K.M. Hazzan, P.S. Sidhiq & P.U. Muhammed v. Hanisabi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930** **CRL.REV.PET.NO. 927 OF 2001()** **----------------------------------------** ## **CC.65/1996 OF JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR** **....................** ## **REVN. PETITIONER(S) - ACCUSED:** **--------------------------------------------** **1. K.M. HAZZAN, S/O.KARITHORI MOIDEENKUTTY OLLUKARA, KUNNATHUMKARA, PRESIDENT OF KALATHODE MAHALLU COMMITTEE.** **2. P.S. SIDHIQ, S/O.PANIKASSERY SAID MUHAMMED OLLUKARA, MANNUTHY, SECRETARY OF DO.** **3. P.U. MUHAMMED, S/O.IMBICHI MOIDEEN, THRISSUR, PROPRIETOR LAL PRINTERS NADATHARA VILLAGE, POOCHERTTY** ## **BY ADVOCATES M/S. M.R. VENUGOPAL & SMT.DHANYA** ## **RESPONDENT(S) - RESPONDENT:** **-------------------------------------------** ## **HANISABI, W/O.AMBALATHVEETTIL SAIDUMUHAMMED, KALATHODU, OLLUKARA, THRISSUR.** **ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26.9.2008, THE COURT ON 20/10/2008 PASSED THE FOLLOWING:** **“C.R.”** ## **THOMAS P.JOSEPH, J.** = = = = = = = = = = = = = = = = = = = = = = = = **CRL.R.P. No.927 of 2001** = = = = = = = = = = = = = == = = = = = = = = = = = **Dated this the 20[th] day of October, 2008** **O R D E R** -------------- The question raised in this revision is whether the restriction contained in Section 199 of the Code of Criminal Procedure (for short, “the Code”) on the right of a person to prefer a complaint is applicable to the person who came forward to continue the proceedings on the death of the original complainant. Learned counsel for the revision petitioners contended that the person willing to continue the proceedings after the death of the original complainant should himself be a 'person aggrieved' while according to the learned counsel for respondent, the ban under Section 199 of the Code is applicable only in the matter of taking cognisance. 2. Though the general rule is that any person whether himself aggrieved or not by the offending act could make a complaint with a view to take action under the Code, Chapter XIV of the Code imposes conditions in the matter of 'taking cognizance' of certain offences. Section 199 of the Code which relates to prosecution for defamation states that “no ## **CRL. R.P. No.927 of 2001** ## **-: 2 :-** 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”. The proviso states that where such person is disabled from preferring a complaint for the reasons sated in the proviso, some other person may, with the leave of the court, make a complaint on his or her behalf. In this case, complaint for the offence punishable under Section 500 of the Indian Penal Code (for short, “the Penal Code”) was preferred by the person allegedly defamed. Learned magistrate took cognizance of the offence and initiated proceedings against revision petitioners. While the case was pending, complainant died. Respondent came forward willing to continue the proceedings and filed Crl.M.P. No.988 of 2001 to implead herself in the compliant. Despite objection raised by revision petitioners, learned magistrate as per the impugned order allowed the prayer. According to learned counsel for revision petitioners, respondent is not a “person aggrieved” by the imputations and as such the order of impleadment is bad in law. Learned counsel submitted that the alleged defamatory statement concerned the performance of the deceased complainant as a paid Secretary of a Mahal committee and as such respondent who is his niece cannot be termed as a person aggrieved and entitled to continue ## **CRL. R.P. No.927 of 2001** ## **-: 3 :-** the proceedings after the death of the complainant. Learned counsel placed reliance on the decisions of this Court in **Mathew v. Balan** (1984 KLT 893) and **Nazeem Bavakunju v. State & others** (1987 (2) KLT 755). Counsel for respondent in support of his contention that the restriction contained in Sec.199 of the Code is only in the matter of taking cognizance, placed reliance on the decision of this Court in **C.M. Stephen v. John Manjooran** (1970 KLT 545). 3. Section 199 of the Code uses the words “some person aggrieved”. So far as the words “some person aggrieved” are concerned, there cannot be inflexible rule that those words limit the right to make a complaint for the offence of defamation to the person actually defamed. The words in Sec.199(1) of the Code cannot be understood as having the narrow meaning that none other than the person defamed could prefer a complaint. Whether a person is aggrieved by the imputations depends on the facts and circumstances of each case. For instance, if an imputation of immorality is attributed to a girl, the reputation of her father would also be at stake and hence, the father of the girl concerned can also be said to be a “person aggrieved”. The object of incorporating the words “some ## **CRL. R.P. No.927 of 2001** ## **-: 4 :-** person aggrieved” is only to limit the right to file complaint for the offence of defamation to the person who suffered the injury. 