Santhi v. Seema Vinod and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 05TH DAY OF NOVEMBER 2020 / 14TH KARTHIKA, 1942** ## **Crl.MC.No.4164 OF 2015** **AGAINST THE ORDER/JUDGMENT IN CC 341/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,PATHANAMTHITTA** ## **PETITIONER/ACCUSED:** **SANTHI AGED 34 YEARS D/O.VALSALA, ETTIVILA HOUSE, PUNNALA.P.O., PATHANAPURAM TALUK, KOLLAM DISTRICT. BY ADVS.** **SRI.V.SETHUNATH SRI.V.R.MANORANJAN (MUVATTUPUZHA)** ## **RESPONDENTS/S:** **1 SEEMA VINOD W/O.VINOD KUMAR, AMBILI SADANAM, KOODAL.P.O., KALANJJOR VILLAGE, PATHANAMTHITTA DISTRICT,PIN-689 893. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.PIN-682 031. BY ADV.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.4164 OF 2015** **2** ## **ALEXANDER THOMAS, J. -----------------------------------Crl.M.C. No.4164 of 2015 -----------------------------------Dated this the 5[th] day of November, 2020** ## **ORDER** The aforecaptioned Criminal Miscellaneous Case filed under Section 482 of the Cr.P.C is as follows: _“…….. to quash the entire proceedings in C.C. No.341/13 on the file of the J.F.M.C. No.I, Pathanamthitta, to secure the ends of justice.”_ 2. Heard Sri.V.Sethunath, learned counsel appearing for the petitioner/accused and Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for R2-State of Kerala. Though notice to contesting respondent No.1 (complainant) has been duly served, as can be seen from the endorsement made by the Registry to that effect as early as on 09.09.2015, the said party has not entered appearance so far. 3. The petitioner herein is the sole accused in Calendar Case, C.C. No.341 of 2013 on the file of the Judicial First Class Magistrate Court-I, Pathanamthitta for offence as per Section.499 of the IPC which is punishable under Section 500 of the IPC. The said Calendar Case has arisen out of a private criminal complaint filed by the 1[st] respondent under Sections 190, 199 and 200 of the Code of the **Crl.MC.No.4164 OF 2015** **3** Criminal Procedure. The learned Magistrate had taken cognizance and then issued summons to the petitioner/accused. The petitioner herein is the wife of the elder brother of the 1[st] respondent’s husband. Due to difference of opinion, the petitioner herein had set in motion matrimonial litigative proceedings with her husband. Accordingly, she has filed MC No.58/2012 before the Judicial First Class Magistrate Court–I, Pathanamthitta seeking various reliefs under the provisions of the Protection of Women from Domestic Violence Act. She has also filed O.P.(Divorce) No.960 of 2013 before the Family Court, Thiruvalla seeking for dissolution of the marriage. The petitioner herein has also filed yet another Original Petition, O.P.No.136 of 2013 before the Family Court, Pathanamthitta seeking for return of gold ornaments and money. Copies of the said petitions have been annexed collectively at Anx.2 in this case. In those matrimonial litigative proceedings, the petitioner has incidentally raised an averment that her husband was having an illicit relationship with the 1[st] respondent herein (complainant), who is the petitioner’s husband’s younger brother’s wife. The 1[st] respondent herein is also respondent No.4 in Annexure No.2 MC No.58 of 2012 filed by the petitioner under the DV Act. It is averred therein that at the relevant time of the institution of the abovesaid matrimonial litigative proceedings, both the petitioner as **Crl.MC.No.4164 OF 2015** **4** well as the 1[st] respondent herein and her husband were living together in the same house as the husbands of the both of the ladies are cobrothers, etc. 4. The 1[st] respondent herein has filed the impugned Annexure 1 private criminal complaint before the Judicial First Class Magistrate Court-I, Pathanamthitta, which led to the institution of the impugned Calendar Case, CC No.341 of 2013 under Section 500 of the IPC mainly on the ground that the abovesaid averments made by the petitioner in the abovesaid matrimonial litigative proceedings about the alleged illicit relationship between the 1st respondent and the husband of the petitioner herein is defamatory statement and that therefore, the petitioner should be punished under Section 500 of the IPC, etc. Now it is pointed out before this Court that the Family Court, Pathanamthitta has already rendered its judgment in O.P.(Divorce) No.960 of 2013 granting divorce to the petitioner herein. 5. The petitioner seeks quashment of the impugned criminal proceedings at Annexure 1. 6. Eighth exception of Section 499 of the IPC, which deals with “ _Accusation preferred in good faith to authorised person”_ , is as follows: **Crl.MC.No.4164 OF 2015** **5** _“Eighth Exception_ _**– Accusation preferred in good faith to authorized 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.”_ 7. Ninth Exception of Section 499 of the IPC which deals with _“Imputation made in good faith by person for protection of his or other's interests”,_ reads as follows: _“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.”