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2018 DIGILAW 173 (KER)

Shine George, S/o Geroge v. State of Kerala

2018-02-21

ANNIE JOHN

body2018
ORDER : The petitioner, who is the third accused in Crime No. 359 of 2010 of Neyyattinkara Police Station for offences punishable under Sections 469 and 501 and 34 IPC, has filed this petition under Section 482 Cr.P.C seeking to quash the charge sheet in C.C. No. 115 of 2012 pending before the Judicial First Class Magistrate Court-I, Neyyattinkara. 2. The case of the prosecution is as follows: CW1, the Secretary of the Federation of Residents Association, Neyyattinkara (FRAN) filed a complaint before the Ombudsman for Local Self Government Institutions for restraining the first accused from collecting unauthorised collection of fee. The learned Ombudsman passed an order restraining the first accused from collecting the market fee. As per the direction of the first accused, the 4th accused printed posters in the FRAN Association's letter pad model in the press named 'Minipapers' owned by the third accused containing a statement which was not in the order of the Ombudsman and handed over it to the first and second accused. The accused persons, with a common intention to defame the Ombudsman and FRAN, pasted the posters on the wall on different places. On 09.03.2010, CW1 filed Annexure A complaint before the Deputy Superintendent of Police, Neyyattinkara, who forwarded the same to the Sub Inspector of Police, Neyyattinkara. 3. The learned counsel for the petitioner submits that the Magistrate can take cognizance of the offence under Section 501 IPC only on a complaint filed before him under Sections 190 and 200 Cr.P.C. It is also contended that in view of specific bar under Section 199 Cr.P.C, the offence under Section 501 IPC will not lie against the petitioner. 4. On 05.03.2010, the Ombudsman passed Annexure E order directing the Municipal Secretary to take steps to stop the illegal collection of market fee. The main prayer in the complaint was not granted by the learned Ombudsman. 5. It is discernible at the outset that the reference made in the complaint which caused defamation is that (i) it defamed the Residents Association and (ii) it defamed the Ombudsman, who passed the order to collect tax from the market. The contention of the de facto complainant is that in the poster appeared in the wall of the market is baseless, malicious and it was published with an intention to defame the association and Ombudsman. The contention of the de facto complainant is that in the poster appeared in the wall of the market is baseless, malicious and it was published with an intention to defame the association and Ombudsman. On behalf of the petitioner, it was submitted that the FIR has to be quashed as it failed to comply with the mandatory requirements of Section 199 of Cr.P.C. That procedure which specially deals with the prosecution for defamation interdicts the Court from taking cognizance of offences under Chapter XXI of IPC (which deals with the offences of defamation) except upon a complaint made by some person aggrieved by the offence. 6. The points to be considered in this case are as follows: 1. Whether the cognizance for the offence of defamation taken by the Magistrate on the basis of the charge sheet filed by the Sub Inspector of Police, Neyyattinkara is sustainable or not. 2. Whether the FRAN association can be treated as an aggrieved person. 7. Sections 469 and 501 of IPC read thus: "Forgery for purpose of harming reputation.—Whoever commits forgery, 1[intending that the document or electronic record forged] shall harm the reputation of any party, or knowing that it is likely to be used for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. 501. Printing or engraving matter known to be defamatory.— Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both." 8. The main contention of the learned counsel for the petitioner is that the offence under Section 501 of IPC is not maintainable. As per Section 199 of Cr.P.C, cognizance of complaints for offence of defamation punishable under Chapter XXI of IPC is barred except where the complaint is lodged by an aggrieved and defamed person. The main contention of the learned counsel for the petitioner is that the offence under Section 501 of IPC is not maintainable. As per Section 199 of Cr.P.C, cognizance of complaints for offence of defamation punishable under Chapter XXI of IPC is barred except where the complaint is lodged by an aggrieved and defamed person. When the aggrieved person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf. It is profitable to extract Section 199 of Cr.P.C, which reads thus: "199. It is profitable to extract Section 199 of Cr.P.C, which reads thus: "199. Prosecution for defamation - (1) No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence: Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf (2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 of 1860) is alleged to have been committed against a person who, at the time of such commission, is the President of India, the Vice-President of India, the Governor of a State, the Administrator of a Union territory or a Minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor (3) Every complaint referred to in sub-section (2) shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him (4) No complaint under sub-section (2) shall be made by the Public Prosecutor except with the previous sanction — (a) of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government; (b) of the State Government, in the case of any other public servant employed in connection with the affairs of the State; (c) of the Central Government, in any other case (5) No Court of Session shall take cognizance of an offence under