High Court of KeralaSingle JudgeCrl.M.C. disposed of on merits; the petition to...

Jainendra Kumar v. State of Kerala and Wilson Mullasseril

Case / Petition Number:CRL.MC NO. 2131 OF 2020

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Haripal
Judgment Date
2022-04-08
Court Decision / Holding
Crl.M.C. disposed of on merits; the petition to quash CC 1486/2019 is not granted. The four police complaints cannot amount to publication under Section 500 IPC. The case regarding imputations in W.P.(C.) No. 41528/2016 is a matter for merits in the appropriate proceeding, and the court has left that question open. The mediation attempt failed, and the court thus ends the Crl.M.C. without issuing any quashing order, while noting the ongoing disputes between the parties.
Final Disposition
Crl.M.C. disposed of on merits; the petition to quash CC 1486/2019 is not granted. The four police complaints cannot amount to publication under Section 500 IPC. The question regarding imputations in W.P.(C.) No. 41528/2016 is left for merits in the appropriate proceedings; no further action in the quashing petition itself.

Parties to the Case

Appellants / Petitioners

  • Jainendra Kumar, aged 63 years, S/O Krishnan Nair, residing at TC 17/1296-7, Sanjay Resorts, Vivekananda Nagar, Thirumala P.O., Thiruvananthapuram

Respondents

  • State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam-682 031
  • Wilson Mullasseril, S/o Gee Varghese Pappachan, TC 17/1296-8, Sanjay Resorts, Vivekananda Nagar, Thirumala P.O., Thiruvananthapuram-695 006

Legal Representation & Advocates

Counsels for Petitioners

  • • Adv. M. Sreekumar

Counsels for Respondents

  • • Sri. Hrithwik C.S., Senior Public Prosecutor
  • • Adv. Sri. D. Anil Kumar

Case Synopsis & Summary

Jainendra Kumar, a retired Lieutenant Colonel and currently the Chief Security Officer of Techno Park, Thiruvananthapuram, filed Crl.M.C. No. 2131 of 2020 seeking to quash CC 1486/2019 pending before the Additional Chief Judicial Magistrate, Thiruvananthapuram. The private complaint, instituted by the second respondent, accuses the petitioner of offences under Sections 499, 500 and 501 IPC on grounds that the petitioner’s conduct and statements have defamed the respondent and his family, arising from an ongoing enmity between neighbors in the Sanjay Resorts apartment complex. The dispute window includes a civil suit for restraining a telecom tower, challenges to a 2008 sale deed, and various writ and information litigation reflecting intense rivalries. The petitioner argues that the allegations are baseless, dragged from ego, and that simply seeking action cannot amount to defamation; the four instances cited in Annexure A are not imputations. The second respondent counters that the averments in the complaint and in a writ petition constitute publication and hence defamation, relying on authorities including Shybimon v. Haridas, David John v. Jose Moothedan, and P.M. Kathiresan v. Shanmugham to show publication and the applicability of the 8th exception to 499 IPC. The High Court ultimately held that the four police complaints do not amount to publication under 500 IPC and disposed of the Crl.M.C. while leaving open the question regarding imputations in W.P.(C.) No. 41528/2016 for merits, directing no further action in the quashing petition itself.

Provisions of Law Cited

Section 499 IPCSection 500 IPCSection 501 IPCSection 482 Cr.P.C.Section 483 Cr.P.C.

Legal Doctrines & Maxims

  • Publication as a prerequisite to defamation under IPC 500
  • An act of publication requires more than lodging a complaint; filing before police cannot be publication
  • 8th exception to Section 499 IPC (defamation) cannot constitute publication

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the allegations in the complaint under Section 500 IPC are baseless and that filing a complaint or narrating facts cannot amount to defamation. The four cited instances are mere complaints in the context of ongoing civil disputes, and not imputations capable of attracting Section 500 IPC. He argues that publication requires more than formal submissions to authorities and that narration of facts in writ petitions cannot be treated as imputations. The petitioner relies on David John v. Jose Moothedan (2020) to contend that mere complaints lack publication, and he urges that the court should examine the allegations in light of exceptions to Section 499 IPC.

