BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATE:
27. 11-2014 CORAM THE HON?.BLE MR.JUSTICE S.VAIDYANATHAN CRL.O.P.(MD)No.19578 OF2014A.S.Sree Nandhini .. Petitioner Versus R.Uthaman .. Respondent Prayer This Petition is filed under Section 482 Cr.P.C., praying to call for the records relating to the complaint in C.C.No.102 of 2014 on the file of the Judicial Magistrate, Natham and quash the same as far as the petitioners are concerned. !For Petitioner : Mr.I.Abrar Md.Abdullah For M/s.Ajmal Associates ^For Respondent : Mr.R.Anand :ORDER
Tmt.A.S.Sree Nandhini, petitioner herein, has come forward with the present petition, seeking to quash the proceedings in C.C.No.102 of 2014 pending on the file of the Judicial Magistrate, Natham.
2. Mr.R.Uthaman, respondent herein, who is said to be a close friend of the petitioner?.s husband Mr.K.Senthil Kumaran, has filed a private complaint under Section 199(1) A and 200 Cr.P.C. before the Judicial Magistrate Court, Natham, which has been taken on file as C.C.No.102 of 2014, against the petitioner herein, praying to punish the petitioner for the offences alleged to have committed by her under Sections 499 and 500 IPC.
3. According to the respondent, he is a prominent person in the village and he studied Master Degree in Public Administration and also a Course in Food Processing Technology and got training in Modern Cultivation Techniques and the villagers used to consult him for getting advices in the above fields and he got reputation in the society. While so, to his shock and surprise, he was served with summons issued by the District Social Welfare Officer, Coimbatore in relating to the proceedings initiated by the petitioner herein, against her husband and others under the Protection of Women from Domestic Violence Act, 2005 including the respondent herein, as 8th respondent in D.V.No.1194 of 2013 on the file of the learned Judicial Magistrate-III, Coimbatore. The grievance of the respondent is that at the time of serving the summons, about 30 persons were present and they came to know that the respondent was involved in criminal proceedings and thereby, his reputation got spoiled and he is holding respectable posts in two NGOs, viz., Foundation for Education and Development, Thoramkurichi, Natham as Financial Trustee and in Consortium of Indian Farmers Association, Natham as Executive Committee Member and he is involved in many social activities to serve the needy people. Therefore, having felt derogation for the accusation made by the petitioner herein against him, the respondent has initiated above said proceedings in C.C.No.102 of 2014 against the petitioner for the offences punishable under Sections 499 and 500 IPC.
4. Being aggrieved by the same, the petitioner has come forward with the present petition, for quashing the same.
5. Mr.I.Abrar Md.Abdullah, learned counsel appearing for the petitioner would contend that the respondent herein has initiated proceedings seeking prosecution against the petitioner under Sections 499 and 500 IPC with baseless allegations and even if taken on their face value, would not disclose any offence punishable under Section 499 and 500 IPC. He contended that the respondent has not made out the case of defamation against the petitioner since it was not specified as to when the petitioner had uttered, made or published an imputation so as to harm or defame him in public eye. He has pointed out that the petitioner has made accusation against the respondent in good faith which squarely falls under Eighth exception of Section 499 IPC and therefore, no ingredients were made out by the respondent and therefore, the entire proceedings in C.C.No.102 of 2014 are liable to be quashed. He also contended that filing of the complaint by the respondent against the petitioner with false imputations and without proper materials, is nothing but clear abuse of process of law, which cannot be entertained. In support of his contentions, the learned counsel relied upon decisions, viz., ?.Rajendra Kumar Sitaram Pande & Othrs versus Uttam and another?. reported in ?.AIR1999SC1028; ?.Kamlesh Kaur versus Lakhwinder Singh and another?. reported in ?.(2009) 4 RCR (Cri) 663?. and ?.Sanjay Pinto and another verus A.Kamraj?. reported in ?.2012 (2) CTC352.
