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2013 DIGILAW 1090 (KER)

C. K. Assanar v. High of Kerala

2013-12-09

V.K.MOHANAN

body2013
Judgment : 1. The complainant in a prosecution for the offence punishable under Section 500 read with Section 34 of IPC is the appellant as he is aggrieved by the judgment dated 25/01/2002 in C.C.No.811 of 1995 of the court of the Judicial First Class Magistrate Court-I, Cherthala by which the learned Magistrate acquitted the accused 9 in numbers under Section 255(1) of Cr.P.C. 2. The case of the complainant is that he is a senior auditor in the construction wing of Southern Railway and also a social worker and active worker of Kerala Naduvathul Mujahideen. According to the claim of the complainant his organisation is fighting against the superstition prevailing among the muslim community and upholding the basic principles of Islam. As such orthodox members of the community are against the complainant and his organisation. It is the further case of the complainant that he took active steps for the construction of a mosque for the muslims residing at Manakkodam and particularly on the above aspect the accused who are members of Poomkavil Puthenpally Muslim Mahal Sangam are inimical terms with him. So, according to the complainant, with the intention to hurt the reputation of the complainant, the accused published a notice on 20/2/1995 which produced as Ext.P7 wherein it is alleged that the complainant without obtaining membership of Poomkavil Puthenpalli muslim Mahal Sangam register No.A.145/77 of Pattanakkad and without the consent of the mahal and without remitting the fee or informing the details of the bride, "by using some unknown means", married a girl from some other mahal. According to the complainant, this notice lowered his reputation among the community and the accused published the said notice with the knowledge that the same will hurt the reputation of the complainant. Thus, according to the complainant, the accused has committed the offence punishable under Section 500 of IPC. Originally there was only one accused i.e., A1. During the pendency of the above case Crl.M.P.No.2253 of 1993 was moved by which 8 other persons are also sought to be impleaded as accused as they have also involved in the conspiracy on the basis of which Ext.P7 was issued. The court below allowed the said petition and thus 8 more persons impleaded as accused who according to the complainant are the members of the mahal committee and who issued Ext.P7 notice. 3. The court below allowed the said petition and thus 8 more persons impleaded as accused who according to the complainant are the members of the mahal committee and who issued Ext.P7 notice. 3. Initially on receiving the complaint, the sworn statement of the complainant was recorded and after conducting necessary preliminary enquiry, cognizance was taken for the offence punishable under Section 500 of IPC and when the accused appeared, after furnishing the records, the particulars of the offence were read over and explained to the accused, but he pleaded not guilty. After the appearance of the persons who were impleaded as accused as per the order in Crl.M.P.No.2253 of 1993, they were also pleaded not guilty when the particulars of the offence read over and explained to them. Thus, during the trial of the case, from the side of the complainant, besides examining himself as PW.1, two more witnesses were examined as PWs.2 and 3. Exts.P1 to P10 documents were also produced. From the side of the accused DW.1 was examined and Exts.D1 to D5 were marked. The learned Magistrate after considering the entire evidence and materials on record found that there was no intention on the part of A1 to defame PW.1 and there was no malice on the part of DW.1 when he published Ext.P7 notice and not done to harm the reputation of PW.1. Accordingly found that no offence is made out against the accused and thus they are acquitted under Section 255(1) of Cr.P.C. It is the above finding and order of acquittal that are challenged in this appeal at the instance of the complainant. 4. Heard Sri.T.P.Sajan, the learned counsel appearing for the appellant and Sri.Mohammed Puzhakkara, the learned counsel appearing for R2 to R10. Both the counsel for the appellant as well as the respondents advanced several contentions in support of their stand assailing the judgment of the trial court as well as supporting the same. 5. 