K.G. Vidyasagar & K.G. Swathikan v. P.V. JaladharAn & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **MONDAY, THE 5TH DAY OF AUGUST 2013/14TH SRAVANA, 1935** ## **Crl.MC.No. 1027 of 2010** ## **----------------------------** **AGAINST THE ORDER/JUDGMENT IN CC NO.1149/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT II, CHERTHALA** **.....** ## **PETITIONER(S):ACCUSED:** **---------------------------------------** ## **1. K.G.VIDYASAGAR,S/O.GOVINDAN, KALARIKKAL VELI, MANNANCHERY PO, ALAPPUZHA DISTRICT.** **2. K.G.SWATHIKAN,S/O.GOVINDAN, RAJITHA BHAVAN, MANNANCHERY PO, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.DEEPU THANKAN SMT.G.RANJITA** ## **RESPONDENTS/COMPLAINANT AND STATE:** **---------------------------------------------------------------------** **1. P.V.JALADHARAN,S/O.VELU,JISHA BHAVAN, MANNANCHERY PO, PIN 686 538, ALAPPUZHA DISTRICT.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.K.RAMANATHAN R2 BY SENIOR PUBLIC PROSECUTOR SRI.P.P.PADMALAYAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/07/2013 , THE COURT ON 05/08/2013 PASSED THE FOLLOWING:** **Kss** ## **Crl.M.C.No.1027/2010** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** - **ANNEX.A: COPY OF THE EXTRACT FOR THE BPL LIST PUBLISHED BY THE ARYANAD BLOCK PANCHAYATH.** - **ANNEX.B: COPY OF THE GOVT. ORDER NO.24333/D.D.3/08/LOCAL SELF GOVT. DTD. 8/04/2008.** - **ANNEX.C: COPY OF THE COMPLAINTS SUBMITTED BY THE PETITIONER TO THE DISTRICT COLLECTOR, ALAPPUZHA 15/11/2008.** - **ANNEX.D: COPY OF THE FORM IN WHICH THE OBJECTIONS WERE CONSIDERED AND MARKS WERE AWARDED BY THE VILLAGE EXTENSION OFFICER.** - **ANNEX.E: COPY OF THE COMPLAINT IN C.C.NO.1149/2009 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT II, CHERTHALA.** ## **RESPONDENT'S ANNEXURES:** ## **N I L** ## **/TRUE COPY/** ## **P.S.TO JUDGE** **Kss** ## **K.RAMAKRISHNAN, JJ.** -------------------------------------------------------Criminal MC No.1027 of 2010 -------------------------------------------------------Dated this, the 5[th] day of August 2013 ## Order Accused Nos.1 and 2 in CC No.1149/2009 on the file of the Judicial First Class Magistrate Court-II, Cherthala, have filed this application to quash the proceedings initiated on the basis of a private complaint field by the first respondent herein, under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that the complaint is filed without any bona fies. They have not committed any offence. The petitioners are brothers and social workers in their locality. The Government of Keala has a measure to give benefits to the low income people and to categorise those persons, the Government used to prepare a list of persons, who are living below the poverty line (BPL) and persons who are included in the BPL are provided with number of benefits as a measure for their upliftment and to Crl.MC No.1027/2010 2 promote their standard of life. The BPL list was prepared in the year 2007 and the same was published by Aryanad Block Panchayat in respect of persons living in Ward No.19 of Mannancherry Grama Panchayat. The petitioners are residing in that panchayat. Annexure A is the BPL List so published by Arayanad Block Panchayat and the first respondent is shown as Serial No.86 in the list. There were lot of complaints against the preparation of the list to the effect that number of ineligible persons were included in the list and persons eligible were excluded from the list. The Government of Kerala issued a circular on 8.4.2008 directing all the Panchayats to publish the list again and call for objections if any in respect of the anomalies in the list and after conducting proper enquiry, prepare a fresh list on the basis of the enquiry. The first petitioner, being a social worker, filed objection regarding the same and the copy of the said complaint filed by him is Annexure C. On the basis of Annexure C, the Village Extension Officer, Aryanad Block Crl.MC No.1027/2010 3 Panchayat conducted an enquiry and a note was prepared by the Village Extension Officer as Annexure D. The fist respondent has got only 25 marks and that makes clear that he is not eligible to be included in the list. Subsequent to the same, the first respondent filed Annexure E complaint before the Judicial First Class Magistrate Court-II, Cherthala, alleging that the petitioners have committed the offences punishable under Sections 499 and 500 read with Section 34 of the Indian Penal Code. The Court below has taken cognizance of the case as CC No.1149/2009 and issued summons to the petitioners. The allegations in