M.L.Meena, Dr. Mahesh Verma and Dr.S.K.Ojha v. State of Kerala and Dr. Joseph Issac

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **FRIDAY, THE 26TH DAY OF JULY 2013/4TH SRAVANA, 1935** ## **Crl.MC.No. 3847 of 2011 ( )** **---------------------------CC.NO. 205/2011 OF CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM** **------------------------------------------** ## **PETITIONER(S):** **--------------------------** ## **1. M.L.MEENA,** **THE LAW OFFICER, DENTAL COUNCIL OF INDIA (DCI) AIWAN-E-GALIB MARG, KOTLA ROAD, NEW DELHI-110 002.** ## **2. DR.MAHESH VERMA,** **VICE PRESIDENT (FORMERLY ACTING PRESIDENT) DENTAL COUNCIL OF INDIA (DCI), AIWAN-E-GALIB MARG, KOTLA ROAD, NEW DELHI-110 002.** ## **3. DR.S.K.OJHA,** **OFFICIATING SECRETARY, DENTAL COUNCIL OF INDIA (DCI) AIWAN-E-GALIB MARG, KOTLA ROAD, NEW DELHI-110 002.** **BY ADV. SRI.ALEXANDER THOMAS** ## **RESPONDENTS :** **-----------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.PIN-682 031** **2. DR.JOSEPH ISSAC, S/O.K.E.ISSAC, G-398, PANAMPILLY NAGAR, KOCHI-682 036.** **R1 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN R2 BY ADV. SRI.K.R.VINOD** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11-07-2013, THE COURT ON 26-07-2013 PASSED THE FOLLOWING:** **sts** ## **CRMC.NO.3847/2011** **APPENDIX** ## **PETITIONER(S) ANNEXURES:** - **ANNEX A1 THE CERTIFIED COPY OF THE PRIVATE CRIMINAL COMPLAINT IN CC.NO.205/2011.** - **ANNEX A2 TRUE COPY OF THE SPECIAL LEAVE PETITION (SLP) NO. 207/2011.** - **ANNEX A3 TRUE COPY OF THE WPC.37520/2010.** - **ANNEX A4 TRUE COPY OF THE ORDER DATED 7/1/2011.** - **ANNEX A5 TRUE COPY OF THE SUMMONS SERVED TO THE IST PETITIONER.** **ANNEX A5(A) TRUE COPY OF THE SUMMONS SERVED TO THE 2ND PETITIONER.** **ANNEX A5(B) TRUE COPY OF THE SUMMONS SERVED TO THE 3RD PETITIONER.** - **ANNEX A6 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.1130/09.** - **ANNEX A7 TRUE COPY OF THE ARREST MEMO IN CRIME NO.1130/09.** - **ANNEX A8 TRUE COPY OF THE FINAL REPORT SUBMITTED BY THE POLICE IN CC.NO.278/10.** ## **RESPONDENTS' ANNEXURES:** ## **NIL** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **CRL.M.C.No. 3847 of 2011** **----------------------------------------** Dated this the **26[th]** day of July, 2013 ## **O R D E R** Smt.M.L.Meena - the Law Officer, Dr.Mahesh Verma, the Vice President (Formerly Acting President) and Dr.S.K.Ojha, the Officiating Secretary of the Dental Council of India, a statutory regulatory body constituted under the Dentists Act,1948 and its registered office, situating at Aiwan-E-Galib Marg, Kotla Road, New Delhi are the petitioners herein, who preferred the above petition under Section 482 of the Cr.P.C., praying inter alia to call for the entire records leading to the institution of C.C.No.205 of 2011 pursuant to Annexure A1 complaint on the file of the court of the Chief Judicial Magistrate, Ernakulam and to quash Annexure A1 complaint and all proceedings taken in C.C.No.205 of 2011, as they are being aggrieved in implicating them as accused in the above case. 2. Annexure A1 is the complaint preferred by the second Crl.M.C.No.3847 of 2011 :-2-: respondent herein under Sections 190 and 200 of the Code of Criminal Procedure (hereinafter referred to as 'the Cr.P.C.') alleging the offences punishable under Sections 500,501 and 502 of the I.P.C. against the accused therein, who are the petitioners in the present proceedings. 3. The subject matter of the complaint and the allegation against the petitioners/accused is that the complainant approached this Court by filing WP(c) No.37520 of 2010 being a public interest litigant with a prayer for issuing a writ of certiorari to call for the records including the proceedings of the Executive Committee of the Dental Council of India by which it appointed one Major General (Retd.) Dr.P.N.Awasthi as Advisor/Consultant and to quash the same. It is also prayed for issuing a writ of mandamus interdicting the Secretary and Acting President of the Dental Council of India for permitting the said Dr.P.N.Awasthi from functioning as Advisor/Consultant or in any other post in the Dental Council of India and along Crl.M.C.No.3847 of 2011 :-3-: with the above writ petition, the complainant sought an interim relief by way of an order restraining the said Dr.P.N.Awasthi from functioning as an Advisor or any other post in the Dental Council of India and this Court granted an order dated 17.12.2010 as prayed for. It is the further case of the complainant that the Dental Council of India, at the instance of the petitioners/accused, challenged the said interim order before the Hon'ble Supreme Court, by filing Special Leave Petition (C) No. 207 of 2011 invoking the special appellate