sub-section (2) unless the complaint is made within six months from the date on which the offence is alleged to have been committed (6) Nothing in this section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such complaint." So, the offences which comes under Chapter XXI of IPC cannot be taken cognizance as it is expressly barred by Section 199 Cr.P.C. Section 499 IPC, which deals with defamation, reads thus: "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, to defame that person." The definition makes it amply clear that the accused must either intend to harm the reputation of a particular person or reasonably know that his/her conduct could cause such harm. Explanation 2 to Section 499 of IPC further states that 'it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.' But in this case, the contents in the notice would not point out a particular person or collection of persons. 9. In Sherin and others v. State of Kerala [ 2014(1) KHC 700 ], it is held that it would be a futile exercise to conduct investigation in respect of offences falling under Chapters XX and XXI of IPC. Final report in such cases cannot be acted upon by the Court. Even if mistakenly a complaint involving offences under Chapter XX or Chapter XXI was happened to be sent for investigation under Section 156(3) Cr.P.C, when the final report is filed, the Magistrate can ignore that final report and proceed on the basis of the original complaint. 10. In (2016) 7 SCC 221 , it is held that no FIR can be filed nor any direction be issued under Article 156(3) Cr.P.C in the matters of criminal defamation where there is a heavy burden on the Magistracy to scrutinise the complaint from all aspects. 11. In Shri Maulik Kotak and ors. v. State of Maharashtra and Janardyhan [2014 Crl.L.J 4235] it is held that cognizance of complaint for defamation punishable under Chapter XXI of IPC is barred except where the complaint is lodged by an aggrieved and defamed person. No one who was ill-motivated to harass or prosecute the accused, could be allowed to substitute the aggrieved and defamed person in prosecution for defamation case. 12. In respect of the offence of defamation, Section 199 Cr.P.C mandates that the Magistrate can take cognizance of the offence only upon receiving a complaint by a person who is aggrieved. No one who was ill-motivated to harass or prosecute the accused, could be allowed to substitute the aggrieved and defamed person in prosecution for defamation case. 12. In respect of the offence of defamation, Section 199 Cr.P.C mandates that the Magistrate can take cognizance of the offence only upon receiving a complaint by a person who is aggrieved. This limitation on the power to take cognizance of defamation, the rationale purpose of to discourage the filing of the frivolous complaint, would otherwise clog the Magistrate Courts. 13. In the present case, the complainant association cannot be properly described as a person aggrieved within the meaning of Section 199 (1) Cr.P.C as there was no specific injury caused to any of them. The same has been reiterated in S. Khushboo v. Kanniammal and another [ (2010) 5 SCC 600 ]. In that it is held that the Magistrate can take cognizance of offence only upon receiving a complaint by a person who is aggrieved. 14. It is true that the Secretary of the FRAN Association has approached the SHO, Neyyattinkara with a complaint stating that the pasting of the posters on the wall of the market area caused defamation to the FRAN Association as well as the Ombudsman. In Subramanian Swamy v. Union of India, Ministry of Law and others [ (2016) 7 SCC 221 ], wherein the expression 'aggrieved' used in Section 199 of Cr.P.C is defined. The expression 'some person aggrieved' refers to a definite identifiable person who sustained specific legal injury which is to be determined by court on the basis of facts of each case. It will require a due deliberation of facts. Hence that expression cannot be alleged to be too wide to include any and everyone as a person aggrieved. 15. In M.S. Jayaraj Vs. Commissioner of Excise, Kerala & Ors. [ (2000) 7 SCC 552 [, it is held that "The ‘person aggrieved' means a person who is wrongfully deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. ‘Person aggrieved' means a person who is injured or one who is adversely affected in a legal sense." 16. As per the decision cited above, it has been borne out that only an identifiable aggrieved person can approach to rectify his grievance. ‘Person aggrieved' means a person who is injured or one who is adversely affected in a legal sense." 16. As per the decision cited above, it has been borne out that only an identifiable aggrieved person can approach to rectify his grievance. A restriction was imposed under Section 199 Cr.P.C so as to curtail the filing of the cases. 17. In Charmesh Sharma v. State of Rajasthan and another [2012 Crl.L.J 2115], it is held that the defamed person filing a complaint must be a person aggrieved. In that, case the complainant was not an aggrieved person and therefore the complaint filed by him was rightly rejected for want of jurisdiction. 18. In Ananda Bazar Patrika (P) Ltd. and anr. v. State of West Bengal and another [2005 Crl.L.J. 1126], it is held that the words or imputation complained of must relate to some particular person or persons whose identity can be established. It is alleged in the petition of complainant that the alleged defamation have been made against the lawyer of the courts as a class which cannot constitute an offence against a collection of persons who can be defamed by the operation of Explanation 2 of Section 499 of IPC. It is further held that the complainant must be said to be an aggrieved person within the meaning of Section 199 of Cr.P.C. 19. In Nazeem Bavakunju v. State & others [ 1987 (2) KLT 755 ], it is held that the court is not expected to take cognizance of any petition which is not filed by an aggrieved person. 