6. In ?.Rajendra Kumar?. case (cited supra), the Hon?.ble Supreme Court has held that in para 7 as under: ?.7. The next question that arises for consideration is whether reading the complaint and the report of the Treasury Officer which was obtained pursuant to the Order of the Magistrate under sub-section (1) of Section 201, can it be said that a prima facie case exists for trial or Exception 8 to Section 499 clearly applies and consequently in such a case, calling upon the accused to face trial would be a travesty of justice. The gravamen of the allegations in the complaint petition is that the accused persons made a complaint to the Treasury Officer, Amravati, containing false imputations to the effect that the complainant had come to the office in a drunken state and abused the Treasury Officer, Additional Treasury Officer and the Collector and circulated in the office using filthy language and such imputations had been made with the intention to cause damage to the reputation and services of the complainant. In order to decide the correctness of this averment, the Magistrate instead of issuing process had called upon the Treasury Officer to hold an enquiry and submit a report and the said Treasury Officer did submit a report to the Magistrate. The question for consideration is whether the allegations in the complaint read with the report of the Magistrate make out the offence under Section 500 or not. Section 499 of the Indian Penal Code defines the offence of defamation and Section 500 provides the punishment for such offence. Exception 8 to Section 499 clearly indicates that it is not a defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with regard to the subject- matter of accusation. The report of the Treasury Officer clearly indicates that pursuant to the report made by the accused persons against the complainant, a departmental enquiry had been initiated and the complainant was found to be guilty. Under such circumstances the fact that the accused persons had made a report to the superior officer of the complainant alleging that he had abused the Treasury Officer in a drunken state which is the gravamen of the present complaint and nothing more, would be covered by Exception 8 to Section 499 of the Indian Penal Code. By perusing the allegations made in the complaint petition, we are also satisfied that no case of defamation has been made out. In this view of the matter, requiring the accused persons to face trial or even to approach the Magistrate afresh for reconsideration of the question of issuance of process would not be in the interest of justice. On the other hand, in our considered opinion, this is a fit case for quashing the order of issuance of process and the proceedings itself. We, therefore, set aside the impugned order of the High Court and confirm the order of the learned Sessions Judge and quash the criminal proceeding itself. This appeal is allowed.?.
7. In ?.Kamles Kaur?. case (cited supra), the Punjab and Haryana High Court has held that making a complaint to the police would not come with the purview of defamation, but it would be within Eighth Exception to Section 499 IPC, with the following observation in para 12. ?.12. Neither the petitioner has published nor defamed the complainant in public eye but the petitioner made a complaint to the police. The complaint made would be protected under Eighth Exception to Section 499 IPC.?.
8. Relying on the above decisions, the learned counsel would contend that the complaint made against the respondent for the allegations made therein in good faith, would squarely cover the Exception 8 to Section 499 which clearly indicates that it is not a defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with regard to the subject-matter of accusation.
9. In ?.Sanjay Pinto?. case (cited supra), this Court while following the authorities of the Hon?.ble Supreme Court, has held that the width of the powers of the High Court under Section 482 Cr.P.C. and Article 226 of the Constitution is unlimited whereunder the High Court could in the interest of justice make such order as may be required to secure the ends of justice and to prevent abuse of the process of any Court. Therefore, relying upon this, the learned counsel for the petitioner would contend that in order to prevent the abuse of process of Court, the High Court, while exercising its inherent power under Section 482 Cr.P.C., can entertain the petition even at the prima facie stage itself.
10. On the other hand, Mr.R.Anand, learned counsel appearing for the respondent would contend that there were matrimonial disputes between the petitioner and her husband and his relatives and the respondent, who is a friend of the husband of the petitioner, has nothing to do with the matrimonial affairs or disputes, but he has been unnecessarily dragged into the issue by citing him as 8th respondent in the proceedings initiated by the petitioner, invoking Section 12 of the Protection of Women from Domestic Violence Act and in that process, the respondent being a respectful person in the society, was served with summons in the presence of the local persons, by which, his reputation got spoiled and therefore, in order to erase bad impression from the eye of the society, he has rightly initiated the proceedings to prosecute the petitioner by invoking Sections 499 and 500 IPC and this Court, while exercising inherent power under Section 482 Cr.P.C., cannot quash the proceedings at this stage since the contention of the petitioner whether she made complaint about the respondent in a ?.good faith?. and falls within the Eighth Exception of Section 499 IPC, cannot be decided and it is entirely a question of fact requires to be established by adducing evidence. In support of his contentions, the learned counsel relied upon the decisions, viz., ?.Jeffrey J.Diermeier and another versus State of West Bengal and another?. reported in ?.(2010) 6 SCC243 and ?.M.N.Damini versus S.K.Sinha and Others?. reported in ?.(2001) 5 SCC156.
11. Heard the learned counsel on either side and perused the entire materials available on record.
12. It is needless to mention the factual matrix of the case inasmuch as the question that falls for consideration is a pure question of law that can be decided without reference to the facts of the case.
13. As per Section 482, this Court can invoke its inherent jurisdiction to make orders as may be necessary, viz., i) to give effect to any order under this Code; ii) to prevent abuse of the process of Court; and iii) otherwise to secure the ends of justice. While exercising such jurisdiction, this Court would not ordinarily conduct an enquiry with regard to the evidence produced before Court as to whether it is reliable or not or whether it is sufficient for a conviction. At this stage, this Court is bound to consider the prima facie satisfaction of a case.
