Xavier Pollayil v. C. H. Chandrabhanu and State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` FRIDAY, THE 16[TH] DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945 ``` ``` CRL.MC NO. 759 OF 2016 ``` ``` [TO QUASH ALL PROCEEDINGS IN ANNEXURE A1 COMPLAINT IN C.C.NO.892/2012 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-1, ``` ## `CHERTHALA]` ## `PETITIONER/ACCUSED:` ``` XAVIER POLLAYIL AGED 70 YEARS S/O ANTHONY, POLLAYIL HOUSE, C.M.C.1, CHERTHALA, ALAPPUZHA DISTRICT BY ADV SRI.G.PRIYADARSAN THAMPI ``` ## `RESPONDENTS/DEFACT COMPLAINANT AND STATE:` ``` 1C.H.CHANDRABHANU ADVOCATE, S/O C.K. HARIHARAN, CHETTICHUPARAMBIL, CMC 25, CHERTHALA, ALAPPUZHA DISTRICT 2STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM BY ADVS. R1 BY SRI.R.KRISHNAKUMAR CHERTHALA R2 BY ADV.SEETHA S. SR. PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05.01.2024, THE COURT ON 16.02.2024 PASSED THE FOLLOWING: ``` CRL.MC No.759 of 2016 2 ## **O R D E R** This Crl.M.C is filed by the accused in C.C.No.892/2012 on the file of the Judicial First Class Magistrate Court-I, Cherthala for quashing all further proceedings in the said Calendar Case as against him. The said Calendar Case was registered based on a private complaint submitted by the 1[st] respondent alleging offences punishable under sections 120-B and 500 r/w. Section 34 of the Indian Penal Code (IPC). Annexure A1 is the complaint and cognizance thereon was taken by the learned Magistrate. 2. Initially, the complaint was submitted against two persons. However, cognizance was taken only against the 1[st] accused, the petitioner herein, and no cognizance was taken against the 2[nd] accused. The allegations made in Annexure A1 are as follows: The complainant is a practicing lawyer of Cherthala Bar with 26 years of experience and a member of a reputed family. He was a member of the Rotary Club of Cherthala town. He, along with Advocate K.Premkumar, V.R.Sangeeth and K.S.Manoj, were illegally terminated from the membership of Rotary Club of Cherthala town. Challenging the said termination, they filed a suit CRL.MC No.759 of 2016 3 as plaintiffs before the Munsiff Court, Cherthala, which was numbered as O.S.No.189/2010. The 1[st] accused, the petitioner herein, was the Secretary of the Rotary Club at the relevant time. Along with the suit, an interlocutory application was filed seeking an interim injunction, and on the date of filing the said suit itself, the Munsiff Court passed an interim order restraining the respondent Club therein from prohibiting the participation of the plaintiffs in the meetings of the Club. Certain other I.A.s were also filed. I.A.No.1380/2010 was filed to restrain the Club from changing the venue of the meetings from its usual place of meeting. Yet another interlocutory application, as I.A.No.2767/2010, was filed for a direction to place the attendance book in the meeting hall and not to prevent the plaintiffs in the suit from signing in the attendance book. The petitioner/1st accused filed counter affidavits to I.A.No.1380/2010 and I.A.No.2767/2010, wherein certain objectionable and defamatory imputations were made against the complainant and three others. The relevant statement in the counter affidavit filed in I.A.No.1380/2010 reads as follows `:` “The members of the club are so generous that even the CRL.MC No.759 of 2016 4 spongers or scroungers coming for food are never denied to have a share of food to their satisfaction. However such persons are not entitled to ask for the change of venue of the meetings of the Rotary Club of Sherthallai Town.” Similarly, in I.A.No.2767/2010, the following statements were made. “The members of the club are so generous that even the spongers or scroungers coming for food are never denied to have a share of food to their satisfaction. However such persons are not entitled to ask for the perusal of signing of the attendance book of the meetings of Rotary Club of Sherthallai Town” The complainant alleges that the said statements were defamatory and were made with the intention of defaming the complainant. 3. As mentioned above, the cognizance thereon was taken by the learned Magistrate as against the petitioner alone. This Crl.M.C. is filed in such circumstances challenging all further proceedings pursuant to Annexure A1 complaint. 4. Heard Sri. G. Priyadarsan Thampi, the learned counsel for the petitioner, Sri. R. Krishnakumar (Cherthala) for the 1[st] respondent and Smt.Seetha S., Senior Public Prosecutor for the State. 5. The main contention raised by the learned counsel for CRL.MC No.759 of 2016 5 the petitioner is that the averments in Annexure A1 complaint would not attract the offence under Section 500 of IPC. According to the learned counsel, the said statements were made in a counter affidavit filed before a court of law, which were intended to protect the interest of the parties to the suit, and therefore, it would fall under the exceptions contained in Section 499 IPC. It was also contended that it was only a general statement, and since several persons were attending the dinner and fellowship without invitation, under no circumstances the said statement could be treated as one made against the complainant, the 1[st] respondent herein. Therefore, the locus standi of the 1[st] respondent to submit a complaint was also challenged. The learned counsel places reliance upon the decision rendered in **Ramakrishnan v. Subbaramma Sastrigal [1986 IC 705], Sunil Kumar Reddy C. and Another v. State of Andhra Pradesh and Another [2022 KHC 3929] and Srinibash Ranjan Mishra and Ors. v. State of Jharkhand and Another [2016 KHC 4416]** rendered by Jharkhand High Court. 6. The learned counsel for the 1[st] respondent would oppose the said contention. According to him, the contentions raised by CRL.MC No.759 of 2016 6 the petitioner cannot be considered in a proceeding under section 482 Cr. PC. The questions raised are touching upon the exceptions to section 499 of IPC which can be decided only during the course of trial. The learned counsel also places reliance upon the decision rendered by this Court in **Raman Namboodiri v. Govindan [1962 KLT 538]** , the order passed in **Crl.M.C.No.534/2016** and the decision rendered by the Calcutta High Court in **Atul Kumar Pandey v. Kumar Avinash [MANU/WB/0557/2020]** . 