jurisdiction of the Supreme Court of India and in the said special leave petition, under the caption “ _Synopsis and list of dates_ ” in item No.xvii, in page No.F, it is stated as “ _Dr.Joseph Issac is also a person is a man of dubious nature_ ” and according to the complainant, in Page No.”O” of the synopsis and in Item No.iv, it is pleaded there as “ _the writ petitioner himself is a man of dubious nature, a First Information Report No.1130/2009 under Section 507 of the Indian Penal Code which was lodged on_ Crl.M.C.No.3847 of 2011 :-4-: _28.9.2009 against the petitioner and he was charge sheeted and arrested on 8.12.2009 and tried by the Additional Chief Judicial Magistrate Court (Economic Offence), Ernakulam u/s 173(2) of the Cr.P.C._ ” According to the complainant, further in page No.13 of the above special leave petition, a lawyer certificate is exhibited in which it is stated by the lawyer of the Dental Council of India as “ _This certificate is given on the basis of the instructions given by the petitioner/person authorised by the petitioner, whose Affidavit is filed in support of the Special Leave Petition._ ” It is also the case of the complainant that in page No.14 of the Special Leave Petition, the third accused, in the absence of Secretary, filed an affidavit stating that the contents of the Special Leave petition were read over and explained to him and all the statements are absolutely true to his knowledge and records. According to the complainant, the duty of the first accused is to ratify and give advices to the counsel being engaged by the Dental Council of India and when Crl.M.C.No.3847 of 2011 :-5-: enquiring about the reality, he has submitted such a note referred above on 18.1.2011 to the concerned lawyer knowing fully well that the note is absolutely false and the complainant is innocent. So, according to the complainant, the above quoted pleadings and averments in the Special Leave Petition, which are per se defamatory are incorporated in the Special Leave Petition in pursuance of their common intention to malign the complainant in front of the public and other known persons to him and with the said intention to defame and malign the complainant, they did the aforesaid act. Thus, according to the respondent/complainant, the petitioners/accused have committed the offences punishable under Sections 500,501 and 502 of I.P.C. 4. On filing the above complaint, a copy of which is produced along with this Crl.M.C. as Annexure A1, in due compliance of the statutory formalities, the learned Chief Judicial Magistrate at Ernakulam took cognizance upon the Crl.M.C.No.3847 of 2011 :-6-: complaint for the above offences. It is against the above Annexure A1 complaint and the proceedings adopted by the court below in taking cognizance upon Annexure A1/complaint for the above said offences against the petitioners, they preferred the present petition under Section 482 of the Cr.P.C,. with the above referred prayers. 5. Heard Sri.Alexander Thomas, learned Standing Counsel for the Dental Council of India, who is appearing for the petitioners/accused and Sri.K.R.Vinod, learned counsel for the second respondent/complainant and the learned Public Prosecutor for the first respondent State. 6. Mr.Alexander Thomas, the learned Standing Counsel for the Dental Council, after taking me through the materials produced along with this petition and through various provisions of the Indian Penal Code as well as the Code of Criminal Procedure, submitted that a mere perusal of the complaint itself would show that no offences under Sections 500,501 and 502 of Crl.M.C.No.3847 of 2011 :-7-: I.P.C. are attracted as the pleadings and averments in the complaint do not spell out the facts constituting the essential ingredients of the above offences. According to the learned counsel, while challenging the interim order of this Court mentioned above in the Supreme Court, it was incumbent upon the petitioners to convince the Apex Court that the complainant, who was the writ petitioner, was not entitled to get the interim relief as sought for, in exercise of the discretionary powers of this Court under Article 226 of the Constitution of India, by showing that the hands of the writ petitioner were not clean and to attain the above object and towards discharging the duties of the petitioners, under the bona fide belief, they took such a pleading in the Special Leave Petition to project the character of the complainant/petitioner, the said pleading was incorporated in the S.L.P. After taking me through Annexure A6 FIR, A7 memo of arrest and A8 final report, connected with crime No.1130 of 2009 of Ernakulam Town South Police Station, Ernakulam, the Crl.M.C.No.3847 