Contentions of Respondents

The respondents submit that the averments in the complaint and in the writ petition amount to publication and constitute imputations defaming the second respondent; the court must assess whether the imputations fall within exceptions to Section 499 IPC. They rely on Shybimon v. Haridas to discuss the public nature of court filings, on David John v. Jose Moothedan to support publication through formal pleadings, and on P.M. Kathiresan v. Shanmugham to invoke the 8th exception to 499 IPC as a defense against publication.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Shybimon v. Haridas2010(2) KHC 607Mentioned OnlyCited by the respondent to discuss publication concepts; court does not rely on it as controlling authority for the decision in this specific case.
David John v. Jose Moothedan and Another2020 KHC 3112PositiveCourt explicitly relies on this decision to hold that filing a complaint before a police authority cannot amount to publication under IPC 500.
P.M. Kathiresan v. Shanmugham, Retd. Captain1995 Crl.LJ 2508PositiveCited to support the proposition that the 8th exception to Section 499 IPC cannot be treated as publication.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Jainendra Kumar v. State of Kerala and Wilson Mullasseril and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 8[TH] DAY OF APRIL 2022 / 18TH CHAITHRA, 1944** **CRL.MC NO. 2131 OF 2020** **CC 1486/2019 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT,** ## **THIRUVANANTHAPURAM** ## **PETITIONER:1ST ACCUSED:** **JAINENDRA KUMAR AGED 63 YEARS S/O KRISHNAN NAIR, RESIDING AT TC 17/1296-7, SANJAY RESORTS, VIVEKANANDA NAGAR, THIRUMALA P.O., POOJAPPURA, THIRUVANANTHAPURAM.** ## **BY ADV. M.SREEKUMAR** ## **RESPONDENTS: STATE & COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2 WILSON MULLASSERIL, S/O GEE VARGHESE PAPPACHAN, TC 17/1296-8, SANJAY RESORTS, VIVEKANANDA NAGAR, THIRUMALA P.O. THIRUVANANTHAPURAM-695 006.** **R1 BY SRI. HRITHWIK C.S., SENIOR PUBLIC PROSECUTOR R2 BY ADV SRI.D.ANIL KUMAR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31.03.2022, THE COURT ON 08.04.2022 PASSED THE FOLLOWING:** Crl.M.C.No.2131 OF 2020 2 ## **ORDER** This is a Criminal Miscellaneous Case filed by the petitioner seeking to quash entire proceedings in C.C. No. 1486/2019 pending before the Additional Chief Judicial Magistrate's Court, Thiruvananthapuram against the petitioner. That case was taken on file on a private complaint instituted by the second respondent against the petitioner as the sole accused alleging offence under Sections 499, 500 and 501 of the Indian Penal Code. Petitioner is a retired Lieutenant Colonel, retired from the Indian Army and presently, employed as the Chief Security Officer, Techno Park, Kazhakootam. The second respondent is a lawyer by profession. In fact, this is the standing testimony of an ugly ego clash between the petitioner and the second respondent who are neighbouring residents in an apartment by name ‘Sanjay Resorts’ at Thiruvananthapuram. 2. The facts of the case are like this:- Entire apartments in the said Sanjay Resorts originally belonged to the second respondent who had purchased eight cents of property in Crl.M.C.No.2131 OF 2020 3 Sasthamangalam Village and constructed a four storied building. He had sold the second floor of the building to one M.P. Varghese, who in turn sold the same to one K.G. Pillai and the petitioner and his wife purchased the apartment from the said K.G. Pillai under sale deed No. 794/2008 of Sasthamangalam Sub Registry along with 1/4[th] of two cents which devolved on all the owners of the apartments. The ground floor of the building is in the occupation of the second respondent. His wife is also a lawyer in Vanchiyoor Courts in Thiruvananthapuram. The first floor is in occupation of one Oommen Samuel, the second floor was purchased by the petitioner and his wife under the said sale deed and the third floor is also in the possession and enjoyment of the second respondent. Even though both of them are owners of the apartments in adjacent stories, numerous cases are pending between them and this is the standing testimony of the long standing enmity and spite between the parties. 