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2020 DIGILAW 1024 (KAR)

V. Mariyappa v. Baraguru Virupaksha Reporter

2020-06-09

JOHN MICHAEL CUNHA

body2020
JUDGMENT John Michael Cunha, J. - These four petitions are filed under section 482 of Cr.P.C., challenging the common judgment dated 15.10.2015 passed by the VI Addl. District and Sessions Judge, Tumkur, in Criminal Revision Petition Nos.161, 162, 163 and 164 of 2012, whereby the order dated 05.07.2012 passed by the learned Civil Judge and JMFC, Sira in C.C.Nos.809, 808, 807 and 806 of 2008 has been confirmed. 2. The petitioner herein presented four separate complaints under section 200 Cr.P.C., before the learned Magistrate seeking prosecution of the respondents/accused for the alleged offences punishable under sections 499, 500 and 501(b) of IPC. According to the petitioner/complainant, respondent No.1 being the Reporter and respondent No.2 being the Editor of Praja Pragathi Daily Newspaper, published four articles in their newspaper between 21.01.2006 and 19.08.2007. The contents of the said publications were defamatory. Though the articles did not mention the name of the petitioner yet, the imputations made therein were intended to defame the petitioner. Hence the petitioner sought action against the respondents/accused for the above offences. However, after recording the sworn statement of the petitioner and his witnesses, learned Magistrate was of the opinion that the contents of the publications did not attract the provisions of sections 499, 500 or 501(b) of IPC. Further, learned Magistrate was of the view that the complainant was not individually affected by the said publications as they are general articles and for these reasons, learned Magistrate declined to take cognizance of the alleged offences and consequently, dismissed the complaints by its order dated 05.07.2012. 3. As against the above order, complainant preferred revision petitions before the VI Additional District and Sessions Judge, Tumkur. Even the revisional court concurred with the reasoning of the Trial Court and held that no individual remarks have been made in the said publications against the complainant and that the articles related to the manner in which the police were functioning in the district and as such, the contents of the publications were protected by the Second Exception to section 499 of IPC. The revisional court further held that the name of the petitioner was nowhere mentioned in the offending articles and as such, there was no material to take cognizance of the alleged offences against the respondents and accordingly dismissed the revision petitions. These orders are assailed by the petitioner in these petitions filed under section 482 Cr.P.C. 4. The revisional court further held that the name of the petitioner was nowhere mentioned in the offending articles and as such, there was no material to take cognizance of the alleged offences against the respondents and accordingly dismissed the revision petitions. These orders are assailed by the petitioner in these petitions filed under section 482 Cr.P.C. 4. I have heard learned counsel for petitioner and the learned counsel for respondents. 5. Learned counsel for petitioner reiterated the grounds urged in the complaints and pointed out that though the petitioner is not specifically named in the offending articles, yet a reading of the articles, on the face of it, indicate that the police personnel attached to Sira Police Station were targeted as a class. At the relevant time, petitioner was serving as the Police Inspector of Sira Town Police Station. In the article referred to in Criminal Petition No.4923/2016, petitioner is referred by his name. Even assuming that the petitioner was not specifically named in the offending articles, yet the imputations having been made against the police personnel working in Sira Police Station as a class, by virtue of Explanation 2 to section 499 IPC, the alleged imputations having been made against an identifiable body of persons, the respondents are liable to answer the charge under section 499 IPC and allied offences. In support of his submissions, learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in SAHIB SINGH MEHRA vs. STATE OF UTTAR PRADESH, (1965) AIR SC 1451 . Further placing reliance on another decision of the Hon'ble Supreme Court in the case of BALRAJ KHANNA & Others vs. MOTI RAM, (1971) 3 SCC 399 , learned counsel emphasized that the revisional court has committed an error in holding that the case of the complainant is covered under Second Exception. It is the submission of learned counsel that even accepting that such a defence covered under Second Exception is available to the respondents, yet, the courts below were not justified in dismissing the complaints at the stage under section 203 of Cr.P.C., since defences that may be available to the accused will have to be gone into only during trial and not at the stage of taking cognizance of the alleged offences. Thus, learned counsel for petitioner has sought to set aside the impugned orders and to issue process to the respondents to face trial for the alleged offences. 