the complaint are not sufficient to attract the offences under Section 499 of the Indian Penal Code. Further, the allegations made in the complaint filed by the petitioners before the authorities are true to the best of their knowledge and there was no mala fide intention in filing the complaint as alleged in the complaint and they have only filed the complaint pursuant a circular issued by the Government in Crl.MC No.1027/2010 4 this regard. The present complaint was filed by the first respondent with a view to harass th petitioners and it is an abuse of the process of Court and there is no possibility of any conviction being entered into against the petitioners on the basis of the allegations in the complaint. They prayed for interference by this Court to quash the proceedings under Section 482 of the Code of Criminal Procedure. Hence th petition. 3. Heard the learned counsel for the petitioners and learned counsel for the first respondent and the learned Government Pleader. 4. The counsel for the petitioner submitted that in order to attract the offence under Section 500 of the Indian Penal Code, it must be alleged in the complaint that the defamatory statement alleged to have been made by the petitioners. That was not done in this case. Further, they have only filed objections to the BPL list earlier published on the basis of the circular issued by the Government in this Crl.MC No.1027/2010 5 regard when there were lot of complaints raised regarding the inclusion of persons not eligible for the same and exclusion of persons who are eligible for the same. So, they have done in good faith and so, it is not an offence. Even the allegations in the complaint filed by them cannot be said to be defamatory as they have only narrated the facts within their knowledge. So, according to him, the complaint itself is not maintainable and it is liable to be quashed. 5. On the other had, the learned counsel for the first respondent submitted that necessary allegations have been made in the complaint to attract the offence under Section 499 read with Section 500 of the Indian Penal Code and other things are matters for evidence. He had also submitted a witness list showing the concerned officer to produce the original objections filed by the petitioners. Further, he had stated in the complaint that the allegations mentioned in the objection are false to the knowledge of the petitioners and they were made with an intention to defame Crl.MC No.1027/2010 6 the first respondent before the public as he is having good reputation among the public. So, it is a matter to be decided on evidence and it is not a fit case to invoke Section 482 of the Code of Criminal Procedure to quash the proceedings. 6. The learned Public Prosecutor also supported the submissions made by the counsel for the first respondent 7. It is an admitted fact that the first respondent had preferred Annexure E complaint, alleging that the petitioners herein have made a complaint against him and others showing false allegations with an intention to defame him without any bona fides. It is also an admitted fact that after taking the sworn statement of the witnesses, including the complainant, the learned Magistrate had taken cognizance of the case under Section 499 read with Section 500 of the Indian Penal Code and process was ordered to the accused who are the petitioners herein. It is against that that the present petition has been filed to Crl.MC No.1027/2010 7 quash the proceedings. 8. In order to attract the offence under Section 499 of the Indian Penal Code, it must be alleged in the complaint that the allegations containing defamatory statement were made by the accused persons with a mala fide intention to defame the complainant in the eye of the public. It is also a settled law that even if the allegations were made in a petition or complaint filed before the authorities, then also, it will amount to defamation if the allegations made in the complaint were made with an intention to defame the person intended in that complaint and to their knowledge, it was false. Whether it was done in good faith, justified by truth or in public interest etc., are defences available to the accused in that case. 9. It is true, in the decision reported in **Rekha v.** **Vinodan.T.S.** (2009 (3) KHC 477), it has been held that there should be an allegation in the complaint that the words spoken or published were made with an intention to Crl.MC No.1027/2010 8 harm or knowing or having reason to believe that such imputation will harm the reputation of the person. 