of 2011 :-8-: learned counsel submitted that the petitioners eventually pleaded before the Supreme Court on the basis of the facts revealed from the above documents showing the character of the complainant, since the same was inevitable to support the prayer in the Special Leave Petition. It is also the contention of the learned counsel for the petitioners that in the light of the above referred documents and the factual aspect involved in the case definitely attract the Exceptions first, fourth,eighth and ninth of Section 499 of I.P.C. and the court below was not justified in taking cognizance for the above offences against the petitioners. It is the point raised by the learned counsel for the petitioner that in order to attract the offence of defamation that contained in Section 499 of I.P.C., the publication of the imputation, defaming any person is absolutely inevitable, but in the present case, no averments and no facts are alleged to show any publication of such defamatory statement, at the instance of the petitioners. Crl.M.C.No.3847 of 2011 :-9-: 7. Another important and vital point raised by the learned counsel for the petitioners is that the petitioners have got privilege and the imputation alleged to have made against the respondent/complainant in the S.L.P. is protected as the said imputations are coming under the privilege class. It is also pointed out by the learned counsel for the petitioners that even if it is admitted for the sake of argument that what projected in the Special Leave Petition and as alleged in the complaint is false or factually incorrect so as to defame the complainant, it is for the Honourable Supreme Court to initiate proceedings against the petitioners under Section 340 of the Cr.P.C. if the same are coming under Section 195 of the Cr.P.C. But, in the present case, the Honourable Apex Court has not recommended for such proceedings. It is also the contention of the learned counsel for the petitioners that as the petitioners herein were not amenable for the unlawful demand of the complainant, he preferred the present complaint against the petitioners with ulterior motive to Crl.M.C.No.3847 of 2011 :-10-: wreck vengeance against them. In support of the above submissions, the learned counsel for the petitioners placed reliance and cited the following decisions reported in **Abdul - - Rehman and others** v. **K.M.Anees Ul Haq** [(2011)10 SCC 696], **Kuttiah** v. **Federal Bank Ltd.** [2006(3) KLT 418], v. **Daniel** v. **Jayasankar Reghuvaran** [2001(3) KLT SN 45] and **Hymavathy Amma** [1985 KLT 574] and **Gopalankutty Nair** v. **Sankunny Ezhuthassan** [1971 KLT 393 (FB)]. 8. On the other hand, Mr.K.R.Vinod, the learned counsel appearing for the second respondent, vehemently submitted that all the allegations and contentions advanced by the petitioners before this Court are untenable and unfounded since there is no evidence or material, which is yet to be adduced during the trial of the case and no finding can be entered into by this Court in a proceedings under Section 482 of the Cr.P.C. After taking me through Section 499 of the I.P.C., the learned counsel for the second respondent submitted that in order to attract Section 499 Crl.M.C.No.3847 of 2011 **==> picture [27 x 9] intentionally omitted <==** of I.P.C., the publication of defamatory article or statement is immaterial or unwarranted and the offence of defamation is complete when such a statement or imputation is made. According to the learned counsel for the second respondent, even if a statement is made in the Special Leave Petition or in the affidavit filed thereto, during the proceedings of the court, the offence under Section 499 is attracted and no privilege can be claimed. Inviting my attention to the decision of this Court in **Shybimon** v. **Haridas** [2010(2) KHC 607], even if a defamatory statement is made in an affidavit during the course of judicial proceedings, Sections 499 and 500 of I.P.C. are attracted. It is also the contention of the learned counsel for the respondents that the contentions of the learned counsel for the petitioners and the petitioners which are protected under the exceptions of Section 499 of I.P.C. are to be raised before the trial court during the trial, particularly after the stage of evidence and it is for that court to decide whether such exceptions are attracted or Crl.M.C.No.3847 of 2011 **==> picture [28 x 9] intentionally omitted <==** not. Thus, according to the learned counsel, there is no merit in the above Crl.M.C. and the same is liable to be dismissed. 9. I have carefully considered the arguments advanced by the learned counsel for the petitioners as well as the second respondent. I have perused the materials and documents produced along with this Crl.M.C. and I have gone through the decisions cited supra. 