3. According to the second respondent, he is a lawyer having 23 years of standing in Vanchiyoor courts in Thiruvananthapuram and enjoying high social status in the society Crl.M.C.No.2131 OF 2020 4 and among the members of the legal fraternity. While so, the second floor of the building was purchased by the petitioner/accused from K.G.Pillai in 2008 and since then his family is put up in the apartment. 4. The second respondent has cited numerous instances stating that the petitioner/accused is trying to defame and causing him mental injury and defamation to the entire family. The first instance is the institution of O.S. No. 299/2014 before the Additional Munsiff's Court– III, Thiruvananthapuram. That was a suit instituted by the petitioner, the said Oommen Samuel and others against the second respondent and M/s. Reliance Jio Infocom Ltd. According to him, they had instituted the suit for restraining the second respondent and others from putting up a telecom tower on the terrace of the four storied building. According to him, the Munsiff Court had refused to grant interim injunction and now the case is pending for framing issues. He has also cited various other reasons in which the accused/the petitioner is making conscious attempts to defame his family and trouble them. The other instance is execution of sale deed No. Crl.M.C.No.2131 OF 2020 5 794/2008 of Sasthamangalam Sub Registrar Office by playing fraud against the spirit of the restrictive covenants in the previous documents. According to him, such a document was created by making serious manipulations. Thus, he took up the matter and made complaints to the Deputy Inspector General of Registration Department (License) and on that basis the scribe licence of one P. Sankaran Nair who had scribed the sale deed was suspended. He also has narrated about five instances of frivolous complaints instituted against him by raising unnecessary imputations defaming him. The first is a complaint preferred by the accused on 07.03.2014, before the Sub Inspector, Poojappura. The copy of the complaint was attached. Similarly, on 27.04.2014 also a frivolous complaint was preferred before the Sub Inspector, Poojappura. On 25.04.2016 also a complaint was preferred by the accused before the Sub Inspector of police, Poojappura police station. He has quoted the complaint dated 25.04.2016 in Annexure A complaint preferred before the court. Similarly, on 20.12.2016, a fourth complaint was preferred by the accused before police with frivolous allegations. Everything was done Crl.M.C.No.2131 OF 2020 6 with the intention of harassing and vexing the second respondent for defaming and derogating him and to ridicule him in the minds of the right thinking people. Similarly, another instance is W.P. (C.) No. 41528/2016 filed by him before this Court challenging the appellate order passed by the Kerala State Information Commission against the accused. There the following averments have been made:- “The 4[th] respondent and his family who is residing in the 3[rd] floor of the said apartment complex had been creating nuisance to the petitioner and the other owners in the apartment complex. The eldest son of the 4[th] respondent had written indecent and vulgar language on the front wall of the petitioner's house, where in the petitioner is residing with his wife and only daughter. When the said unlawful and indecent acts of the 4[th] respondent family exceeded all limits petitioner was constrained to make written complaint before the Poojappura police station.” 6. According to the petitioner, these circumstances and imputations made by the petitioner/the accused were intended to defame the complainant and his family. Consequently, they had lost their social standing and goodwill in the society. He was called to the police station on numerous occasions and therefore, has preferred the said complaint before court. After examining the Crl.M.C.No.2131 OF 2020 7 complainant on oath, by Annexure C order dated 08.11.2019, the learned Additional Chief Judicial Magistrate, Thiruvananthapuram took cognizance of the case as C.C. No. 1486/2019 under Section 500 of the IPC and the proceedings are sought to be quashed by exercising inherent jurisdiction of this Court under Sections 482 and 483 of the Criminal Procedure Code. 7. According to the petitioner, the allegations in the complaint are baseless and were made to harass and vex the petitioner. He has stated numerous circumstances to say that there is long standing enmity between the petitioner and the second respondent. There are series of litigations pending between them; some of them were already disposed of by the respective courts. Parties have made allegations against each other in the said litigations, but in no stretch of imagination, it can be said that petitioner had made any allegation against the second respondent or his family members with intention to defame them. Not only that the petitioner is legally entitled to make allegations in a legal proceedings against the opposite party for protection of his own Crl.M.C.No.2131 OF 2020 8 interest, hence the petitioner has moved this Court for quashing the proceedings. 