10. In the absence of such allegations, the proceedings initiate for the offence under Section 499 of the Indian Penal Code are to be quashed. In the decision reported in **Madhavi Amma v. Sherief** (1985 KLT 330), it has been held that it is not necessary to prove that the complainant directly or indirectly suffered from a scandalous imputations. Proof of intention, knowledge or reasonable belief on the part of th accused regarding the possible harm to reputation is sufficient. Whether harm was actually caused or not is immaterial. Even the intention to cause harm to the reputation is not a necessary factor to be proved. It is enough, if it is shown that the accused had reason to believe that the imputations are likely to harm the reputation. In the same decision, it has been held that absence of incorporation of the defamatory imputations in first person or at least a substantial account of the same in Crl.MC No.1027/2010 9 the complaint if fatal to the prosecution. But, in the same decision, it has been held that the object is to enable the accused to understand and answer the allegations against him. Even in cases of impossibility of reproduction in first person, law insists on a substantial account of the accusations being included in the complaint. Otherwise, the complaint is considered defective. 11. In the decision reported in **Balraj Khanna v. Moti Ram** (1971(3) SCC 399), it has been held that it is highly desirable no doubt if the actual words stated to have been used by an accused and which are alleged to be defamatory are reproduced by the complainant. The actual words used or the statements made may be reproduced verbatim by the complainant if the words are few and the statement is very brief. But, in cases where words spoken are too many or the statements made are long, it will be the height of technicality to insist that the actual words and the entire statements should be reproduced verbatim. A Crl.MC No.1027/2010 10 complaint cannot be thrown out on the mere ground that the actual words spoken or the statement made have not been stated in the complaint. From the point of view of accused also, it is necessary that the matter alleged to be defamatory int eh complaint must be so stated as to enable them to know the nature of the allegations that they have to meet. So, it is clear from the above dictum that if the words spoken or published are small matters, then, it is desirable that the same has to be reproduced in the complaint in first person. Further, it is also clear from the above dictum that if the allegations made or published are lengthy, then, insisting the complainant to produce the same in the complaint is not warranted. But, at least the subtractum of the defamatory statement alleged to have been made by the accused must be mentioned in the complaint so as to make the accused understand the accusations made against him so as to enable him to meet the case. Crl.MC No.1027/2010 11 ## 12. In the present complaint, it is specifically ## mentioned thus : ''അ(പക�രമ�ര�ക� കപ�ത�ജനങള�ല എന���� മറ�മ�ള സത�ക�ര��യ���� സത��പര�ന�� മനപ�ര�� കളങ� ച�ര�ണകമന�ള ഉ�%ശ���ട �� കര �ത�(�ട�� ക�ട� (പത�കള�കട (പവ*�� മ�(� അ(പക�ര� സ�ഭവ���കമന�ള ഉ�മവ�ശ,�സ���ട�ക�ട�യ�� (പത�കള ഇര �വര�� മനപ�ര�� ക�ട�യ��(�ച�ച� ഉറച� ത�ങള �കട കപ�ത � ഉ�%ശക�ര1സ�ധ1��ന�യ� മണ�4ര� പ4�യ�� 19-)0 വ�ര:�ല ക ��നല കവള� വ�ട�ല ഖദ�ജയ�കടയ�� കളര��ല വ�ട�ല മ�ധവ�യ�കടയ�� കളര��ല വ�ട�ല �ശഖരക>യ�� വ�ഴപന�ട� വ�ട�ല അന�ലക�മ�റ�ക>യ�� മറ�� �പര �കള അനരAമ�യ സ,�ധ�ന��ക> അട�സ�ന��ല കടന �ക�ട�യ�ട�ളത�കണന�� മറ�� ക�ണ�ച�കക�ണ� (പത�കള �ചരന� ബA �മ�നകപട ജ�(�(� കളകര അവരകള� �� ആര1�ട� ബ��ള��� ക:വ(പ�കമ>� ഓഫ�സര� �� രണ�� (പത� ഒന�� (പത�യ�കട അറ��വ�ട�� സമത���ട�ക�ട�യ�� തക> Crl.MC No.1027/2010 12 കകപടയ�ല കളവ �� കളവ�യ ക�ര1ങള ആകണന� (പത�കള�� അറ�യ�വ�നത�മ�യ ക�ര1ങള എഴ�ത��ചര�� വ1�ജമ�യ� പര�ത� തയ�റ��� എകനയ�� മറ�� കപ�ത�ജനമധ1��ല അപക�ര��കപട��ണകമന�ള ഉ�%ശ���ട��ക�ട�പര�ത��ബ�ധ�പ�ച�ട�ളത��. ................ ................................................................................... അ�ന,ഷണ��ക> ഫ(മ�യ� (പത�കള ഇര�വര�� �ചരന� എന���� മറ�� എത�കര കളവ�യ ക�ര1ങള ക�ണ�ച� തയ�റ���യ പര�ത�യ�ക( ക�ര1ങള മനസ�(���ന ഇടയ�യ കപ�ത�ജനങള�കട ഇടയ�( �� എന���� മറ�� ഉണ�യ�ര�ന സത��പര�ന�� സത�ക�ര����� �ക�ട� തട�നത�ന��ഇടയ�യ�ട�നത�മ�ണ�. ................................ ................................................................................... കളവ�യ ക�ര1ങള ആകണന�ള ഉ�മവ�ശ,�സ���ട�� അറ��വ�ട�� ക�ട� ആയവ ബനകപട അധ�ക�ര�കകള (പത�കള ഇര�വര�� �ചരന� വ1�ജമ�യ� പര�ത� തയ�റ��� അറ�യ�ചത� വഴ�............................................................ (പത�കള ഇര�വര�� �ചരന� എകനയ �� മറ �� കപ�ത�ജനങള�കട ഇടയ�ല (പ�ത1ക�ച� അയല Crl.MC No.1027/2010 13 വ�സ�കള�കട ഇടയ�ല എന���� മറ�� ഉണ�യ�ര�ന സത��പര�ന�� സത�ക�ര��� �� �ക�ട� തട�നത�ന�� എന���� മറ�� മ�നA�ന� ഉണ�ക�നത�ന� �വണ�യ�� മനപ�ര�� ക�ട�യ��(�ച�ച� ഉറച� എന�� �� മറ �� ഇ(�(�� ജ�വ�ത സ�Aചര1ങള ഉകണന �ക�ണ�ച� കക�ണ� കളവ�യ ക�ര1ങള എഴ�ത��ചര�� '' 13. So, it is clear from the above that the complainant had categorically stated that the contents of the allegations made by the accused persons in the complaint filed by them before the authorities are false to the knowledge of the accused persons and they have shown certain facts which are not really in existence with a view to show that the complainant had shown false things with a view to get himself included in the BPL list and that was done with an intention to defame him before the public. Whether he has been defamed on account of the same or not, is not a matter to be considered at this stage. What is required to be considered is whether the allegations are Crl.MC No.1027/2010 14 sufficient to maintain an action for defamation. Further, it is seen from the lower court records that along with the complaint, he had produced a copy of the objection filed by the first accused before the authorities which will form part of the complaint. So, even if the allegations are not reproduced, if it is alleged in the complaint that what is stated in the objections filed by the accused are false and they were known to be false to the accused persons, but made with an intention to defame the complainant or the accused persons have reason to believe that it is likely to affect his reputation among the public along with the production of that petition filed by him, will be sufficient as it fulfills the requirements substantively. 14. Further, the petition was filed by the accused before the authorities and it cannot be said that they were not aware of the contents of the complaint filed by them. Under such circumstances, the complainant has only to state in the complaint that the allegations made in the Crl.MC No.1027/2010 15 complaint filed by the accused are false and they were known to be false to the persons who made the same, but it was made with an intention to defame him is sufficient, for the purpose of considering as to whether the complaint has to be taken o file or not. All other matters are to be proved by the complainant by adducing evidence. Further, the fact that the complaints were filed by the accused pursuant to a circular issued by the Government and it was done in good faith and they are justified by truth etc., are defences available to the accused and they have to be proved by adducing evidence. This was so held in the decision reported in **Rumugam v. Kittu** (2009(1) KLT Suppl.841 (SC). In the decision reported in **Arun Bhandari v. State of U.P** (2013(1) Supreme 131), it has been held that in a case where there are prima facie materials available for proceeding with a complaint and other matters are to be decided on the basis of evidence, then, it is not a fit case to quash the proceedings at the threshold, invoking the power Crl.MC No.1027/2010 16 under Section 482 of the Cr.PC. So, under such circumstances and in view of the discussions made above, I feel that it is not a fit case to invoke Section 482 of the Code of Criminal Procedure to quash the proceedings at the threshold as the documents produced along with the complaint are sufficient to issue process against the accused and it cannot be said that no offence under Section 499 of the Indian Penal Code is attracted at this stage and all other matters agitated by the petitioners before this Court are matters to be considered on the basis of evidence. So, the petitioners are not entitled to the reliefs claimed by them in this petition and the same is liable to be dismissed. In the result, the petition is dismissed. It is made clear that this will not affect the right of the petitioner to agitate all contentions raised by them before the court and the concerned court considering the same on merits and dispose of the same in accordance with law untrammelled by the observations made in this order. These Crl.MC No.1027/2010 17 observations were made only for the limited purpose of considering the question as to whether Section 482 of the Code of Criminal Procedure has to be invoked or not and not for any other purpose. The parties are directed to appear before the court below on 30.08.2013. The office is directed to communicate this order to the court below at the earliest and return the records to the court below immediately. ## **K.RAMAKRISHNAN,JUDGE** sta Crl.MC No.1027/2010 18