7. I have carefully gone through the records. The basic contention raised by the learned counsel for the petitioner is that the offences alleged against the petitioner would not be attracted as the said statements were made by him before a court of law. As far as the question whether a statement made before a court of law by way of pleadings would attract the offence under section 499 r/w section 500 IPC or not is concerned, the same is already settled by various decisions rendered by the Hon’ble Supreme Court as well as this Court. As rightly pointed out by the learned counsel for the 1[st] respondent, in Crl.M.C No.534/2016, a learned Single Judge of this Court, after referring to the decision rendered by the Madras High Court in **Thangavelu Chettiyar v. Ponnammal [AIR 1966** CRL.MC No.759 of 2016 7 **Madras 363]** and the decision rendered by this Court in **Prabhakaran v. Gangadharan [2006(2) KLT 122]** has categorically held that, if the pleadings filed in a court containing defamatory statement, it amounts to publication. In the decision in ## **Varghese Cor Episcopa v. State of Kerala [2020(1)KHC 390]** also, it was held that the statement made in a counter affidavit filed in a writ petition before this Court may also attract the offence under section 499 IPC if it contains defamatory statement. Thus, the legal proposition is very clear as per which, merely because the statement happened to be made in a counter affidavit submitted before a court of law, that would not enable the accused to contend that the same is not a publication which attracts the offence under Section 499 r/w. Section 500 of IPC. As held in **Prabhakaran’s** case (supra), this Court has categorically held that if the pleadings filed in a court contain a defamatory statement, it amounts to publication. Thus, the contention raised by the learned counsel for the petitioner in this regard is only to be rejected. 8. The next aspect relates to the application of exception to section 499 IPC. It is true that, section 499 IPC contains ten CRL.MC No.759 of 2016 8 exceptions. However, the question whether the statement which is the subject matter of a complaint falls in any of the exceptions to section 499 IPC is a matter which cannot be decided in a proceeding under section 482 Cr.PC. To establish the ingredients of the exceptions provided in the said provision, an appreciation of the evidence is to be made. The same can only be done after examining the materials adduced by either party after the trial. In **Ramakrishnan’s** case (supra), which was relied on by the petitioner, of course, this Court has laid down the circumstances under which the exceptions have to be examined. However, the said decision has been taken in a Crl.RP, filed against the conviction of the accused therein after a full-fledged trial. 9. It is true that, in **Sunil Kumar Reddy’s** case (supra), the Andhra Pradesh High Court held that, unless there is specific averment in the complaint to the effect that other persons had read the contents of the counter affidavit, it cannot be concluded that, there was publication of the defamatory statement which is one of the essential ingredients for attracting the offence under section 499 of IPC. However, it is to be noted in this regard that the complainant in this case was a lawyer practicing at the CRL.MC No.759 of 2016 9 Cherthala Bar, and the suit was instituted in the very same Court. The pleadings alleged to have been contained were also filed in the said suit. Evidently, the copy of the said pleadings must have been served to the other parties to the proceedings. Therefore, the circumstances under which the observations made by the Andhra Pradesh High Court were completely different from that of the present case, particularly because he was a practising lawyer of the very same Bar. 10. The next contention raised by the learned counsel for the petitioner is to the effect that it was a general statement without specifically naming the 1[st] respondent. Therefore, under no circumstances, that could be treated as a statement aimed at the 1[st] respondent. However, the crucial aspect to be noticed in this regard is that the said statements were made in the counter affidavits submitted in two I.A.s, which contained the affidavits of the plaintiff, who is none other than the complainant. Evidently, it was in response to that averments, the statements were made, and therefore, the said pleadings cannot be read in isolation with the averments or prayers put forward in the respective interlocutory applications and the persons who sought the prayers CRL.MC No.759 of 2016 10 therein. Therefore, the prima facie view that can be adopted is that the said statements were made against the specific averments made in the affidavit filed by the plaintiff in support of his prayer, and therefore, under normal circumstances, it can only be aimed at the plaintiff. However, it is a matter to be finally decided by the trial court after considering the evidence to be adduced in this regard, and the said question cannot be decided at this juncture. 11. Thus, after carefully considering all the materials placed on record and hearing the contentions raised by both sides, I am of the view that the issues sought to be resolved in this Crl. M.C. are beyond the scope of a proceeding under section 482 Cr.PC as evidently these are the questions which can only be decided in a trial. Therefore, I do not find any scope for interference in the proceedings at this stage. Accordingly, this Crl.M.C. is dismissed. However, it is clarified that none of the observations made in this order were intended to decide any of the issues between the parties. On the other hand, it was only an attempt to find out whether any prima facie case is made out by the petitioner for CRL.MC No.759 of 2016 11 invoking the inherent power of this Court under section 482 Cr.PC. It is further clarified that all the contentions raised by the respective parties are left open, which shall be decided by the learned Magistrate, untrammelled by any of the observations made in this order. **Sd/ZIYAD RAHMAN A.A. JUDGE** pkk CRL.MC No.759 of 2016 12 ## `APPENDIX OF CRL.MC 759/2016` ``` PETITIONER‘S ANNEXURES ``` ``` ANNEXURE A-1: CERTIFIED COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT IN C.C 892/12 OF JFCM COURT-I, CHERTHALA ```