8. I heard the learned counsel for the petitioner, the learned Senior Public Prosecutor for the first respondent and the learned counsel for the second respondent. 9. According to the learned counsel for the petitioner, a complaint preferred to an authority seeking to take action cannot be taken as act intended to publish or to tarnish or defame the accused and therefore, such an act cannot attract offence under Section 500 of the IPC. According to the learned counsel, therefore, four instances mentioned in the complaint are not capable of attracting offence under Section 500 of the IPC. Regarding the statement of facts in W.P.(C.) No. 41528/2016, he said that they are only narration of facts for a litigation and no imputation has been made against the second respondent. He had never raised it as an imputation. In W.P.(C.) No. 41528/2016, he had moved this Court for quashing an appellate order passed by the Information Commissioner. This Court has already allowed that writ petition and therefore, now the allegation of the Crl.M.C.No.2131 OF 2020 9 petitioner that it has attracted offence punishable under Section 500 of the IPC cannot be upheld. He had never made any imputation. Narration of statements of facts cannot be taken as an imputation. According to him, averments in the writ petition will not amount to imputation and there is nothing defamatory in it. 10. On the other hand, the learned counsel for the second respondent submitted that it was not a mere case of question of raising allegations. The averments made in the writ petition and in the complaints preferred before the police amount to publication and therefore, it is for the petitioner to make it out that his allegations or the complaint or the imputations made there, fall within any of the exceptions provided in Section 499 of the IPC. In this connection, the learned counsel also relied on the decision reported in **Shybimon v. Haridas [2010(2) KHC 607]** . 11. In reply, the learned counsel for the petitioner reiterated that there is absolutely nothing defamatory either in the complaints or in the writ petition and a complaint preferred Crl.M.C.No.2131 OF 2020 10 before an authority cannot be reckoned as a publication. In this connection, he relied on the decision reported in **David John v. Jose Moothedan and Another [2020 KHC 3112]** . According to him, some stray statements or casual observations made in the complaint or in the written statements cannot be reckoned as imputations. Only if it is actually published, it would amount to imputation. 12. As noticed earlier, petitioner and the second respondent are adjacent apartment dwellers in a four storied building, entire portion of which once belonged to the second respondent. He had put up the structure in eight cents of land in Sasthamangalam Village; the ground floor and the third floor are still in his possession. He had sold the first and second floors to strangers. The second floor was initially sold to one M.P. Varghese from whom one K.G. Pillai purchased it and the petitioner and his wife are the subsequent assignees from the said K.G. Pillai under Annexure D sale deed. 13. The averments in Annexure A complaint and statements of facts in the Crl.M.C. would reveal that even though Crl.M.C.No.2131 OF 2020 11 parties are residents in the neighbouring apartments, no love is lost between them and all are the result of an ugly ego clash between the two. There are numerous cases pending between the parties in different courts. Annexure A complaint indicates that the petitioner had preferred numerous complaints against the second respondent before police. But police had not taken any action thereon, may be because of the hollowness of the allegations or