4. The question for consideration and decision is whether such restriction is applicable to a person who comes forward willing to continue the proceedings on the death of the complainant at whose instance cognizance of the offence has been taken. The Chief Court of Punjab and Lahore in **Ishar Das v. Emperor** (1908 (7) Crl. L.J. 290, held that the maxim “actio personalis moritur cum persona (i.e. a personal right of action dies with the person) is applicable in the matter of prosecution for defamation since that is essentially a personal action and institution of the proceedings depended on the temperament of the person defamed. Dissenting from that view Mosely, J., in **U. Tin Maung v. The King** (AIR 1941 Rangoon 202) held that the words “some person aggrieved” occurring in Sec.198 of the Code (as it then stood) only limited the court's power of initial cognizance. Once the court has seizin of the case, there is nothing to prevent the court from proceeding with it. A learned Single Judge of Madhya Pradesh High Court followed that view in **Nathu Jeorakhan v. Sheopal Kuppa** (AIR 1963 MP 47). The Apex Court considered the issue though in relation to the offences ## **CRL. R.P. No.927 of 2001** ## **-: 5 :-** punishable under Sections 493 and 496 of the Penal Code in **Ashwin v. State of Maharashtra** (AIR 1967 SC 983) and held that the bar under Sect.198 of the Code is removed when the aggrieved person files a complaint, and that his presence throughout trial is not necessary. Though the court cannot substitute a new complainant in the place of a deceased complainant, it has the power to authorise the conduct of the prosecution by any person. A learned Single Judge of the Allahabad High Court in **Abdul Hakim v. State** (1973 Crl.L.J. 492) took the view that a proper and fit person could be permitted to continue the proceedings on the death of complainant in a prosecution for the offence of defamation. 5. The words “take cognizance” is not defined in the Code. The word 'cognizance' is used in the Code to indicate the point when the court takes judicial notice of an offence. “Taking cognizance” is a judicial act taken with a view to prosecute the offender and it is the primary stage for commencement of the inquiry or trial. The court applies its mind to the facts set out in the compliant and decides whether it is necessary to proceed further in the matter against the offender. When the court takes cognizance, it assumes jurisdiction over the case. “Taking cognizance” is different from initiation of proceedings though taking cognizance is a condition precedent to the ## **CRL. R.P. No.927 of 2001** ## **-: 6 :-** ## initiation of the proceedings. 6. Section 256 of the Code deals with non-appearance or death of the complainant. Non-appearance of the complainant may be due to his death. Section 256 does not require that whenever the complainant is absent, complaint should be dismissed. It gives wide discretionary power for the magistrate to adjourn the case to another day. Section 302 of the Code confers power on the magistrate to permit conduct of the prosecution by any person subject to the exceptions provided therein. The power of the magistrate is not restricted by the condition imposed on the right of a person to make a complaint for the offence of defamation as stated in Sect.199(1) of the Code. 7. In this case, cognizance was taken of the offence against the revision petitioners on the complaint made by the person against whom imputations were made. During the pendency of that case the complainant died and the respondent who is the niece of the deceased complainant came forward expressing willingness to continue the proceedings which learned magistrate vide the impugned order, allowed. There is no indication in Sec.199 or any other provision of the Code restricting the power of the magistrate to allow a person to continue the proceedings on the death of the person aggrieved at ## **CRL. R.P. No.927 of 2001** ## **-: 7 :-** whose instance cognizance of the offence was taken. On the other hand, proviso to Sec.199(1) of the Code provides that when the person aggrieved is unable to make a compliant in the circumstances stated therein, any other person whether aggrieved or not by the imputations may make a complaint on behalf of the person aggrieved, the only condition being that he must obtain leave of the court. There is no reason to think that the framers of the Code intended to prescribe more restrictions on a person who is willing to continue the proceedings on the death of the person aggrieved and at whose instance cognizance of the offence had already been taken. The position may be different if the person aggrieved and who preferred the complaint died even before cognizance was taken. The contention that the person who comes forward to continue the proceedings must also be a person aggrieved as in the case of the complainant at whose instance cognizance has been taken, cannot therefore be sustained. In C.M. Stephen v. John Manjooran referred supra, Bhaskaran, J., (as His Lordship then was) held that it is permissible to substitute a fit and proper person in the place of the deceased complainant to maintain the prosecution if the complainant died pending the complaint. I respectfully agree with that view. The decisions relied on by the learned counsel for revision petitioners ## **CRL. R.P. No.927 of 2001** ## **-: 8 :-** do not apply to the facts of the case. 8. That apart, on the facts of this case the respondent who came forward expressing willingness to prosecute the case is the niece of the deceased complainant. One of the imputations said to be made against the deceased complainant is that he, as paid Secretary of the Mahal Committee received money on behalf of the Mahal Committee but neither issued receipts nor accounted the same (and thereby misappropriated it). That imputation concerning the integrity and character of the deceased complainant is sufficient to cause anguish to his relatives, respondent being one among them. Respondent therefore is also a person aggrieved and thus a competent person to continue the proceedings. 9. The maxim, “actio personalis moritur cum persona” does not apply to criminal proceedings for the offence of defamation. Revision Petition is dismissed Criminal Miscellaneous Petition No.4396 of 2001 shall stand dismissed. ## **THOMAS P.JOSEPH, JUDGE.** vsv ## **CRL. R.P. No.927 of 2001** ## **-: 9 :-** **THOMAS P.JOSEPH, J. =================== CRL.R.P. NO.927 OF 2001 ===================** **O R D E R** **20TH OCTOBER, 2008**