6. Refuting the submissions, learned counsel for respondents argued in support of the impugned orders contending that both the courts below have rightly held that the publications in question did not relate to the petitioner. Petitioner was not named in any of the articles. Petitioner is not an aggrieved person within the meaning of section 199(1) of Cr.P.C. Complaints under sections 499/500 of IPC could be maintained only at the instance of the aggrieved person. The statements made by the respondents in the publications are general in nature and therefore the petitioner has no cause of action to proceed against the respondents. Even the witnesses examined by the petitioner have nowhere stated that the alleged imputations were directed against the petitioner. The statements made in the articles read as a whole, do not indicate any intention on the part of the respondents to defame the petitioner or to tarnish his image in public and in the said circumstances, courts below have rightly declined to take cognizance of the alleged offences and therefore, there is no reason to interfere with the concurrent findings recorded by the courts below. In support of his submissions, learned counsel for respondents has referred to the decision of the Hon'ble Supreme Court of India in the case of G.NARASIMHAN & Others vs. T.V.CHOKKAPPA, (1972) AIR SC 2609 SHATRUGHNA PRASAD SINHA vs. RAJBHAU SURAJMAL RATHI & Others, (1997) CriLJ 212 ; S.KHUSHBOO vs. KANNIAMMAL & Another, (2010) AIR SC 3196 and another decision of this Court in the case of TARA AJAI SINGH vs. R.P.SHARMA, (2012) ILR(Kar) 5619 . 7. I have bestowed my careful consideration to the submissions made at the Bar and have carefully scrutinized the material placed on record. 8. In the light of the contentions canvassed by the parties, points that arise for consideration in these petitions are as follows: (1) Whether the complainant is an 'aggrieved party' within the meaning of section 199(1) of Cr.P.C.? (2) Whether the complaints allegations disclose the facts constituting the offence under sections 499/500 of IPC? (3) Whether the Courts below were justified in dismissing the complaints? 9. (2) Whether the complaints allegations disclose the facts constituting the offence under sections 499/500 of IPC? (3) Whether the Courts below were justified in dismissing the complaints? 9. At the outset, it is relevant to note that eventhough both the courts below have held that the publications in question did not refer to the complainant and the said publications were not defamatory in nature, yet it is unfortunate to note that neither the learned Magistrate nor the Revisional Court have referred to the offending publications. The relevant portion of the publication appended to the complaint in Criminal Petition No.4922/2016 reads as under:- "IMAG 1" The relevant portion of the offending publication in Criminal Petition No.4923/2016 reads as under:- "IMAG 2" The relevant portion of the offending publication in Criminal Petition No.4921/2016 reads as under:- "IMAG 3" 10. From a bare reading of the above publications, it could be deduced that the imputations therein refer to the police personnel attached to Sira Police Station. Undeniably, petitioner was the Inspector working in the said Police Station at the material time. Explanation 2 to Section 499 of IPC lays down that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Expounding this provision, Hon'ble Supreme Court in G.NARASIMHAN & Others vs. T.V.CHOKKAPPA, (1972) AIR SC 2609 has held as under:- " A defamatory imputation against a collection of persons thus falls within the definition of defamation. The language of the Explanation is wide, and therefore, besides a company or an association, any collection of persons would be covered by it. But such a collection of persons must be an identifiable body so that it is possible to say with definiteness that a group of particular persons, as distinguished from the rest of the community, was defamed." Referring to the legal position under common law, in the said decision, in para 14, it is further observed that, " In England also, criminal proceedings would lie in the case of libel against a class provided such a class is not indefinite, e.g., men of science, but a definite one, such as, the clergy of the diocese of Durham, the justices of the peace for the country of Middlesex, (See Kenny's Outlines of Criminal Law 19th ed. 235). 235). If a well-defined class is defamed, every person of that class can file a complaint even if the defamatory imputation in question does not mention him by name." (underlining supplied) This principle is affirmed in the above decision. 