that some of the allegations are rather silly and childish and at the most amount to only discourteous behaviour which do not warrant serious attention or consideration. The records produced by the parties indicate that initially a suit as O.S. No. 299/2014 was instituted by the petitioner and one Oommen Samuel, who occupies the first floor, against the second respondent and another which is evident from Annexures E and F in the Crl.M.C. There are reasons to think that the second respondent did not relish the petitioner purchasing the second floor and occupying the same. Whatever it may be, it has come out that the second respondent had erected a telecom tower on the terrace portion of the building, which is supposed to be Crl.M.C.No.2131 OF 2020 12 the common area, without obtaining permit from the Corporation against which the petitioner and the said Oommen Samuel instituted the suit for injunction against the second respondent and M/s. Reliance Jio Infocom Ltd. seeking to restrain them under a decree of injunction. Initially, the Munsiff who heard the interlocutory application dismissed the application for interim injunction against which the said Oommen Samuel, the petitioner and his wife preferred C.M.A. No. 42/2014 and by Annexure E order dated 30.09.2016, the order of the Munsiff was reversed and they were granted interim injunction. Now the petitioner says that, that suit stands decreed against the 2[nd] respondent and Reliance Jio Infocom Ltd. 14. The second dispute is O.S. No. 779/2017 filed by the second respondent against the petitioner and his wife. As indicated earlier, the second respondent had a case that sale deed No. 794/2008 was executed by fraudulent means etc., and they preferred a suit for cancelling the sale deed which is evident from Annexure G suit for setting aside the document. Annexure H is an interim order passed by the Additional Munsiff – III, Crl.M.C.No.2131 OF 2020 13 Thiruvananthapuram restraining the defendants i.e., the petitioner and his wife from creating any document in respect of the same. In the same suit, i.e., O.S. No. 779/2017, the defendants filed I.A.No. 8228/2017 against the plaintiffs and obtained an order in their favour. The fact appears to be that the second respondent had put up an additional water tank at the common area on the ground floor of the building. As water scarcity was felt by the petitioner as well, he also wanted to put up an additional water tank which was resisted by the second respondent against which the said I.A. was filed and Annexure I order was obtained in his favour. Thereafter, as a fall-out, Annexure J complaint was preferred by the second respondent against the petitioner and others alleging various offences which was forwarded to the police and by Annexure K FIR, a case has been registered as Crime No. 883/2018 of Poojappura police station alleging offences under Sections 120B, 441 445, 503, 504 read with 34 of the IPC against the petitioner and others. 15. The fourth instance is filing of W.P.(C.) No. 2650/2019 by the petitioner against the second respondent and Crl.M.C.No.2131 OF 2020 14 his men. In the said writ petition, it is inferable that the second respondent had leased out the first floor of the building for commercial purposes and the tenants started commercial activities in the tenanted premises without obtaining license from the Corporation. Even though the petitioner had preferred complaint before the Corporation, they took no action against which W.P. (C.) No. 2650/2019 was filed and the writ petition is pending. 16. As hinted earlier, the second respondent has a case that the sale deed was obtained by the petitioner through fraudulent means violating the covenants in the previous documents so that he had preferred complaint before the Deputy Inspector General of Registration seeking to quash it and also got suspended the licence of the scribe who prepared the document. Annexure L indicates that even though the Deputy Inspector General of Registration had taken a view against the sale deed, on re-assessment of the matter, the Inspector General of Registration found that there is no substance in the said finding and found that the sale deed is a properly registered one and thus Crl.M.C.No.2131 OF 2020 15 he ruled that the allegations touching the execution of sale deed No. 794/2008 are baseless. 