10. In the light of the rival pleadings and also the materials produced along with this petition and in view of the decisions cited supra, the only question to be considered is whether Annexure A1 complaint discloses any offence under Sections 500,501 and 502 against the petitioners and whether the institution of Annexure A2 based upon Annexure A1 complaint is legal, proper and regular and the further question to be considered is whether the court of the Chief Judicial Magistrate, Ernakulam has got territorial jurisdiction to take cognizance for the alleged offence and whether any cause of Crl.M.C.No.3847 of 2011 :-13-: action arose for the respondents to file the complaint in the said court. 11. At the outset, it is to be noted that it is an undisputed fact that the complainant, who is the second respondent herein, was an accused in Crime No.1130 of 2009 of the Ernakulam Town South Police Station as evidenced by Annexure A6 FIR, Annexure A7 arrest memo issued against the complainant, and Annexure A8 final report filed in Crime No.1130 of 2009 of the Ernakulam Town South Police Station before the CJM Court, Ernakulam whereby the complainant is charge sheeted on 7.10.2009 for the offence punishable under Section 507 of I.P.C. and the court took cognizance for the said offence on 19.12.2009. It is also beyond dispute that the respondent/ complainant approached this Court by filing Annexure A3 writ petition with the prayers which I have already indicated above and this Court has passed an interim order, in terms of the interim relief sought for in the above W.P(C). It is against the Crl.M.C.No.3847 of 2011 :-14-: said order of this Court, the second respondent, which is the Dental Council of India, in Annexure A3 writ petition, preferred the above Annexure A2 special leave petition before the Hon'ble Supreme Court in Delhi. 12. It is relevant to note that in paragraph 2 of Annexure A2, the question of law muted in clause 'E' is ' _whether the court should play in hands of a person who take legal recourse to settle the personal vendetta._ ' In support of the above legal point, in paragraph 5, several grounds are taken. In ground 'f', it is stated as _'because the interim order passed by the Hon'ble High Court is illegal, arbitrary in nature and contrary to the public policy and in the greater interest of Council_ .' In para 'g', the ground is ' _because the balance inconvenience lies in favour of the petitioner and there was no irreparable loss to the respondent herein and hence the Hon'ble High Court ought not have passed any interim order restraining the engagement of Dr.Awasthi as a consultant_ '. The ground 'h' is relevant and most Crl.M.C.No.3847 of 2011 :-15-: important for the purpose of the present issue. It is stated ' _because Dr.Joseph has no locus standi to prefer the writ petition and more over looking into his conduct, the writ petition filed is nothing but a sheer abuse of process of law as the writ petition was filed because of personal vendetta against_ _Dr.Awasthi._ ' It appears to me that in order to substantiate the above legal point raised and the ground urged, the petitioners therein under the synopsis and list of dates of the above Annexure A2 Special Leave Petition, particularly under clause (xvii) has stated as follows: “ _(xvii) Academic Activity of Maj.Gen (Retd.) P.N.Awsthi during the tenure as Secretary DCI_ :- (a) xxxxx xxxxx xxxx xxx (b)xxx xxxx xxx xxxx xxxx xxx ## _Annexure-P/1_ _That one Dr.Joseph Issac who was the Respondent no.1 in the Special Leave Petition had a personal vendetta against Dr.P.N.Awasthi. Dr.Joseph Issac wanted to be a part of the teaching faculty in Pushpagiri College of Dental Sciences, Trivalla, Kerala but since he did not fulfil the laid down norms of the Dental Council_ Crl.M.C.No.3847 of 2011 :-16-: _of India, hence Dr.P.N.Awasthi who pointed out this anomaly by which he was not accepted was a reason for him to be upset with him.”_ 13. In the light of the above facts and circumstances and in the given situation, the question to be considered is whether the pleadings that contained in clause (xvii) coming under the synopsis and list of dates in Annexure A2 against the complainant that “ _Dr.Joseph Issac is also a person is a man of dubious nature and the matter of fact a First Information Report No.1130/2009 u/s 507 of the Indian penal Code which was lodged on 28.9.2009 against them and he was charge sheeted and arrested on 8.12.2009, and tried by Addl.Chief Judicial Magistrate Court (Economic Offence), Ernakulam u/s.173 of Cr.P.C._ ,” would come within the first, fourth,eighth or ninth exception under Section 499 of I.P.C. which read as follows:- _“First Exception.