O R D E R
V. RAMKUMAR, J
CRL.R.P. NO. 2918 OF 2009
DATED: 22nd day of March, 2010
The revision petitioner who was the complainant in a
private complaint filed as C.M.P. No. 2480 of 2009 before the
J.F.C.M. I, Cherthala, alleging offences punishable under
Sections 500 and 501 I.P.C. against the Ist respondent herein,
challenges the order dated 20-8-2009 passed by the Magistrate
dismissing the complaint presumably under Section 203 Cr.P.C.
after recording the sworn statement of the complainant.
2. Eventhough the accused to whom no process was
issued by the Magistrate, has no right to be heard in this
revision, since the revision petitioner had made the accused a
party respondent and also since this Court ordered notice to him,
I also heard Advocate Sri.Azad Babu on behalf of the Ist
THE BACKGROUND FACTS
3. The facts leading to the filing of the aforesaid
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complaint can be summarised as follows:
A) O.S. No. 555 of 2008 before the Munsiff's Court,
Cherthala was a suit filed by the complainant's mother
Kaumari and the complainant against the Ist
respondent herein (accused) and his wife seeking a
declaration of the right of easement over a way and also
for consequential injunction. There was an interim
prohibitory injunction granted by the Civil Court in
favour of the complainant and his mother.
B) Alleging that the interim injunction was violated by
the defendants by causing obstructions to the way in
dispute the plaintiffs filed a petition for an interim
mandatory injunction. Eventhough the said application
as opposed, the Civil Court allowed the application.
Accordingly, an interim mandatory injunction was
granted and the same was implemented and the status
quo ante was restored.
C) The defendants filed an application before the Civil
Court to vacate the orders of interim prohibitory as well
as mandatory injunction. That application was
supported by an affidavit filed by the Ist defendant (Ist
respondent) herein. According to the complainant,
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paragraphs 4, 5 and 9 of the said affidavit contained
defamatory allegations against the complainant. I am
only quoting the opening portion of paragraph 9 of the
said affidavit which reads as follows:-
"The second plaintiff (revision petitioner herein)
is a thief and a lecher who cannot be permitted
to set his foot on the courtyards of houses where
ladies of honour and self esteem reside. He is an
immoral and anti-social person who has amassed
wealth undeservingly through illicit distillation,
bootlegging etc. and carries on in the company
of such elements. He is a criminal who is
prepared to commit any heinous act".
D) Eventhough the complainant sent a lawyer notice to
the accused requesting him to withdraw the false
imputations made against the complainant, he has not
only acceded to the said request but has also caused a
reply notice to be sent through his lawyer reiterating his
stand and raising untenable contentions. Thereupon the
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complainant filed the aforesaid private complaint before
the Criminal Court alleging that the Ist defendant/Ist
respondent has committed the offence of defamation as
defined under Section 499 I.P.C. and punishable under
Sections 500 and 501 I.P.C.
ARGUMENTS FOR THE ACCUSED
4. Advocate Sri.Azad Babu, the learned counsel
appearing for the Ist respondent/accused made the following
submissions before me in support of the impugned order
dismissing the complaint:-
The mere filing of an affidavit before the Civil Court
after giving a copy of the same to the complainants' counsel
will not amount to "publication" for the purpose of Section
499 I.P.C. Even assuming that the statements in the affidavit
are defamatory, as rightly observed by the Court below, those
statements enjoy absolute privilege since they were made in the
course of judicial proceedings. (Vide Gopalankutty Nair v.
Sankunni Ezhuthassan - 1971 KLT 393 F.B.). There is no
evidence available at present to show that the imputation in
question has lowered the reputation of the complainant in the
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estimation of others as required under Explanation 4 to Section
499 I.P.C. In any view of the matter, the statement in question
may fall under the Fourth, Fifth or Nineth Exception to Section
499 I.P.C. so as to take it out of the offence of defamation.
Moreover, as was held by the Madras High Court in
Gurubasayya v. Siddalingappa - AIR 1940 Madras 677, the
complaint ought to have been filed by the Civil Court.
5. I am afraid that I find myself unable to agree with
the above submissions made on behalf of the accused. The
learned Magistrate has also substantially based his order on the
6. "To publish" means to make known to others or to
communicate to a third person. (See Webster's Comprehensive
dictionary - International Edition). Publication will be complete
if after making or printing the defamatory statement, it is made
available to the public. (Vide Collector of Central Excise v.
New Tobacco Company and Others - (1998) 8 SCC 250).
Publication includes pleadings, affidavits etc. which are filed in
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Courts. (In Re Ajay Kumar Pandey, Advocate (1998) 7
Supreme 473). The filing of an affidavit is publication. An
affidavit is not a secret document. It forms part of the Court
records and is available to and accessible by the Public. (See
J.R. Parashar, Advocate and Others v. Prasant Bhushan,
Advocate and Others (2001) 6 SCC 735). Once a statement
is filed in a Court of law such statement can be taken as
published (See Prabhakaran v. Gangadharan - 2006 (2)
7. If a party to a judicial proceeding is prosecuted for
the criminal offence of defamation in respect of a statement
made in such judicial proceeding either on oath or otherwise,
his criminal liability must be determined by reference to the
provisions of Section 499 I.P.C. alone. The English common law
doctrine of absolute privilege can be set up as a defence only in
a suit for damages under the Law of Torts. No such privilege is
recognized by the Indian Penal Code beyond the limits of the
Exceptions embodied in Section 499 of the Indian Penal Code.
The said provision together with its Exceptions forms a
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complete Code in itself with regard to the criminal liability of
a person accused of the offence of defamation. Every
defamatory statement not coming within any of the 10
Exceptions to Section 499 I.P.C. is punishable under Section
500 I.P.C. The Court cannot engraft thereupon any further
exceptions derived from the common law of England or based
on grounds of public policy. (See also Haji Ahmad Hussain
v. State - AIR 1960 Allahabad 623 = 1960 Crl.L.J. 1296).
Ordinarily, the question as to whether the statement in a given
case falls under any of the ten Exceptions to Section 499 I.P.C.
will have to be decided only after trial and the burden to bring the libel or slander under any of those Exceptions is, by virtue ofSection 105 of the Indian Evidence Act, on the accused. The
accused may discharge the said burden by means of
preponderance of probabilities. (See Chinnakuttan Nair v.
Kumaran Nair - 1963 KLT 845; Jose v. Thankappan - 1963
KLT 1071; Chandrasekhara Pillai v. Karthikeyan - ILR
1964 Kerala 31; Dasgupta v. State of West Bengal -1968
KLT (SN) 21 (SC) and Narayanan v. Gangadharan - 1982
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8. As mentioned earlier the English Common law doctrine
of privilege is a defence available in a suit for compensation for
defamation under the Law of Torts. Privilege is of two kinds -
absolute and qualified. In cases of qualified privilege it is the
occasion which protects the man who speaks out his mind fully
and frankly without any fear of consequences. No action
under the civil law will lie in respect of a false and defamatory
statement even if made with express malice if such statement is
absolutely privileged. Instances when such statements enjoy the
immunity of absolute privilege are when made in the course of -
i) Parliamentary proceedings.
ii) Judicial proceedings
iii)Military and Naval Proceedings
iv)State Proceedings (Eg. communications
relating to State matters made by one
Minister to another or to the Crown, a
report made by a Police Officer to a
Magistrate under Section 202 Cr.P.C.
[Vide pages 294 and 295 of the Law of Torts _ Ratanlal and
Dhirajlal - 25th Edition.] Gopalakrishnan Nair v. Sankunni
Ezhuthassan (Supra) and Daniel v. Hymavathy Amma
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-1985 KLT 574) are authorities which elucidate the nature and
extent of absolute privilege. It is pertinent to note that going by
the ratio in Daniel's Case (Supra) even under the civil law of
defamation, if the offending statement was absolutely irrelevant
or was made de hors the matter in hand or had no reference to
the matter under inquiry, such statement cannot enjoy the
status of absolute privilege.
9. In cases of qualified privilege, it is not enough if the
plaintiff shows that the offending statement was false and
defamatory, but the plaintiff will have to further prove that the
statement was made with express malice.
(1) Communications made -
i) in the course of legal, social or moral duty
ii) for self protection
iii)for protection of common interest
iv)for public good
(2) reports of Parliamentary and judicial proceedings and
proceedings at public meetings etc.
are instances of qualified privilege if the communications
or reports are made without malice (Vide Law of Torts
(supra) - pages 294 to 304).
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10. Pargraphs 8 in Narayanan's case (supra) - 1982
KLT 378 will indicate that actual loss of reputation need not be
proved. An accused person, as in this case, who takes shelter
under Exception 9 to Section 499 I.P.C. will have to show that
the imputation was made in good faith. In order to claim good
faith the accused must show that before making the imputation
he had made inquiries with due care and attention and that he
was satisfied about the truth of the imputation made by him.
(Vide Sukra Mahto v. Basudeo Kumar - AIR 1971 SC
11. AIR 1940 Madras 677 relied on by the learned
counsel for the Ist respondent cannot obviously apply to the facts
of the present case. In the Madras case the private complaint
though styled as one alleging defamation was really one
involving the commission of an offence punishable under
Section 193 I.P.C. If so, by virtue of Section 195 (1) (b) (ii)
Cr.P.C. the Court alone could have figured as the complainant.
12. The result of the foregoing discussion is that none of
the reasons mentioned by the Cou rt below constitutes a valid
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ground for dismissal of the complaint. The learned Magistrate
who had taken cognizance of the offence should have issued
process to the accused under Section 204 Cr.P.C. The impugned
order dismissing the complaint is set aside. C.M.P. 2480/2009
will stand restored to file and shall be assigned an appropriate
number and shall be dealt with in accordance with law. This
Court shall not be taken as having made any observation on the
merits of the case.
In the result, this Crl.R.P. is allowed as above.
Dated, this the 22nd day of March, 2010.
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