17. It has come out that against the said finding in Annexure L, the 2[nd] respondent preferred a complaint before the Special Court, Vigilance, Thiruvananthapuram with Crl.M.P. No. 30/2016 and got initiated a quick verification against the petitioner, the Inspector General of Registration etc. Ultimately, by Annexure M, the Vigilance Court found that there is absolutely nothing to proceed with the preliminary enquiry. After getting report on the preliminary enquiry, the complaint of the second respondent was closed by the Vigilance Court. 18. It has also come out that the second respondent had sought some personal pieces of information from the employer of the petitioner which were not furnished, against which an appeal was preferred before the Information Commissioner who allowed the appeal. Challenging the correctness of the order of the Information Commissioner, the petitioner preferred W.P.(C.) No. 41528/2016 before this Court and by Annexure O judgment dated 17.02.2017, the writ petition was allowed by this Court, Crl.M.C.No.2131 OF 2020 16 quashing the proceedings of the State Information Commissioner and remitting the matter for further hearing of the appeal. 19. A narration of the sequences of events and the cases filed by the parties each other, no doubt, would indicate that there are numerous litigation continuing between the parties. They are inimically disposed, in spite of the fact that the parties are residing in adjacent floors of the same apartment. The petitioner resides with his family in the second floor, whereas ground floor and the 3[rd] floor are occupied by the second respondent and his family. 20. After elaborately hearing the parties, finding the hollowness of the allegations made against each other, this court thought that by an effective mediation, if the parties are made to sit around a table and talk over, they may be able to reconcile; thus the court had suggested a mediated settlement. Both the learned counsel were convinced and they agreed for an attempt to settle the disputes through mediation and thus, the matter was referred to the Mediation Centre, Thiruvananthapuram, but the outcome was disappointing. The learned Mediator reported that Crl.M.C.No.2131 OF 2020 17 the dispute is not settled and thus the matter came back. In the circumstances, the Crl.M.C. has to be disposed of on merits. 21. I have narrated the sequences of events and long line of litigations pending between the parties. Both the parties are supposedly maintaining status in the society. While the petitioner is a former Lieutenant Colonel now employed as Chief Security Officer in Techno Park, Thiruvananthapuram, the second respondent and his wife are lawyers in Thiruvananthapuram. But I must say that both of them are not rising to the occasion, but stooping too low and fighting each other and are indulging in unscrupulous litigations which would only swell the number of cases pending before both civil and criminal courts. As noticed earlier, the second respondent has gone to the extent of challenging a sale deed obtained by the petitioner from a third person, who is a subsequent assignee of the second respondent himself, still on the ground that some other covenant happened to be incorporated in the sale deed, he wanted to set aside the same. Since the matter is pending before the Civil Court, I do not want to express any opinion about it. He also approached the Deputy Crl.M.C.No.2131 OF 2020 18 Inspector General of Registration calling for the cancellation of the scribe licence of the person who drafted that document; when the matter went before the Inspector General of Registration, the Inspector General took a stand in favour of the petitioner, then second respondent took up the issue before the Vigilance Court and caused a quick verification conducted. After getting quick verification report, the Vigilance Court found that there is no substance in the allegations against the petitioner and the Inspector General of Registration and thus the matter was closed. 