--_ _**Imputation of truth which public good requires to be made or published.** --It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact._ _Second Exception.----_ Crl.M.C.No.3847 of 2011 :-17-: _Third Exception.---_ _Fourth Exception.--_ _**Publication of reports of proceedings of Courts** .--It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings._ _Explanation.--A Justice of the Peace or other officer holding an inquiry in open Court preliminary to a trial in a Court of Justice,is a Court within the meaning of the above section._ _Fifth Exception.-Sixth Exception.-Seventh Exception.--_ _Eighth Exception.--_ _**Accusation preferred in good faith to authorised person** .--It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation._ _Ninth Exception.--_ _**Imputation made in good faith by person for protection of his or other's interests.** --It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.”_ In this juncture, according to me, the contention advanced by the learned counsel for the petitioner assumes importance. As I indicated earlier, it is an indisputable fact that the second respondent/complainant was an accused in Crime No.1130 of 2009 of the Ernakulam Town South Police Station at the time of filing Anenxure A2 special leave petition which fact is more Crl.M.C.No.3847 of 2011 :-18-: vivid as per Annexures A6,A7 and A8. As I indicated earlier, the petitioner in the S.L.P., who was the second respondent in the above writ petition is a statutory body and the writ petition was filed challenging the proceedings of the said statutory body. Based upon such writ petition, an interim order was issued by this Court, which was the subject matter of the S.L.P. and therefore, it was incumbent upon the said council, the petitioner in the S.L.P. to canvass whatever proposition available in support of its challenge against the interim order and to convince the appellate court about the illegality, incorrectness, impropriety and irregularity of the order passed and towards the same, and obviously, it is the burden upon the petitioners to convince the Apex Court that as the hands of the respondent/complainant were not clean, he was not entitled to get an order in exercise of the discretionary powers of the High Court of Kerala under Article 226 of the Constitution of India. It is well settled that a person, who invoked the discretionary Crl.M.C.No.3847 of 2011 :-19-: powers of the High Court under Article 226 of the Constitution of India, is not entitled to get any relief thereon if his hands are not clean and if he suppresses material facts deliberately, especially when the High Court was called upon to exercise its powers upon an issue not concerned with the person who approached the court. In the present case, it is beyond dispute that the respondent/complainant preferred the above writ petition not connected with any of his right either under common law right or any statutory right. It is also the case of the petitioner in the S.L.P. that the writ petition was moved by the second respondent/complainant to wreck vengeance against Dr.Awasthi and thereby to disturb the proceedings issued by the Dental Council in favour of the said Dr.Awasthi. So it was incumbent the leave before the upon special petitioner Honourable Apex Court to bring those facts to the notice of the Apex Court towards the prosecution of the above Special Leave Petition, particularly as part of the duties of the petitioner therein Crl.M.C.No.3847 of 2011 :-20-: to meaningfully challenge the interim order passed by this Court. So, according to me, no mala fide can be alleged against the petitioners in making such plea in the S.L.P. 14. It is further relevant to note that whatever facts stated against the respondent/complainant in the S.L.P. are only true facts, as disclosed by the speaking documents like Annexures A6,A7 and A8 and counsel for the respondents has also admitted the said facts. But, the learned counsel for the respondent submitted that the respondent/complainant was discharged from the above criminal case and therefore, there is no factual footing for the said averment against the complainant. I am unable to sustain the above contention. It is relevant to note that Annexure A2 Special Leave Petition was filed on 3.1.2011, but the respondent/de facto complainant was discharged from the criminal case covered by Annexures A6,7 and 8 documents only on 26.6.2011 and that too after disposing of Annexure A2 Special Leave Petition by the Honourable Supreme Court on Crl.M.C.No.3847 of 2011 **==> picture [28 x 9] intentionally omitted <==** 