14. Being denigrated over the proceedings initiated by the petitioner invoking Section 12 of the Protection of Women from Domestic Violence Act citing him as 8th respondent, wherein, summons through Court were served on him in the presence of the local people, the respondent has filed a complaint under Section 200 Cr.P.C. before the learned Judicial Magistrate, Natham which was taken cognizance as C.C.No.102 of 2014 to prosecute the petitioner for the offences under Sections 499 and 500 IPC.
15. The specific contention of the petitioner in this case is that she filed the above said case is that the respondent herein has initiated proceedings seeking prosecution against the petitioner under Sections 499 and 500 IPC with baseless allegations and even if taken on their face value, would not disclose any offence punishable under Section 499 and 500 IPC and that the petitioner has made accusation against the respondent in good faith which squarely falls under Eighth exception of Section 499 IPC and hence, no ingredients were made out by the respondent and therefore, the entire proceedings in C.C.No.102 of 2014 are liable to be quashed.
16. In this regard, it is worthwhile to refer to the decision of the Hon?.ble Supreme Court in ?.Jeffrey J.Diermeier and another versus State of West Bengal and another?. reported in ?.(2010) 6 SCC243, wherein, it has been held that the mere plea that a person believed that what he had stated was in ?.good faith?. is not sufficient to accept his defence unless he justify the same by adducing evidence. The observation made by the Apex Court in para 39 and 40 of its judgment, may profitably be extracted as hereunder thus: ?.39. The question has to be considered on the facts and circumstances of each case, having regard to the nature of imputation made; the circumstances on which it came to be made and the status of the person who makes the imputation as also the status of the person against whom the imputation is allegedly made. These and a host of other considerations would be relevant and required to be considered for deciding the appellants?. plea of ?.good faith?. and ?.public interest?.. Unfortunately, all these are questions of fact and matters for evidence. ?.40. In the instant case, the stage for recording of evidence had not been reached and, therefore, in the absence of any evidence on record, we find it difficult to return a finding whether or not the appellants have satisfied the requirements of ?.good faith?. and ?.public good?. so as to fall within the ambit of the Tenth Exception to Section 499 IPC. Similarly, it will neither be possible nor appropriate for this Court to comment on the allegations levelled by Respondent 2 and record a final opinion whether these allegations do constitute defamation. Reading the complaint as a whole, we find it difficult to hold that a case for quashing of the complaint under Section 482 of the Code has been made out. At this juncture, we say no more lest it may cause prejudice to either of the parties.?.
17. It is also useful to refer the decision in ?.M.N.Damini versus S.K.Sinha and Others?. reported in ?.(2001) 5 SCC156, wherein, the Hon?.ble Supreme Court has held as under: ".For deciding whether the criminal proceedings should be allowed to continue or the same should be quashed, two aspects are to be satisfied:(1) whether the uncontroverted allegations, as made in the complaint, prima facie establish the offence, and (2) whether it is expedient and in the interest of justice to permit a prosecution to continue. On a plain reading of the order of the Magistrate issuing summons to the respondents, keeping in view the allegations made in the complaint and sworn statement of the appellant, it appears that a prima facie case is made out at that stage. There are no special features in the case to say that it is not expedient and not in the interest of justice to permit the prosecution to continue. The Single Judge of the High Court failed to apply this test. The High Court could not say at that stage that there was no reasonable prospect of conviction resulting in the case after a trial. Assuming that the imputations made could be covered by Exception 9 of Section 499 IPC., several questions still remain to be examined - whether such imputations were made in good faith, in what circumstances, with what intention, etc. All these can be examined on the basis of evidence in the trial. Having regard to the facts of the case it must therefore, be held that the High Court committed a manifest error in quashing the criminal proceedings exercising jurisdiction under Section 482 Cr.PC.".
18. Therefore, as per the dictum of the Hon?.ble Supreme Court narrated supra, I am of the view that the burden is on the petitioner to prove that she made allegations against the respondent herein in ?.good faith?. by adducing evidence. As rightly contended by the learned counsel for the respondent, without evidence, the plea of ?.good faith?. cannot be determined and it is a question of fact which requires evidence. Admittedly, in the instant case, the stage for recording of evidence has not been reached. Therefore, I am of the view that in the absence of evidence, it is difficult to come to a conclusion that whether the petitioner has satisfied the requirements of ?.good faith?. which squarely falls within the ambit of Eighth Exception to Section 499 IPC. Further, it is not possible for this Court at this prima facie stage that whether the allegations made by the petitioner against the respondent do not constitute defamation in order to quash the proceedings by invoking inherent jurisdiction of this Court under Section 482 Cr.P.C. For the foregoing reasons, this Crl.Original Petition is dismissed. gsr/Suk 27-11-2014 Index: Yes/No Internet: Yes/No S.VAIDYANATHAN, J.
gsr/Suk CRL.O.P.NO.19578 OF201427-11-2014