22. There are also materials to say that the petitioner had preferred numerous complaints against the second respondent before the Sub Inspector of Poojappura police station. Annexure A complaint would demonstrate how silly are the allegations in the complaint. In one case, it is stated that the younger son of the second respondent had spat in front of the door of his house. When it was brought to the notice of his elder brother, he had ridiculed the petitioner. Similarly, when the matter was related to the second respondent, he also asked him to go and institute a case against him. But it requires to be stated that the petitioner is Crl.M.C.No.2131 OF 2020 19 not an eye witness of the alleged spitting. Whatever it may be, in another instance, it is stated that somebody had inscribed the words 'sexy' near the front door of his house with a pencil. According to him, it was intended to ridicule the women members of his family, so he preferred a complaint. Another complaint is regarding the putting up of a flex board in a tree inside the compound. Thus, numerous complaints have been preferred by the petitioner himself against the second respondent. But the petitioner does not deny the making of these complaints. According to him, matters stated therein are not imputations but only statements of fact which are not sufficient to attract offence under Section 500 of the IPC. According to him, those were not intended to defame or derogate the second respondent and therefore, he is not liable to be prosecuted. 23. As stated earlier, generally speaking, two circumstances have been stated by the 2[nd] respondent in the Annexure A complaint for attracting offence under Section 500 of the IPC. The first one is preferring of four complaints before the police and the second is the alleged imputations made by the Crl.M.C.No.2131 OF 2020 20 petitioner in W.P.(C) No.41528/2016 before this Court. 24. After considering entire circumstances and materials, I have no doubt in mind that these litigations are part of a dirty game arose out of ego clash between the parties who supposedly are maintaining high status in the society. I have no doubt that a former Colonel and a lawyer have standing in the Society. But by their own conduct they have proved that they are not worthy to claim any status. While the petitioner used to prefer complaints before police on silly matters, the second respondent is more determined to fix the petitioner one way or the other. The extent of the enemity of the 2[nd] respondent is evident from various proceedings initiated by him. Whatever it may be, the complaints preferred by the petitioner before the Sub Inspector of police, Poojappura police station cannot be a reason for invoking Section 500 of the IPC. As rightly pointed out by the learned counsel for the petitioner, it is peremptory that in order to attract offence under Section 500 of the IPC, it requires to be proved that the alleged imputation was published by the accused. But preferring a complaint before an authority, requesting to take Crl.M.C.No.2131 OF 2020 21 action cannot be described as an act of publication. The learned counsel has rightly relied on the decision in **David John** , quoted supra, in which this Court has held that it is not a publication unlike in the case of an averment made or an affidavit filed before a court of law which is likely to be seen by the court staff before the matter is placed before the Judge concerned; in **Shybimon** , quoted supra, it was pointed out that an affidavit is not a secret document; it forms part of court records and is available to and accessible to the public. Once a document is filed in a court of law, such a statement can be taken as published. Unlike in the case of an affidavit, filing a complaint before police cannot be stated as an act of publication. Here, four complaints dated 07.03.2014, 27.04.2014, 25.04.2016 and 20.12.2016, made mention in Annexure-A complaint, were addressed to the Sub Inspector of police for initiating action against the 2[nd] respondent. It may be true that the 2[nd] respondent might have been called by the Sub Inspector with the intention of taking action. But it does not amount to publication. The Sub Inspector alone might have read it. Even if it was read by some Crl.M.C.No.2131 OF 2020 22 other personnel in the police station, that cannot amount to publication and I am in respectful agreement with the learned Single Judge of this Court in **David John** , quoted above. I have also come across the decision of a learned Single Judge of the Madras High Court in **P.M. Kathiresan v. Shanmugham, Retd. Captain [1995 Crl.LJ 2508]** where the subject matter was a complaint preferred by the complainant before the Superintendent of Police. Referring to the stand taken by the accused, the Court held that such a complaint falls within the 8[th] exception of Section 499 of the IPC which cannot be an act of publication and therefore, offence under Section 500 of the IPC is not attracted. In other words, the four complaints made mention in the Annexure-I complaint cannot form the subject matter for attracting offence under Section 500 of the IPC. 25. All the same, as adverted to earlier, such a stand cannot be taken with regard to the averments made in W.P.