20. In K.M. Mathew and others v. Balan [ 1984 KLT 893 ], it is held that a complaint can be filed by anybody, whether he is an aggrieved person or not. In relation to offences covered by Sections 499 to 502 occurring in Chapter XXI of IPC, only an aggrieved person can move the Magistrate. The Section is mandatory. If a complaint is filed by one who is not an aggrieved person, the trial and conviction would be void. 21. In G. Narasimhan & others v. T.V. Chokkappa (para 13 and 14), it is held that only a definite and distinguished body would amount to a 'collection of persons' referred to in Section 499 IPC r/w Explanation 2 thereto. If a complaint is filed by one who is not an aggrieved person, the trial and conviction would be void. 21. In G. Narasimhan & others v. T.V. Chokkappa (para 13 and 14), it is held that only a definite and distinguished body would amount to a 'collection of persons' referred to in Section 499 IPC r/w Explanation 2 thereto. So 'FRAN' is a residents association and it contains several persons and the de facto complainant being the Secretary of the Residents Association is not an aggrieved person. Therefore, the complaint filed by the Secretary before the police stating the offences which comes under Chapter XXI of IPC cannot be taken into account as it is expressly barred by Section 199 Cr.P.C. 22. In G. Narasimhan & others v. T.V. Chokkappa (supra), the Apex Court has sufficiently illumined the path resorted to the legal action. Section 199 Cr.P.C engrafts an exception to the general rule. In relation to offences covered by Section 499 to 502 IPC occurring chapter XXI of IPC only an aggrieved person can move the Magistrate. This Section is mandatory. If a complaint is filed by one who is not an aggrieved person, it is not maintainable. Under Section 499 read with Explanation 2, a defamatory imputation against a collection of persons would fall within the definition of defamation. The language of the 'explanation' is not doubt wide. Nevertheless, the collection of the persons must be an identifiable body so that it is possible to say with definiteness that the particular group of persons, as distinguished from the rest of community, was defamed. The identity of the collection of persons must be established as relatable to the defamatory words or imputations. 23. In M/s Zandu Pharmaceutical Works Ltd. & Ors. Vs. Mohd. Sharaful Haque & Ors. [ AIR 2005 SC 9 ], it is held that criminal proceedings can be quashed, but such a power is to be exercised sparingly and only when such an exercise is justified by the tests that have been specifically laid down in the statutory provisions themselves. It was further observed that superior courts "may examine the questions of fact" when the use of the criminal law machinery could be in the nature of an abuse of authority or when it could result in injustice. 24. In this case, the Secretary of the FRAN Association moved a complaint before the SHO, Neyyattinkara. It was further observed that superior courts "may examine the questions of fact" when the use of the criminal law machinery could be in the nature of an abuse of authority or when it could result in injustice. 24. In this case, the Secretary of the FRAN Association moved a complaint before the SHO, Neyyattinkara. On that complaint, he has conducted an investigation in the case and filed a charge sheet before the Magistrate. The de facto complainant is representing the FRAN Association. If the Ombudsman is aggrieved by the act of the petitioners, definitely he would have filed a complaint with the permission of the State Government or the Central Government and the same shall be filed through the Public Prosecutor. The Magistrate ought to have considered Section 199 of Cr.P.C which engrafts an exception to the general rule in relation of the offences covered under Sections 499 and 501 IPC occurring in Chapter XXI of IPC. Section 506 IPC will come into play under Chapter XXI of the Cr.P.C. So, in order to prevent abuse of criminal law remedy, the requirements of Section 199 Cr.P.C is declared as mandatory. It is well established that the collection of persons must be an identifiable body so that it is possible to say with definiteness that a particular group of persons as distinguished from the rest of the community was defamed. In this case, the complainant has no such case. 25. Applying the above principles, I am of the view that the pasting of the offending notice appears in the market area is not against an independent person. The arguments advanced by the petitioner's counsel that the police is not the authority to register a crime on the strength of the complaint filed by the de facto complainant is sustainable. In fact, the offences as quoted by the prosecution come within the purview of Chapter XXI of IPC. In order to take cognizance, the aggrieved person has to approach the concerned Magistrate and file a complaint which has to be adjudicated under Section 200 of Cr.P.C. 26. For the grounds as mentioned above, I find that the cognizance taken by the Magistrate is without understanding the gist of Section 199 Cr.P.C. Therefore, the cognizance taken against accused Nos. 3, the petitioner herein, is only to be quashed by invoking the powers under Section 482 Cr.P.C and I do so. For the grounds as mentioned above, I find that the cognizance taken by the Magistrate is without understanding the gist of Section 199 Cr.P.C. Therefore, the cognizance taken against accused Nos. 3, the petitioner herein, is only to be quashed by invoking the powers under Section 482 Cr.P.C and I do so. This Crl.M.C. is allowed as above.