_ 8. The Andhra Pradesh High Court in the decision in _**G. Janardhana Reddy v. A. Narayana Reddy & Another**_ [2010 Crl.LJ 2660(AP)] has held that the alleged defamatory imputations in a plaint filed before a civil court are not _per se_ defamatory and that there is no general publication of the alleged imputation, when they were made in the pleadings and evidence in a court of law, etc. The Gujarat High Court in the decision in _**Darusingh Durgasingh v. State of Gujarat & Another**_ [(2006) Crl.LJ 720 (GUJ)] has dealt with the scope of Exception 9 of Section 499 of the IPC, wherein it has been held that averments and allegations made in an affidavit filed in support of a complaint before a court of law in good faith and without malice cannot be treated as defamatory **Crl.MC.No.4164 OF 2015** **6** causing any injury to reputation of the complainant and accordingly, the private criminal complaint for criminal defamation was quashed in that case. The Bombay High Court in the decision _**Sukhdeo Vithal Pansare v. Prahbhakar Sukhdeo Pansare & Another**_ [(1974) Crl.LJ 1435 (Bom)] has held that under the Ninth Exception to Section 499 of the IPC 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 interest of the person making it or of any other person, or for public good, etc. The Calcutta High Court in the judgment in _**Bir Chandra Das v. Anil Kumar Sarkar & Another**_ [2011 CriLJ 3422] has held that false implication by making a false complaint before a court of law would amount to committing fraud on the court and it is for that court to proceed against an erring person etc. This Court in the judgment in _**K.Prabhakaran v. Gangadharan**_ [2006 SCC OnLine Ker 302] has held that, where it is alleged that defamatory statements against complainant were made in a written statement filed before the Court it is held that once the statement has been filed in the court of law, that statement could be taken as published. If such statement amounts to per se defamatory, then it is the duty of the accused to establish that they are justified in making such a statement under any of the Exceptions to Section 499 of **Crl.MC.No.4164 OF 2015** **7** the IPC etc. 9. Eighth Exception and Ninth Exception of Section 499 of the IPC envisage that the person concerned, who makes the statements should make it in good faith. Section 52 of the IPC defines “good faith” stipulating that “ _Nothing is said to be done or believed in good faith, which is done or believed without due care and attention_ ”. In other words, the imputation should be made only after due care and attention. In the instant case, the case projected in the abovesaid matrimonial litigative proceedings at Annexure 2 series is to the effect that the petitioner and the 1[st] respondent herein were living in the same house, as their husbands are siblings. According to the petitioner, she has made the abovesaid statements in Annexure 2 matrimonial litigative proceedings on account of her direct knowledge and perception as the parties were living in the same residence at that point of time and moreover, the 1[st] respondent herein has been made the respondent in Annexure 2 M.C. filed under the Domestic Violence Act. It is also not under dispute that the petitioner herein has been able to succeed to get a decree of her divorce from the Family Court in Annexure 2 O.P (Divorce) No.960 of 2013. Of course, the ground on which the decree of divorce has been granted is on the basis of cruelty. Evaluating from the totality of the facts and circumstances of the case, **Crl.MC.No.4164 OF 2015** **8** more particularly taking into account of the fact that the parties were living in the same house at the relevant time and also the fact that the 1[st ] respondent herein has been arrayed a respondent in Annexure 2 petition filed under the Domestic Violence Act and also taking into account the fact that the petitioner has been able to successfully secure decree of divorce in the abovesaid Original Petition filed before the Family Court, etc., this Court is inclined to take the view that the abovesaid imputation made by the petitioner could be construed to have been made by her in good faith as understood in Section 52 of the IPC. Accordingly, this Court is of the considered view that the continuation of the impugned criminal proceedings would be an abuse of the process of court and the same would warrant interdiction at the hands of this Court by resort to the exercise of the inherent extra ordinary powers conferred under Section 482 of the Cr.P.C. 10. In that view of the matter, it is ordered that the impugned Annexure 1 private criminal complaint, which has led to the pendency of Calendar Case CC No.341/2013 on the file of the Judicial First Class Magistrate's Court-I, Pathanamthitta, in which the petitioner herein has been arrayed as the sole accused and all proceedings emanating therefrom as against the petitioner accused will stand quashed and set aside. **Crl.MC.No.4164 OF 2015** **9** 11. The petitioner herein will produce a certified copy of this order before the Judicial First Class Magistrate Court – I, Pathanamthitta, who is dealing with CC No.341 of 2013, for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **Sd/ALEXANDER THOMAS JUDGE** SCS **Crl.MC.No.4164 OF 2015** **10** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1** **THE CERTIFIED COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT IN C.C.NO.341/13 ON THE FILE OF THE J.F.M.C.NO.I, PATHANAMTHITTA.** ## **ANNEXURE 2** **THE TRUE COPIES OF THE PETITIONS FILED BY THE PETITIONER BEFORE VARIOUS COURT.** //TRUE COPY// PA TO JUDGE