(C) No.41528/2016. I have already quoted the paragraph containing the imputations allegedly made against the petitioner. This Court is unable to form an opinion while considering a petition filed Crl.M.C.No.2131 OF 2020 23 under Section 482 of the Cr.P.C. whether that would amount to imputations attracting offence under Section 500 of the IPC. It is for the petitioner to say that those are narrations of facts, that statements were made in good faith and therefore, it cannot attract offence under Section 500 of the IPC or the matter falls in any of the exceptions contained in Section 499 of the IPC. It is a matter for the Court to weigh and consider the same. In spite of the fact that the parties are inimically disposed, it is for the Court to decide whether the said statements made in W.P.(C.) No. 41528/2016 amount to imputations made against the 2[nd] respondent so as to defame him. Therefore, in order to consider that question the trial court will have to dispose of the case on merits. Leaving open such a question, the Crl.M.C. is disposed of. Sd/- **K.HARIPAL** **JUDGE** **DCS/Okb/04.04.2022** Crl.M.C.No.2131 OF 2020 24 ## **APPENDIX** ## **PETITIONER'S ANNEXURE** |**ANNEXURE A**|**CERTIFIED COPY OF THE COMPLAINT DATED**| |---|---| ||**20.4.2017 FILED BY THE 2ND RESPONDENT**| ||**BEFORE THE ADDITIONAL CHIEF JUDICIAL**| ||**MAGISTRATE COURT, THIRUVANANTHAPURAM**| |**ANNEXURE B**|**TRUE COPY OF THE SWORN STATEMENT OF 2ND**| ||**RESPONDENT DATED 19.8.2017 IN CMP NO**| ||**1906/17**| |**ANNEXURE C**|**CERTIFIED COPY OF THE ORDER IN CRL.MP NO**| ||**1906/17 DATED 8.11.2019 OF THE ADDITIONAL**| ||**CHIEF JUDICIAL MAGISTRATE COURT, TVM**| |**ANNEXURE D**|**TRUE COPY OF SALE DEED BEARING NO 794/08 OF**| ||**SUB REGISTRY OFFICE, SASTHAMANGALAM DATED**| ||**4.3.08**| |**ANNEXURE E**|**TRUE COPY OF ORDER DATED 30.9.2016 IN CMA**| ||**42/14 OF ADDITIONAL DISTRICT AND SESSIONS**| ||**COURT-V, THIRUVANANTHAPURAM**| |**ANNEXURE F**|**TRUE COPY OF THE JUDGMENT IN OS NO 299/2014**| ||**DATED 15.9.2018 OF ADDITIONAL MUNSIFF**| ||**COURT-111, TVM**| |**ANNEXURE G**|**TRUE COPY OF THE PLAINT IN OS NO 779/2017**| ||**FILED BY 2ND RESPONDENT DATED 22.5.2017**| ||**WITHOUT EXHIBITS**| |**ANNEXURE G**|**TRUE COPY OF THE PLAINT IN OS NO 779/2017**| ||**FILED BY 2ND RESPONDENT DATED 22.5.2017**| ||**WITHOUT EXHIBITS**| |**ANNEXURE H**|**TRUE COPY OF THE ORDER IN IA NO 3029/17 IN**| ||**OS NO 779/17 DATED 5.6.2017 OF THE MUNSIFFS**| ||**COURT-111 TVM**| |**ANNEXURE I**|**TRUE COPY OF ORDER OF IIND ADDITIONAL**| ||**MUNSIFF COURT, THIRUVANANTHAPURAM IN IA**| ||**8228/17 IN OS NO 779/2017 DATED 3.2.2018**| Crl.M.C.No.2131 OF 2020 25 |**ANNEXURE J**|**TRUE COPY OF THE COMPLAINT CMP NO 2132/2018**| |---|---| ||**DATED 25.4.2018 FILED BY THE 2ND RESPONDENT**| ||**BEFORE ADDITIONAL CHIEF JUDICIAL MAGISTRATE**| ||**COURT, THIRUVANANTHAPURAM**| |**ANNEXURE K**|**TRUE COPY OF THE FIR IN CRIME NO 883/18 OF**| ||**POOJAPPURA POLICE STATION DATED 5.5.2018**| |**ANNEXURE L**|**TRUE COPY OF ORDER DATED 21.6.2019 NO.**| ||**GRC(3) 4833/14 OF THE INSPECTOR GENERAL OF**| ||**REGISTRATION, TVM**| |**ANNEXURE M**|**TRUE COPY OF ORDER IN CRL.MP NO 30/2016**| ||**DATED 4.3.2017 OF THE ENQUIRY COMMISSIONER**| ||**AND SPECIAL JUDGE, THIRUVANANTHAPURAM**| |**ANNEXURE N**|**TRUE COPY OF WRIT PETITION NO 41528/2016**| ||**FILED BY PETITIONER BEFORE THIS HON'BLE**| ||**COURT DATED 29.12.2016 WITHOUT EXHIBITS**| |**ANNEXURE O**|**TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT**| ||**IN WPC NO 41528/2016 DATED 17.2.2017**| |**ANNEXURE P**|**TRUE COPY OF LETTER NO 21/RTIACT/B2-14**| ||**DATED NIL FROM THE SUB INSPECTOR OF POLICE,**| ||**POOJAPPURA POLICE STATION**| |**ANNEXURE Q**|**TRUE COPY OF LETTER NO 30/RTI/17/PJP DATED**| ||**13.12.2017 FROM THE SUB INSPECTOR OF**| ||**POLICE, POOJAPPURA POLICE STATION**|