11. In the instant case, as already discussed above, a reading of the offending articles leave no manner of doubt that the imputations therein are made against an identifiable class of persons namely the police personnel working in Sira Police Station. That apart, the petitioner has been specifically named in one of the articles extracted above. Therefore, the finding recorded by the Courts below that the impugned publications did not relate to the petitioner and that the petitioner had no cause of action against the respondents cannot be accepted. Even if it is assumed that the petitioner was not named in the offending articles by direct reference, yet by innuendo the contents of these articles directly relate to the petitioner. There is no dispute that at the relevant time, petitioner was the Police Inspector working in Sira Police Station. In that view of the matter, the reasoning assigned by the courts below that the allegations made in the impugned publications are general in nature and did not relate to the petitioner being contrary to the documents on record, is liable to be interfered with. 12. The decision relied on by learned counsel for respondents reported in G.NARASIMHAN's case, referred supra, does not in any way advance the contention of the respondents. Even in the said case, the ratio laid down in SAHIB SINGH MEHRA's case, referred supra, is affirmed and it is held that if a well defined class is defamed, every person of that class can file a complaint even if defamatory imputation in question does not mention him by name. In the said case, complainant having failed to satisfy the court that the allegations made in the offending publications related to an identifiable class, the Hon'ble Supreme Court did not apply the above principle to the facts of the said case. But in the instant case, the factual matrix is entirely different. Therefore, this decision does not help the respondents to defend the impugned orders. 13. In the light of the above conclusion, the other contentions urged by learned counsel for respondents that the petitioner has no locus standi to maintain the complaints falls to the ground. But in the instant case, the factual matrix is entirely different. Therefore, this decision does not help the respondents to defend the impugned orders. 13. In the light of the above conclusion, the other contentions urged by learned counsel for respondents that the petitioner has no locus standi to maintain the complaints falls to the ground. No doubt section 199(1) of the Code lays down that a complaint under section 499/500 of IPC could be maintained only at the instance of an aggrieved person, yet, in the instant case, complainant has clearly made out that the alleged imputations were directed against an identifiable class of persons and he being the Inspector working in Sira Police Station at the relevant time, complainant answers the description of "aggrieved person" within the meaning of section 199(1) of Cr.P.C. As a result, this argument is also liable to be rejected. 14. Coming to the reason assigned by the revisional court to uphold the order of the Trial Court that the impugned imputations fall within the second exception is totally misplaced and contrary to the statutory provisions contained in Section 499 of IPC. Needless to say that at the time of taking cognizance, Trial Court is not entitled to take into consideration the likely defences of the accused. Whether the alleged publications are protected under any of the exceptions carved out under the statute cannot be gone into at the stage of taking cognizance. The defence set up by the accused is required to be pleaded and substantiated only during trial and cannot be a ground either to dismiss the complaint or to quash the proceedings if the allegations made in the complaint prima facie disclose the ingredients of the offences. This view has legal backing in the decision of the Hon'ble Supreme Court in the case of BALRAJ KHANNA, (1971) 3 SCC 399 , referred supra, wherein considering identical fact situation, the Hon'ble Supreme Court has laid down that "dismissal of a complaint at the stage of section 203 Cr.P.C. on the ground that the case is covered by exceptions to section 499 IPC as well as other defences that may be available to the accused will have to be gone into during trial of the complaint". In that view of the matter, even the reasoning assigned by the revisional court in the impugned judgment cannot be sustained. In that view of the matter, even the reasoning assigned by the revisional court in the impugned judgment cannot be sustained. As the assertions made in the complaints and the documents produced in support thereof prima facie disclose the facts constituting the ingredients of the offences under section 499/500 of IPC and there being clear material to show that these allegations relate to the petitioner, by virtue of Explanation 2 to section 499 of IPC, courts below were not justified in dismissing the complaints at the threshold. That apart, both the courts below have misdirected themselves in dismissing the complaints without considering the contents of the offending publications and their propensity to damage the reputation of the petitioner. The impugned orders are also rendered perverse on account of applying wrong proposition of law to the facts of the case resulting in failure of justice. For all the above reasons, the impugned orders cannot be sustained and are liable to be set aside. Accordingly, petitions are allowed. The judgment dated 15.10.2015 passed by the VI Addl. District and Sessions Judge, Tumkur, and the order dated 05.07.2012 passed by the learned Civil Judge and JMFC, Sira are set aside. The matter is remitted to the learned Magistrate to take cognizance of the alleged offences under sections 499, 500 and 501(b) of IPC and to proceed in the matter in accordance with law.