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2015 DIGILAW 556 (MAD)

P. Arulappan v. M. Ayilsamy

2015-02-02

M.SATHYANARAYANAN

body2015
Judgment 1. By consent, the main revision itself is taken up for final disposal. 2. The revision petitioner is the private complainant in C.C.No.81 of 2008 on the file of the Court of Judicial Magistrate, Valliyoor and it was filed to prosecute the respondents herein for the commission of offence punishable under Section 500 of IPC. According to the revision petitioner / private complainant, he is a retired professor and his wife is the proprietor of Kalvi Press at Panagudi and they are Protestant Christians and the first respondent in this revision / first accused is a Hindu and the second respondent / second accused is a Catholic Christian and both of them belong to Udayar and Moopanar communities (also called as “Parkava Kulam”). The respondents / accused had circulated a defamatory letter marked as Ex.P5 dated 12.11.2001 stating amongst other things, that the revision petitioner herein / private complainant has been ex-communicated from Parkava Kulam on the ground that his father-in-law has filed a civil suit against the individuals and thereby brought the name and fame of the community to disrepute. 3. After recording the sworn statement, the private complaint was taken on file in C.C.No.81 of 2008 by the Court of Judicial Magistrate, Valliyoor and summons were issued, and on appearance, the first respondent / first accused pleaded not guilty to the charge. During the course of the trial, the private complainant has examined himself as P.W.1 and one Iruthayammal has been examined as P.W.2 and Exs.P1 to P13 were marked. 4. After completion of the complainant's side evidences, both the accused were questioned under Section 313(1)(b) of the Code of Criminal Procedure, 1973, with regard to the incriminating circumstances made out against them in the evidence tendered by the prosecution and they denied it as false. 5. On behalf of the accused, no oral evidence was let in and no documents were marked. 6. 5. On behalf of the accused, no oral evidence was let in and no documents were marked. 6. The Trial Court, on consideration of the oral and documentary evidences, has found that the respondents herein / accused were guilty of having committed offence under Section 500 IPC and taking into consideration of the age of the accused and the factual matrix of the case, sentenced them to undergo two months simple imprisonment with a fine of Rs.1,000/- which is to be paid as compensation to the complainant under Section 357 Cr.P.C. and in case of default, they were directed to undergo one week simple imprisonment. The Trial Court has also ordered set-off under Section 428 of the Code of Criminal Procedure, with regard to the period of incarceration already undergone by them, vide judgment dated 03.05.2011. The accused, aggrieved by the conviction and sentence passed by the trial Court, filed an appeal in C.A.No.71 of 2011 on the file of the Sessions Court, Tirunelveli, which in turn, made over the case to the Court of Additional Sessions Judge / Fast Track Court No.1, Tirunelveli (Full In-charge). 7. During the course of arguments in the appeal, the counsel for the accused made a statement that the accused circulated a letter on the wish and will of the people belonging to the particular community and individually they have not defamed the private complainant, and taking into consideration of the fact that they are the first offenders, the sentence of imprisonment may be modified to one of fine. The Lower Appellate Court, on consideration of the said statement, has found that the community people convened a meeting and thereafter took a decision to ex-communicate him from the said community and though there was a mediation to settle the issue amicably, it was not agreed by the private complainant and therefore, found that the sentence of fine instead of sentence of imprisonment would meet the ends of justice and accordingly, modified the sentence awarded by the Trial Court by directing them to pay an additional fine of Rs.9,000/- each and in default, to undergo three months simple imprisonment, vide judgment dated 09.11.2011. The private complainant, aggrieved by the modification of sentence of imprisonment to one of fine, has filed this revision. 8. The private complainant, aggrieved by the modification of sentence of imprisonment to one of fine, has filed this revision. 8. The learned counsel for the revision petitioner has drawn the attention of this Court to the judgment rendered by the Trial Court and would submit that the Trial Court, on a threadbare analysis of the oral and documentary evidence, has correctly found that on account of the impugned communication, the petitioner has been ex-communicated from the community itself and therefore, he faced a social boycott, though he was a retired professor and a man of repute, and therefore, the Lower Appellate Court ought to have dealt with the matter on merits. Hence, the learned counsel for the petitioner prays for interference of the judgment of the Lower Appellate Court. 9. Per contra, the learned counsel for the respondents / accused, would vehemently contend that the respondents / accused have no individual grievance against the revision petitioner / private complainant and since the entire community people on account of the act of the private complainant wanted to ex-communicate him, such a Resolution came to be passed and it was an unanimous decision and in any event, since it was circulated only among the community people, it cannot be said that the petitioner was defamed. 10. This Court has carefully considered the rival submissions and also perused the materials available on record before this Court. 11. It is well settled position of law, as enunciated by the catena of decisions rendered by the Hon'ble Supreme Court, the freedom of speech and expression includes publication and making representation to the authorities, however, malicious and defamatory statements in the name of freedom of expression could not be justified. 12. A perusal of the judgment of the Trial Court would disclose that the document imputing defamatory allegations were circulated among the members of Parkava Community and the Court has also compared the signatures of both the accused, marked as documents Exs.C1 and C2 with Ex-Communication marked as Ex.P5, and came to the conclusion that on account of the said communication, the name, fame and reputation of the revision petitioner has been tarnished and ex-communicating him for withdrawing the civil case, is per se illegal. 13. 13. Though in the grounds of appeal before the Lower Appellate Court, points were urged on the merits of the reasons assigned by the Trial Court, during the course of arguments, the learned counsel for the appellants therein / accused chose to advance the arguments only on the question of modification of sentence, and the Lower Appellate Court has also modified the sentence of imprisonment into one of enhancement of fine. 14. The learned counsel for the revision petitioner would submit that this Court, taking into consideration of the reasons assigned by the Trial Court, can set aside the modification of sentence passed by the Lower Appellate Court and convict the accused. However, this Court, in exercise of its revisional jurisdiction, cannot do so. Having taking into consideration of the fact that grounds were also raised in the grounds of appeal before the Lower Appellate Court as to the merits of the case and further taking into consideration the reasons assigned by the Trial Court while recording conviction and imposition of sentence of imprisonment, this Court is of the view that the matter has to be remanded once again to the Lower Appellate Court for fresh adjudication on merits. 15. In the result, the Criminal Revision Case is partly allowed, and the judgment of the learned Additional Sessions Judge / Fast Track Court No.1, Tirunelveli passed in Crl.A.No.71 of 2011, dated 09.11.2011 is set aside and it is remanded to the Lower Appellate Court for fresh adjudication on merits. The revision petitioner as well as the respondents herein are directed to extend their maximum cooperation for early disposal of the appeal and the Lower Appellate Court shall make every endeavour to dispose of the appeal on or before 27.04.2015.