7.1.2011. So, it is crystal clear that when Annexure A2 S.L.P. was filed, the respondent/complainant was an accused as evident from Annexures A6,A7 and A8 and criminal proceedings were pending against him. More over, as rightly pointed out by the learned counsel for the petitioner, the word _'dubious_ ' means circuitous, erring, not straight forward as seen from the Concise Oxford Dictionary (hesitating or doubting). It appears that the petitioners made such pleading in the light of the facts spelled out from Annexures A6,A7 and A8 documents as on the date of filing of the S.L.P., which, according to the petitioners, was absolutely necessary to substantiate their pleading to show that the respondent/complainant, who was the writ petitioner, was undeserved to get such discretionary relief. A learned Judge of this Court in the decision reported in v. **Jayasankar Reghuvaran** [2001(3) KLT SN.45 (Case No.61) has held that the statements made in the objection in good faith for the protection of their interest fall under Exception 9 to Crl.M.C.No.3847 of 2011 :-22-: Section 499. So, according to me, the above pleading contained in Annexure A2 cannot be treated as defamatory and such pleadings will be protected by 1st,4[th] ,8[th] and 9[th] exception to Section 499 of I.P.C. 15. In the decision in Daniel's case (supra), this Court has observed that an examination of the common law of England would show that the English Courts have accepted that statements made by Judges,Juries, counsel, parties and witnesses in the course of trial in the course of any judicial proceeding or statements made on previleged occasions and the maker of the statements is saved from civil action by the rule of absolute privilege and no action will lie for damages. In paragraphs 15 and 16, this Court has further held as follows:- “ _15. Courts in India also have considered this question. In Adivaramma's case, Madras High Court held that while statements in order to be protected need not be absolutely relevant, statements which have no earthly connection with the case may not be protected. In Hindustan Gilt Jewel Work's case Madras High Court observed that the statements must have some reference to the enquiry and not entirely irrelevant though the expression "reference to enquiry" must be given a very wide_ Crl.M.C.No.3847 of 2011 :-23-: _and comprehensive application._ _16. There is logic behind this rule. When participating in a judicial proceeding, persons concerned must be able to devote their entire attention to the conduct of the proceedings, be they Judges, counsel, parties or witnesses. At every stage they should not be compelled to pause and analyse the absolute relevancy of the statements they proposed to make in the course of proceedings; to insist that they should do so would seriously hamper and weaken judicial process. At the same time statements which are absolutely irrelevant or are made de hors the matter in hand or have no reference to the matter of enquiry cannot be privileged. It must always be borne in mind that in deciding whether a statement has reference to the matter of enquiry, the widest and most comprehensive interpretation must be given.”_ 16. It is further relevant to note that such pleadings are taken in Annexure A2 as part of the proceedings in the Apex Court while the petitioners preferred Annexure A2 special leave petition to protect the interest of the Dental Council, which is a statutory body and thereby to save or protect the interest of the general public. 17. In this juncture, it is pertinent to note that such a pleading, which according to the respondent/the complainant, amounts to defamation, was made during the course of the proceedings before the Honourable Apex Court. If that be so, Crl.M.C.No.3847 of 2011 :-24-: according to me, as rightly pointed out by the learned counsel for the petitioner, it is a matter covered by Chapter XXVI of the Cr.P.C. which deals with the provisions as to offences affecting the administration of justice. If Section 340 is attracted or applicable, with respect to the offences covered by Section 195 of the Cr.P.C., the specific provisions are engrafted in the Cr.P.C. and it is for the court concerned to initiate appropriate proceedings against the wrong doer either upon the complaint preferred by the aggrieved person or otherwise. In the present case, the Honourable Apex Court has not initiated or recommended any such proceedings either suo motu or upon a petition filed by any person including the respondent/complainant. In this juncture, the decisions cited by the learned counsel for the petitioners have become relevant and applicable. In the decision reported in Abdul Rehman's case (supra), allowing