Indian Penal Code (IPC)
Section 499. Defamation
Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, of defame that person.
Explanation 1-It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2-It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3-An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4-No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.
I don't think it is a fit case to file complaint under 500 IPC .
KIndly note this ruling also
1989 (2) KLT 696
K. Sreedharan, J.
Kader v. Fousia
Crl. M.C. No.1184 of 1988
Decided on 6th September, 1989
Penal Code 1860, S.499 - Reply notice sent by lawyer for accused to complainants lawyer imputing defamatory statements - If can be treated as constituting publication - Complainant coming to know of the contents from her lawyer - Communication between counsel and client if amounts to publication.
Reply notice sent by petitioners’ counsel to the counsel who sent notice on behalf of the complainant can be taken as notice to the complainant herself. This is a communication from the petitioners to the complainant. Communication from accused to complainant directly cannot be treated as constituting publication falling within the purview of S.499 of the Penal code. Complainant could have come to know of the contents of the notice from her counsel. Communication between counsel and client cannot amount to publication. So, if the complainant’s advocate had translated the reply notice sent by petitioners for the benefit of the complainant and the complainant came to know of the contents from her counsel there could not have been any publication of the contents of the reply notice. Complainant after getting the reply notice from her counsel took it to third parties and gave them chance to read the same. The action of the complainant amounted to publication of the notice. But for such publication ingredients of S.499 could not have been satisfied. Since that publication was not the act of the petitioners they cannot be penalised for the same. (Para 3)
First petitioner is the father of the second petitioner. Respondent is the wife of the second petitioner. On account of difference of opinion respondent is living away from the petitioners. She sent lawyer notice to the petitioners claiming return of the gold ornaments taken from her and maintenance. On receipt of this notice by the petitioners they caused to sent a reply notice to the respondent’s counsel. In that notice it was sated as follows:
“My clients say that after the marriage your client was living at her house as well as at my clients’ house. After six months of their marriage disregarding all her conjugal duties your client came into contact with one Asheraf, who is her neighbour at the connivance of your client’s mother. My clients state that she is still having an illicit s*xual laison with him. The said Asheraf is a regular visitor of your client’s house. My clients say that they are having all the evidence to prove your client’s s*xual contacts with the said Asheraf. Your client’s mother was trying to obtain divorce from my client Basheer by resorting any means. Your notice itself is also caused to be sent as a device to obtain divorce from my client attributing false allegations against my clients. There is no scintillia of truth in those allegations.”
The above contents of the notice is defamatory to the respondent. Hence she filed a private complaint before the Judicial First Class Magistrate Court. In support of the complaint she gave sworn statement. On the basis of the averments in the complaint and the sworn statement learned Magistrate took cognisance of the complaint for offence under S.500 of the Penal Code. Summons was issued to the petitioners. They have come up praying for quashing the proceedings in exercise of the powers under S.482 of the Code of Criminal Procedure.
2 . The main argument advanced by the learned counsel representing the petitioners is that the ingredients of S.499 IPC are not brought out in the case. In the sense that petitioners have not published any defamatory material, bringing down the reputation of the respondent. Publication, if at all was made, was by the respondent/ complainant herself. On account of such publication if her reputation has been lowered in the estimation of others she alone is responsible for it and petitioners cannot be made liable under S.500 of the Penal Code.
3 . Complainant issued notice through her counsel to the petitioners demanding return of her gold ornaments alleged to have been taken by them. In that notice it was further stated that she has no sufficient means for her sustinence. So she
claimed payment of maintenance. On receipt of that notice, petitioners in their turn caused a reply to be sent through their counsel. Petitioners’ counsel sent the reply, a copy of which is marked as Annexure F, to the complainant’s counsel. From the counsel complainant got the reply notice. Thereafter she showed it to others and consequently others came to know of its contents. Reply notice sent by petitioners’ counsel to the counsel who sent notice on behalf of the complainant can be taken as a notice to the complainant herself. This is a communication from the petitioners to the complainant. Communication from accused to complainant directly cannot be treated as constituting publication failing within the purview of S.499 of the Penal Code. Complainant could have come to know of the contents of the notice from her counsel. Communication between counsel and client cannot amount to publication. So, if the complainant’s advocate had translated the reply notice sent by petitioners for the benefit of the complainant and the complainant came to know of the contents from her counsel there could not have been any publication of the contents of the reply notice. Complainant after getting the reply notice from her counsel took it to third parties and gave them chance to read the same. The action of the complainant amounted to publication of the notice. But for such publication ingredients of S.499 could not have been satisfied. Since that publication was not the act of the petitioners they cannot be penalised for the same.
4 . Counsel representing the respondent brought to my notice to the decision in M.C. Varghese v. T.J. Ponnan (AIR 1970 SC 1876) to contend that a communication from the husband to the wife is publication. According to the counsel, if the communication of a libellous statement by the husband to the wife is publication, communication from counsel to client should also be taken as publication. The learned counsel proceeds to state that the reply notice sent by the petitioners to the complainant’s counsel was handed over to the complainant and that handing over will amount to publication. In the above case Ponnan, husband of Rathi, sent certain letters to Rathi. Those letters contained defamatory imputations concerning Rathi’s father, Mr. Varghese. When Varghese initiated proceedings to prosecute Ponnan for offence under S.500 of the Penal Code their Lordships took the view that the communication from Ponnan to Rathi was publication of the defamatory imputations as far as Mr. Varghese is concerned. This statement of law cannot be pressed into service in the instant case because the defamatory imputation was in the communication sent by petitioners’ counsel to the complainant’s counsel. Communication from complainant’s counsel to the complainant cannot in any way be considered as publication because of the intimate relationship between the client and counsel. The counsel has no separate existence as compared with the client in matters relating to the legal duties. Communication to the counsel is communication to the client. Viewed in this manner the decision cannot be taken as one helping the complainant in this case.
5 . Learned counsel representing the complainant tried to sustain the proceedings before the court below relying on the decision in Rev. Fr. Bemad v. Ramachandran Pillai (1986 KLT 1240). The facts of that case are, in short, as follows: Complainant was denied employment by the accused. Complainant then sent a lawyer notice to the accused. In reply the accused caused a lawyer notice sent to the complainant’s counsel. In that notice it was mentioned that the complainant had misappropriated a sum of Rs. 90/- from the amount given to him by the accused to purchase diesel. Complainant took serious note of the said averment and filed a
complaint alleging that the imputation in the notice is libellous to him. That complaint was sought to be quashed in exercise of the powers under S.482 of the Code. This court refused to quash the proceedings. According to counsel, the facts is on all fours to the one in this case Since this court refused to quash the complaint there learned counsel wants this petition also to be dismissed. I find it difficult to accept this argument. In that case this court proceeded on the basis that the complaint clearly brought out offence under S.499 of the Penal Code. In other words, this court proceeded as if there was due publication of the libellous material. This court was then concerned with the question whether the accused was entitled to the benefit of 9th exemption to S.499. This is clear from the observation in that judgment that “the petitioner (accused) has spread a scandal in the locality that the respondent (Complainant) had committed pilferage in diesel.” Thus the said decision has to be distinguished on facts. In the instant case there is no such allegation that the petitioner spread the scandal in the locality that the respondent is having illicit connection with Sheriff.
6 . In Ramakrishnan v. Subbarama Sasthigal (1986 KLT 1361) this court took the view that sending of a communication to an advocate on behalf of his client is virtually a communication made to the client himself. As such there is no publication of the imputation concerning the client. I am in respectful agreement with this statement of law. The reply notice sent by counsel representing the petitioners to the complainant’s counsel can never be taken as publication of the imputation concerning the complainant because that communication was to the complainant herself. She should not have taken it to others and made it public. Publication, if at all was effected, was done by the complainant. Petitioners never published the alleged libellous material to any one. Unless the imputation was made public and the complainant’s reputation was brought down in the estimation of others by the petitioners they cannot be proceeded against for offence under S.500 of the Code.
7 . As stated earlier, petitioners never published the so called libellous material. Since there was no publication by the petitioners ingredients of S.499 are not brought out against the petitioners. As the complaint does not bring out the ingredients of the offence, the proceedings before the court below have to be quashed. Otherwise, it will result in abuse of process of law.
In view of what has been stated above I allow this petition and quash the proceedings initiated by the complainant.