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Madras High Court · body

2009 DIGILAW 4527 (MAD)

Sr. Corona Mary & Another v. Sister Vanaselvi

2009-10-28

K.MOHAN RAM

body2009
Judgment :- 1. The Petitioners in the above Crl.O.P. are facing trial for the alleged offences under Section 500, I.P.C. in C.C. No.1009 of 2002 on the file of the XIV Metropolitan Magistrate, Egmore, Chennai. The petitioners are seeking to quash all further proceedings in C.C.No.1009 of 2002. 2. The facts, which are necessary for the disposal of the above Crl.O.P. are set out below: a. The respondent while traveling by bus from Bangalore to Tirunelveli on 20.11.2001 was arrested on the allegation that she was carrying notices criticizing the desecration of tribal woman by police under the guise of nabbing sandalwood brigand Veerappan. The respondent was arrested and the case was registered in Cr. No.1559 of 2001 for the alleged offences under Sections 120-B, 153-A, 124-A, I.P.C. Thereafter, she was remanded to judicial custody and by virtue of this Court order, she was enlarged on bail. b. It is alleged in the Complaint that while the respondent was in jail, the first accused served a notice of expulsion from the Service order through three sisters, which, according to the respondent is illegal, unlawful and against all canons of law as it contained slanderous matters which amounts to defamation. In the notice, it is further stated that the respondent was found in Saree and not in her religious dress, which according to the respondent, is false. c. In the communication prepared and dispatched by the first accused, the following matter is found: “TAMIL” which according to the respondent amounts to defamation. d. In the Complaint, it is further alleged that when she had been to Kalugumalai School in which, she is the Headmistress, the second accused is said to have uttered the following words: “TAMIL” which, according to the respondent, amounts to defamation. The above Complaint was taken on file and process was issued to the accused and being aggrieved by the same, the above Crl.O.P. has been filed by the petitioners. 3. Heard both. 4. Mr. S. Shunmugavelayutham, learned Senior Counsel appearing for the learned counsel Mr. A. Thiruvadi Kumar, learned counsel for the Petitioners, contended that the fact that the respondent was arrested while she was traveling from Bangalore to Tirunelveli in connection with the case and she was remanded to judicial custody is not in dispute. 3. Heard both. 4. Mr. S. Shunmugavelayutham, learned Senior Counsel appearing for the learned counsel Mr. A. Thiruvadi Kumar, learned counsel for the Petitioners, contended that the fact that the respondent was arrested while she was traveling from Bangalore to Tirunelveli in connection with the case and she was remanded to judicial custody is not in dispute. It is also not in dispute that the Complaint was arrested and the respondent was found in possession of certain pamphlets pertaining to ill-treatment of tribal woman by Police under the guise of nabbing Forest Brigand Veerappan. 5. According to the learned Senior counsel, when the respondent was arrested and remanded to judicial custody in connection with the Criminal case, the Petitioners as persons in authority, namely, the first petitioner having power to terminate the service of the Respondent can go into the allegations contained in the F.I.R. and Police Report and take disciplinary proceedings against the Respondent. 6. According to the learned Senior Counsel serving of a notice of expulsion from the Service order through three sisters itself is not illegal and unlawful which will not attract the ingredients of the offence under Section 500, I.P.C., and even assuming that it will amount to defamation, since the first accused had initiated disciplinary proceedings as the President of the Service that will attract Exception 7 to Section 499, I.P.C. 7. In support of the said contention, the learned Senior Counsel based reliance on the decision of the Apex Court reported in Rajendra Kumar Sitaram Pande and others v. Uttam and another, 1999 (3) SCC 134 . In the said decision, the scope of Exception 8 to Section 499, I.P.C. is considered and in paragraph 7 of the said decision, it is laid down as under: “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. 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 act 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 gravemen 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.” 8. The learned Senior Counsel also relied on the decision of the Kerala High Court reported in A.D.M. Stubbings and another v. Shellamuthu and another, 1972 Crl.L.J. 968. In the said decision, the learned Judge relied on the decision of the Rajasthan High Court reported in Brij Ballabh v. Shri Satya dev, AIR 1960 Raj 213, wherein it has been laid down as under: “Where accused No.2 in his official capacity as General Manager has placed a report made about his subordinate before the Board of Directors who had appointed him and to whose direction and control he was subject the learned Judge held that the communication was priviledged and even if he had passed any censure against him in good faith, it would have been covered by Exception 7 of Section 499, I.P.C.” 9. After referring to the number of decisions, the learned Judge in A.D.M. Stubbings and another v. Shellamuthu and another, 1972 Crl.L.J 968, has held as under: “In present case, the accusation made against the complainant was that he stole firewood from the Estate, sold in the market and made a profit out of it. It can never be said that this allegation was made maliciously and without any basis. In the enquiry instituted in respect of it. It was found that the allegation was true. In the circumstances, he has no cause for Complaint. The Officers of the Estate were perfectly within their right to have instituted the enquiry and if they are to be hauled up under a charge of defamation, as observed in Halsbury’s cited earlier the administration of justice would be paralysed. The Complaint in the circumstances must be held to be groundless. The Officers of the Estate were perfectly within their right to have instituted the enquiry and if they are to be hauled up under a charge of defamation, as observed in Halsbury’s cited earlier the administration of justice would be paralysed. The Complaint in the circumstances must be held to be groundless. No case against the accused is made out.” 10. On the aforesaid submissions, the learned Legal Aid counsel for the Respondent was heard. 11. The learned counsel submits that the contentions raised by the learned Senior Counsel can be gone into only by the Trial Court and not by this Court at this stage. The learned counsel further submits that the allegations made against the Respondent have not been proved and no enquiry has been conducted. 12. I have considered the submissions made on either side and perused the materials available on record. 13. It is not in despite that the First Petitioner as the Service Generalate of the society of the Congregation of Mother of Sorrows, Servants of Mary and the Second Petitioner is the Correspondent of Luisa Girls High School, Kalugumalai, Tuticorin District, wherein the respondent is employed as Headmistress. One of the objects of the society of the congregation of Mother of Sorrows, Servants of Mary (hereinafter referred to as ‘Society’) is to take charge and manage all the temporal affairs of the said congregation inclusive of all its properties movable and immovable and institution, projects and works wherever the congregation has or shall have these. 14. The first Petitioner is empowered to discharge the following functions: “4. The president shall be responsible for the general administration of the society and its institutions. The President shall have and exercise such other powers as may be delegated by the general Body. 5. The President shall exercise control over the work, religious and secular of the members, in accordance with the rules and regulations of the society and congregation.” 15. The president shall be responsible for the general administration of the society and its institutions. The President shall have and exercise such other powers as may be delegated by the general Body. 5. The President shall exercise control over the work, religious and secular of the members, in accordance with the rules and regulations of the society and congregation.” 15. On coming to know about the arrest of the Respondent in connection with the Cr.No.1559 of 2001 and about her judicial custody and about her failure to wear uniform prescribed for nuns, the matter was discussed in the General Body Meeting of the Society on 20.10.2009, the General Body, in that meeting, considered the conduct of the Respondent, about her arrest and judicial custody and her failure to wear the nun’s uniform while traveling and came to the conclusion that the conduct of the Respondent has brought disrespect to the society and therefore, disciplinary action is warranted against the Respondent and ultimately, the General Body had decided to expel the Respondent from the Congregation. Therefore, according to the learned Senior Counsel what the first Petitioner has done is only to communicate the decision of the General Body to the respondent, which by no stretch of imagination can amount to defamation. 16. At this juncture, it will be useful to refer to Exception 7 to Section 499, I.P.C., which reads as follows: “Seventh Exception – Censure passed in good faith by person having lawful authority over another. It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.” 17. The first Petitioner being the person having lawful authority over the Respondent had only passed an order of expulsion pursuant to the resolution passed by the General Body and this will squarely attract Exception 7 to Section 499, I.P.C. The decision reported in 1972 Crl.L.J 968 also squarely to the facts the case on hand. The words said to have uttered by the Second Petitioner as the correspondent of the said school in which the Respondent worked as Head Mistress also will fall under Exception 9 to Section 499, I.P.C., which will not amount to defamation. The words said to have uttered by the Second Petitioner as the correspondent of the said school in which the Respondent worked as Head Mistress also will fall under Exception 9 to Section 499, I.P.C., which will not amount to defamation. For the aforesaid reasons, all further proceedings in C.C.No.1009 of 2002 on the file of the XIV Metropolitan Magistrate, Egmore, Chennai as against the Petitioners are quashed and the above Crl.O.P is allowed. Connected Crl.M.P. is closed.