the appeal therein, the Apex Court has held as follows:- Crl.M.C.No.3847 of 2011 :-25-: “ _24. It was next argued by the learned counsel for the respondent that while an offence under Section 221 IPC cannot be taken congizance of, there was no room for for interfering with the proceedings insofar as the same related to the commission of an offence punishable udner Section 500, since the bar of Section 195 Cr.P.C. was not attracted to the proceedings under Section 500 IPC. The argument though attractive does not stand closer scrutiny._ _25. The substance of the case set up by the respondent is that the allegations made in the complaint lodged with CAWC accusing him of an offence punishable under Section 406 IPC and Section 3 and 4 of the Dowry Prohibition Act were false which according to the respondent tantamounts to commission of an offence punishble under Section 211 IPC apart from an offence punishable under Section 500 IPC. The factual matrix for both the offences is however one and the same. Allowing the respondents to continue with the prosecution against the appellants for the offence punishable under Section 500 IPC would not, in our opinion, subserve the ends of justice and may result in the appellants getting vexed twice on the same facts, We are doubtless conscious of the fact that any complaint under Section 500 IPC may become time-barred if the complaint already lodged is quashed. That is not an insurmountable difficulty and can be taken care of by moulding the relief suitably._ _26. It would, in our opinion, be appropriate if the orders passed by the Metropolitan Magistrate and that passed by the High Court are set aside and the complaint filed by the respondent directed to be transferred to the court dealing with the charge-sheet filed against the respondent. The said court shall treat the complaint as an application for filing of a complaint under Section_ Crl.M.C.No.3847 of 2011 :-26-: _211 IPC to be considered and disposed of at the final conclusion of the trial; having regard to the provisions of Section 340 IPC and the finding regarding guilt or innocence of the respondent as the case may be recorded against him. The respondent shall also have the liberty to proceed with the complaint insofar as the same relates to commission of the offence punishable under Section 500 IPC depending upon whether there is any room for doing so in the light of the findings which the court may record at the conclusion of the trial against the respondent._ _27. In the result, these appeals are allowed, and the orders dated 3.2.2003 passed by the Metropolitan Magistrate and that passed by the High Court dated 26.2.2008 are quashed. Criminal Complaint No.180/1 of 2002 filed by the respondent shall stand transferred to the court of competent jurisdiction seized of the charge sheet filed against the respondents, for such orders as the court may deem fit at the conclusion of the trial of the respondent having regard to the observations made above.”_ Thus, it is relevant to note that no proceedings are taken by the Apex Court against the petitioners with respect to the alleged statement made in Annexure A2. The Full Bench of this Court in the decision reported in Gopalankutty Nair's case (cited supra) has held as follows:- “ _6 There can be no dispute that any step which is essentially a step in a judicial or quasi judicial proceeding would be immune from liability for defamation_ Crl.M.C.No.3847 of 2011 :-27-: _as it gives rise to an occasion for absolute privilege. If proceedings under S.107 or 145 of the Criminal Procedure Code are judicial in character, then, there can be no question that a petition to initiate proceedings under either of the sections is essentially a step in a judicial proceeding, and would give rise to an occasion for absolute privilege. Whether a proceeding under S.107 before the issue of notice to the opposite party by the magistrate is judicial or administrative in character is a matter on which there is scope for controversy. But I think that the proceeding from its inception is judicial or quasijudicial in character. It is however difficult to bold that Ext. A1 is a petition to initiate proceedings. under S.107. S.107 (1) reads:_ _“ "Whenever a Presidency Magistrate, District Magistrate, Sub Divisional Magistrate or Magistrate of the first class is informed that any person is likely to commit a breach of the peace or disturb the public tranquillity, or to do any wrongful act that may probably occasion a breach of the peace, or disturb the public tranquillity, the Magistrate if in his opinion there is sufficient ground for proceeding may, in manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period not exceeding one year as the Magistrate thinks fit to fix."