measure the words of
imputation alleged to have been uttered. If the statements or the words
placed before the Court by the lainant are held to be not defamatory, it will
mean that the complainant will have to lose. Therefore, it is to his interest
to get a proper adjudication from the Court that as far as possible the words
spoken or the statements actually made and which h e alleges to be defamatory
are before the Court. … From the point of view of accused also it is
necessary that the matters alleged to be defamatory in the complaint must be
so stated as to enable the accused to know the nature of the allegations that
t hey have to meet.”
13. Following the above judgment, the Kerala High Court also in
KONATH MADHAVI AMMA v. S.M. SHERIEF (1985 CRI.L.J.1496) has held that in the
absence of the imputation constituting the offence of defamation in the
complaint, the Court cannot enter the complaint on defamation as the mere
allegations contained in the complaint without imputation would not be
sufficient for the accused as he is entitled to know about the imputation to
face the charge.
14. The very same principles have been laid down in LALOO PRASAD v.
STATE OF BIHAR AND ANOTHER (1997(2) Crimes 498 Patna H.C.). Further, the
Supreme Court in SHATRUGHNA PRASAD SINHA v. RAJBHAU SURAJMAL RATHI (1997
CRI.L.J.212) and this Court i KARTHIKEYAN v. S. ANANTHANARAYANAN (1998(1)
Crimes 44) would hold that in the absence of necessary averment containing the
imputation constituting the ingredient of defamation, the complaint could not
be said to be valid in law.
15. In the light of the above principles, if we look at the contents
of the complaint, it is clear that the complainant merely mentioned that he is
a tenant under the petitioner and has been regularly paying the rent and
despite that, the publicatio s made by the New Indian Express, the second
accused at the instance of the first accused, the landlord, containing
defamatory and false particulars. Thus, it is clear that there are no basic
requirements in the complaint as the ingredient for defamati on under Section
500 I.P.C. through the alleged imputation are clearly absent in the
complaint.
16. The trial Court during enquiry under Section 200 Cr.P.C.
examined the complainant only and recorded his sworn statement. Even in his
sworn statement, he would simply refer to the article without giving any
details of the imputation through the al words or at least the contents of the
same. Despite this, the trial Court has taken the case on file under Section
500 I.P.C. and issued process against both the petitioner and the Editor of
the New Indian Express.
17. It is salutary to note that the judicial process should not be an
instrument of oppression or needless harassment. There lies responsibility
and duty on the Magistracy to find whether the concerned accused should be
legally responsible for the o ce charged for. Only on satisfying that the law
casts liability or creates offence against the person, then only process would
be issued. At that stage, the Court would be circumspect and judicious in
exercising discretion and should take all the relev ant facts and
circumstances into consideration before issuing process, otherwise it would be
an instrument in the hands of the private complaint as vendetta to harass the
person needlessly. Vindication of majesty of justice and maintenance of law
and or der in the society are the prime objects of criminal justice but it
should not be allowed to use those means to wreak personal vengeance.
18. According to the complainant, the publication was made in the
newspaper only at the instance of the first accused, the petitioner herein.
The caption given in the article is “Mahatma’s Secretary seeks peace”. Due to
filing of the private compla in which process was issued to the accused, the
petitioner is now constrained to continue to seek peace and for justice
through this Court.
19. To put it differently, the facts set out in the complaint seeking
for punishment under Section 500 I.P.C. without giving the particulars of
imputation dragging the landlord and the Editor of the newspaper to the Court
of Law would eloquently man t on its face, a clear abuse of process of the
Court to harass the petitioner and the Editor of the newspaper.
20. In view of what is stated above, the entire proceedings arising
out of the private complaint filed by the respondent against both the accused,
namely the petitioner and the Editor of the New Indian Express, are liable to
be quashed. Even though the Editor of the New Indian Express has not
approached this Court seeking for quashing of the proceedings, I am of the
view that the reasonings for quashing the proceedings against A1 would apply
to A2 as well. Accordingly, the impugned proceedings ini tiated against both
the accused are quashed and the petition is allowed. Consequently,
Crl.M.P.Nos.3710 and 3711 of 2001 are closed.
Index : Yes
Internet: Yes
mam
To
1) The XIII Metropolitan Magistrate, Chennai.
2) -do- the Chief Metropolitan Magistrate, Chennai.