4. Heard Sri.T.P.Sajan, the learned counsel appearing for the appellant and Sri.Mohammed Puzhakkara, the learned counsel appearing for R2 to R10. Both the counsel for the appellant as well as the respondents advanced several contentions in support of their stand assailing the judgment of the trial court as well as supporting the same. 5. The learned counsel for the appellant vehemently submitted that though the defence taken by the accused was under Exception Nos.1 and 9 of Section 499 of IPC, no proper issue was framed by the learned Magistrate on the basis of such contention and according to the learned counsel, if the defence taken by the accused attracted exceptions to Section 499 of IPC, Section 105 of Evidence Act will come into play and it is for the accused to plea and prove such exception and to convince the trial court that their case will come under the exception and as such, no offence would lie against them. The learned counsel for the respondent also submitted that the trial court did not consider the above aspects. According to the learned counsel for the respondent, in view of the evidence of PW1, it is crystal clear that there is no defamatory imputation against PW1 and according to the learned counsel, even the complainant himself has admitted that Ext.P3 was issued by A1 to the father of PW1, asking him to furnish details of the marriage of his son, namely PW1 and also the details with respect to the bride, but no such details are furnished and hence according to the learned counsel, the facts stated in Ext.P7 are true and correct. From the above point, it is also clear that the accused took the defence of Exception Nos.1 and 9 of Section 499 of IPC. Keeping in mind the above contentions, I have carefully perused the impugned judgment. On my anxious consideration of the judgment it is revealed that the learned Magistrate has not considered the above questions in its correct and legal perspective. In this juncture it is relevant to note that in the impugned judgment, the learned Magistrate has formulated only the following issues for his consideration which reads as follows:- i. Whether Ext.P7 notice was published by A1 to A9 as alleged ? ii. Whether Ext.P7 notice was published by the accused persons with the intention to defame PW1 as alleged ? Iii. ii. Whether Ext.P7 notice was published by the accused persons with the intention to defame PW1 as alleged ? Iii. Whether publication of Ext.P7 defamed PW1 as alleged ? iv. Offence, if any, made out? Suffice to say, no point is considered by the learned Magistrate as to whether the defence taken by the accused would attract Exception Nos.1 or 9 of Section 499 of IPC and there is no such finding. As pointed out by the learned counsel for the appellant, in paragraph 13 and 14 of the judgment, the learned Magistrate has came into certain presumptions, which according to the learned counsel, are incorrect. Both the counsel for the appellant as well as the respondent fairly submitted before me that the learned Magistrate has committed wrong in not considering the defence in its proper perspective. The trend of the defence contention shows that their acts are saved by exceptions 1 and 9 of Section 499 of IPC. If that be so, it was for the accused to specifically plea and prove the same in accordance with Section 105 of the Indian Evidence Act and hence, it is for the court below to consider such a question on the basis of the legal and factual inputs. If that be so, according to me, at this stage, this Court need not consider the contentions advanced by the respective counsels before this Court and the matter can be remanded back to the trial court for fresh disposal after considering the fact that whether the contention of the accused will come under Exception No.1 or 9 of Section 499 of IPC. In the result, this appeal is disposed of remanding the case in C.C.No.811 of 1995 of the court of the Judicial First Class Magistrate-I, Cherthala, to the same court for fresh disposal, particularly considering the question as to whether the plea taken by the accused would come under Exception Nos.1 or 9 of Section 499 of IPC and whether the accused has succeeded in discharging their burden in view of Section 105 of Evidence Act. In order to enable the court below to consider the above questions, and all other connected points afresh, without entering into the merits or demerits of the contentions advanced by the counsel for both the appellant as well as the respondents, the judgment dated 25/01/2002 in C.C.No.811 of 1995 of the court below is set aside. In order to enable the court below to consider the above questions, and all other connected points afresh, without entering into the merits or demerits of the contentions advanced by the counsel for both the appellant as well as the respondents, the judgment dated 25/01/2002 in C.C.No.811 of 1995 of the court below is set aside. The parties are accordingly directed to appear before the trial court on 09/01/2014. Since the case pertained to the year 1995, the learned Magistrate is directed to dispose the same as expeditiously as possible, at any rate, within 6 months from 09/01/2014. The Registry is directed to transmit the records forthwith to the trial court within 10 days from today. Considering the long pendency of the dispute and particularly when the dispute is between two fractions among the Muslim Community and especially the parties are belonged to the same area, according to me, it is advisable to both the complainant as well as the accused, to settle the matter amicably and if such settlement is arrived into, the learned Magistrate is free to dispose the matter accordingly, considering such settlement.