_ _Ext. A1 is not a petition invoking the power of the Magistrate under S.107. There is no prayer in it asking for taking any security from the opposite party for keeping the peace. (See for similar case T. Ayyangar v. K. S. Ayyangar AIR. 1957 Madras 756.). Even assuming that Ext. A1 can be treated,as a petition to initiate proceedings under S.107, and therefore gave rise to an occasion for absolute privilege, the question remains whether publication of a copy of the same to the Sub Inspector of Police was absolutely privileged.”_ It is true, the rule of absolute privilege is available connected with the civil proceedings But, in the case of criminal ## Crl.M.C.No.3847 of 2011 :-28-: proceedings and law, the rule of absolute privilege is inapplicable and the rule of qualified privilege comes to the rescue connected with any proceedings in criminal law. According to the learned counsel for the respondents, though defamatory statement is based upon false facts stated before the Honourable Apex Court, the petitioners are not entitled to get any protection or any privilege, in view of the decision in ' s case reported in Shybimon (supra). But, according to me, the above contention on the strength of the decision of a learned ' s case Judge of this Court reported in Shybimon (supra) is unsustainable in the light of the latest decision of the Abdul Rehman's case Honourable Apex Court in (supra), which I have already referred to. A learned Judge of this Court, in Kuttiah's decision (supra) has held that when an offence is seen, shown or alleged to have been committed which falls under Chapter XI of I.P.C., there cannot be a private complaint and such a complaint can be only by the Court as provided in S.340 Crl.M.C.No.3847 of 2011 :-29-: Cr.P.C., specifically in relation to offences enumerated in S.195 (1)(b)(i). A judicial sieve is legislatively put, through which, only such prosecutions as are necessary in the larger interest of justice reach the court competent to try. In the present case, it is relevant to note that the Honourable Apex Court has not recommended any proceedings based upon the so-called defamation statement. A learned Judge of this Court though in a **Ramakrishnan** v. different context, in the decision reported in **State of Kerala** [1998(1) KLT 68] has held that if an offence in terms of Section 463 IPC is alleged to have been committed in the course of a proceeding in court, the true procedure is to make a preliminary enquiry and not directing a Police Officer to investigate into it, which shows that if a false statement is made before the Apex Court which is covered by Section 195(1)(b), it is for the Hon'ble Apex Court to take appropriate action. But, in the present case, as I indicated, no proceedings are initiated or recommended by the Honourable Apex Court connected with Crl.M.C.No.3847 of 2011 :-30-: the statement which, according to the complainant, is defamatory and the facts stated therein are false. 18. It is further relevant to note that as contended by the learned counsel for the petitioner, there is no averment in Annexure A1 complaint that the above pleading contained in Annexure A2 S.L.P. published or circulated to attract Section 499 of I.P.C. To avert the above contention, learned counsel for the respondents, as I indicated earlier, contended that in order to complete the offence under Section 499 of the I.P.C., the defamatory statement need not be published and the offence will be completed on its making. If that be so, according to me, as rightly pointed out by the learned counsel for the petitioners, the court of CJM, Ernakulam has no jurisdiction to entertain Annexure A1 complaint since even if admitted for argument sake that the above referred pleadings amount to defamation, the same was made in New Delhi since Annexure A2 Special Leave Petition was filed before the Honourable Apex Court in New Crl.M.C.No.3847 of 2011 :-31-: Delhi. So, the present trial court has no jurisdiction to take cognizance upon Annexure A1 complaint in which the alleged cause of action arose within the territorial jurisdiction of the court at New Delhi. Therefore, on the above ground also, Annexure A1 complaint is not maintainable in the court below and all proceedings instituted in C.C.No.205 of 2011 upon Annexure A1 are liable to be set aside. In the result, Crl.M.C.No.1347 of 2011 is allowed quashing Anenxure A1 complaint and all proceedings taken thereon and the entire proceedings instituted in C.C.No.205 of 2011, pending against the petitioners in the court of the Chief Judicial Magistrate, Ernakulam. ## **V.K.MOHANAN** , **Judge** . MBS/ Crl.M.C.No.3847 of 2011 :-32-: