AI Structured Summary
Not yet generated for this judgment
Judgment
Swamidurai, J.—The above two criminal miscellaneous petitions have been filed by Mrs. M. Kalyanasundari and R. Srinivasan respectively,
the third accused and 1st accused in C.C. No. 15950 of 1983 on the file of the learned Chief Metropolitan Magistrate, Madras to quash the
proceedings u/s 482, Code of Criminal Procedure.
The first Respondent in Crl. M.P. No. 1426/84 and the sole Respondent in Crl. M.P. No. 2981/84 is Dr. A.K. Faziluddin who is the
complainant in the abovesaid calendar case. The second accused V.D. Muthu is the third Respondent in Crl. M.P. No. 1426/84. The complainant
Dr. A.K. Faziluddin in both the petitions has filed a private complaint u/s 499 read with Section 34 I.P.C. and 500 I.P.C. against accused 1 to 3.
The first accused is an advocate. The facts of the case are briefly stated as follows:
The complainant is a Dental Doctor by profession, having B.Sc., and B.D.S. Degrees and a respectable and prominent public man in Madras
City. He is a member of the Executive Committee of the Tamil Nadu Congress Committee (J) and also a prominent Executive Member in the Indo
Arab Friendship Association. He is also the Associated Editor of the English Weekly ""News Wind"" and also Commissioner of Oaths. He is the
younger son of (Late) Dr. M.A. Kareem, who was a popular public figure in his time and a prominent councillor of the Corporation of Madras for
more than 13 years. The complainant''s father is a freedom fighter. The elder brother of the complainant is Dr. A.K. Zainuddin and he is the
President of the Tamil Nadu Congress (J) Committee, president of Indo-Arab Friendship Association, Editor of the English Weekly ""News Wind
and also a prominent and popular public man and a social worker. So, the members of the family of (Late) Dr. M.A. Kareem and his sons
including the complainant, are respectable and popular citizens with a status and reputation in public and personal life.
The third accused Mrs. M. Kalyanasundari was the Respondent in a civil suit filed by Dr. A.K. Zainuddin on behalf of himself and the
complainant, which was pending before the learned First Assistant Judge, City Civil Court, Madras in O.S. 99/7. The second accused V.D. Muthu
is the husband of the third accused and he represented the third accused in the suit and gave evidence for his wife. The first accused was the
counsel for the accused 2 and 3 in O.S. No. 99/78. The first accused had shown a special interest more than the professional responsibility in the
case, as he was very much closer to the second and third accused for whom he appeared in various cases against the complainant and his brother
Dr. A.K. Zainuddin. On various occasions, the first accused has behaved in a provocative manner against the complainant with animosity and ill
feeling and unbecoming of a professional.
On 29-7-1983 at about 1.30 P.M. when the first accused was arguing on behalf of the second and third accused before the learned First
Assistant City Civil Judge, Madras, he showed to the learned Judge a letter said to have been sent by a lawyer on behalf of his client to Late
Advocate B who represented Dr. M.A. Kareem on 17-5-1972 which letter was marked earlier as Ex.R.42 (Document No. 10) through the
second accused in the case and the first accused looked at contemptuously expressing his feeling of personal animosity towards the complainant
and his brother and without any relevancy to the issue, he read the following wordings from the letter:
At first thought my client doubted whether the disease for which your client (referring to Dr. M.A. Kareem) is treating lunatic patient is contagious
and that his first letter was as a result of the said contagion and did not intend to send a reply thereto.
Again the first accused looked at the complainant contemptuously and with an informative and suggestive look around the assembled lawyers and
other public as if he was reading the extract from the letter for the sake of information to the assembled gathering in the court. He was also
contemptuously laughing at with a sarcastic and ironical accent reading the extracts which irrevocably suggested his personal malice towards the
complainant and his family and his intention with knowledge that he wanted to defame the complainant and his family, particularly Dr. A.K.
Zainuddin and lower their status in the eyes of the public and Lawyers. Many lawyers were present in court in addition to the members of the staff
and public. The extract which the first accused read out in open court was per se defamatory and derogatory in contents and the first accused
thereby intended to harm the reputation of the complainant and his family including his deceased reputed father. Learned First Assistant Judge
himself objected to the reading of the extract by the first accused and he dismissed the argument on the point of the extract as irrelevant and
professionally unethical. He also warned the first accused for indulging in such unprofessional conduct by a lawyer. The first accused had also read
out the extract which is per se defamatory with intent to defame the complainant and his family also to satisfy the second and third accused for
whom he appeared as a counsel and at their instigation, he read out the same. The second accused was laughing as if he heard a joke when the
defamatory extract was read by the first accused. At about 2.30 p.m. on the same day, when the complainant was walking towards the coffee
shop at Nethaji Subhas Chandra Bose Road outside the compound of the High Court Buildings, he happened to meet the first accused on the
pavement in front of the office of the Bar Council, and the complainant peacefully asked him as to why he took so much interest in reading the
defamatory extract from the letter and the first accused without any (Sic)gret for his action, retorted by saying
The first accused was loudly saying such defamatory words in the presence of many passers by and the friends of the complainant. Therefore, all
the accused have committed offence under the above provisions of law.
The complainant has also cited twelve witnesses in the complaint. These two Criminal Miscellaneous petitions are filed for quashing the above
said complaint. Learned Chief Metropolitan Magistrate, Madras has taken the complaint on file u/s 499, read with 34 and 500, I.P.C.
Both the Petitioners in the above two Criminal Miscellaneous petitions have contended that they have not committed any offence and that the
complaint is barred by limitation since the defamatory notice is dated 17-5-1972 and the complaint is filed only in December, 1983 nearly 11 years
after the notice. In the entire complaint, there is no mention that the complainant was present in court on the date in question. The accused were not
responsible for the notice dated 17-5-1972 and that the complainant''s father Dr. M.A. Kareem has not taken any action during his life time against
the advocate or his clients who caused the notice to be sent and there is no allegation that the complainant knew about the contents or read the
contents in the court. The impugned notice was already exhibited in civil proceedings and if the allegation was defamatory, because it must be a
false one then the offences are said to have been committed in relation to the proceedings in the court and a special complaint u/s 195 Code of
Criminal Procedure is necessary before taking cognizance of that case. It is submitted that the lawyer who filed the document had argued the case
as a legal duty to do so on behalf of his client and that he was privileged in his conduct and no prosecution was maintainable against him. Even a
reading of the entire complaint does not disclose any offence against the Petitioners. The third accused being a woman who normally would not
come out of the house, was deliberately and maliciously dragged before the criminal court due to long standing civil disputes over the property and
to cause hardship to her. The first accused has made a specific plea that the notice was sent by the advocate ''A'' and that the first accused was not
responsible for it. No action was taken by Late Dr. M.A. Kareem in respect of that notice dated 17-5-1972. The first accused has read out the
notices dated 17-5-1972 as per the instructions from his clients and in good faith and he had no malice against the complainant or his father. The
first accused submitted that under Exception 9 of Section 499 Code of Criminal Procedure it is not a defamation to make an imputation on the
character of a witness in good faith and for the protection of the client. Both the Petitioners contended that the criminal proceedings is abuse of
process of court and vindictive and therefore, the criminal proceedings are liable to be quashed.
Learned Counsel for the first accused Mr. N.T. Vanamamalai, the Senior Advocate contended that the first accused is a lawyer and that he was
instructed by the client to read out the contents of the notice in the court and that as a professional, he had done the duty and nothing else and he
had no malice against the complainant either to defame his late father and the family of the complainant and himself. Learned Counsel for the first
accused submitted that as per Explanation 1 to Section 499 I.P.C., the first accused cannot be said to have committed any offence. Section 499
I.P.C. reads as follows:
499, Defamation: Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any
imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such
person, is said, except in cases hereinafter excepted, to defame that person
Explanation 1 to Section 499, I.P.C. reads as follows:
It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is
intended to be hurtful to the feelings of his family or other near relatives.
Therefore, according to the learned Counsel, Late Dr. M.A. Kareem had not filed any proceedings or complaint before any court against the
alleged defamatory statement contained in the impugned notice. Further, the notice was sent in the year 1972. The complaint was preferred in
1983, nearly after eleven years. There is no averment in the complaint that the deceased late Dr. M.A. Kareem had taken any action against
Kuppammal who was responsible for causing the notice to be sent through her lawyer ''A'' now dead. The Advocate ''B'' of Late Dr. M.A.
Kareem who had received notice from later Advocate ''A'' is also now dead. Therefore, the advocate ''A'' who sent the notice and the advocate
''B'' who received the notice on behalf of late Dr. M.A. Kareem and Dr. M.A. Kareem himself are all dead now. The impugned notice was
already marked as Ex.R-42 in the previous proceedings between Dr. M.A. Kareem and the 2nd accused. Therefore this was once exhibited in
open court as a document in the suit. Late Dr. M.A. Kareem possibly did not want to proceed against 2nd accused or Kuppammal and her
advocate ""A"" who sent the notice with the alleged defamatory contents. This notice is now sought to be exhibited in the subsequent civil
proceedings pending before the learned first Assistant City Civil Judge, Madras. The complainant took objection to the reading out of the contents
of the notice. But, if the notice had to be marked as a document in civil proceedings, the first accused who is an advocate in charge of the second
litigation pending before the court of the learned first Assistant City Civil Judge, Madras had no other option but to mark the sale in the interest of
his clients who are accused 2 and 3. This cannot be prevented because the impugned notice contains some defamatory allegation, according to the
complainant. That notice might be relevant and material for the just decision of the second litigation. Once the document is to be exhibited, naturally
it had to be read before the presiding officer in charge of that case and also before the learned Counsel appearing for the complainant.
Mr. N.T. Vanamamalai, learned Senior Counsel relied upon a decision reported in Mir Anwaruddin v. Coelho 125 L.W. 295 : 1927 M.W.N.
164 . This lays down a proposition that when a lawyer is acting in the course of his professional duties and is thus compelled, subject to the
disciplinary action of the court, to put forward everything which may assist his client good faith is to be presumed, and had faith is not to be
assumed merely because the statement is prima facie defamatory. There must be some independent allegation and proof of private malice from
which in the circumstances of the case, the court considers itself justified in inferring that the occasion was only seized as an opportunity to vent
private malice. Even the presence of malice will not override the presumption of good faith where the statement made was obviously necessary in
the interests of the client, and where the lawyer could not omit to make it without gravely imperiling the interests of his client and would in fact not
be discharging his duty to his client unless he made it. Even though some private malice is gratified by the publication of the statement, if such
publication was imperatively called for in the interests of his duty to his client the presence of such malice will not negative the presumption of good
faith.
Learned Counsel Mr. N.T. Vanamamalai, Senior Advocate for the first accused also brought to my notice the judgment reported in Bashyam
Ayyangar v. Andal Ammal 1934 M.W.N. 481 where it has been held that where a pleader is charged with the offence of defamation punishable
u/s 500 I.P.C. in that he unnecessarily in cross-examination put to the complainant, who was a witness in a criminal case certain questions which
imputed immoral character and there is no allegation, and much less proof, that the pleader in putting the questions was actuated by any motive of
private malice and was not acting in the interests of his clients, the pleader is entitled to the benefit of Exception IX to Section 499, I.P.C. and the
charge which imputes no ill faith but merely refers to the questions as having been put unnecessarily cannot stand and that therefore, the entire
proceedings against the pleader ought to be quashed. Mr. N.T. Vanamamalai, Senior Advocate relied upon the decision reported in Miss. Violet
Watshare v. Miss. Maurche Proud 1970 L.W. Crl. 4 . In that case, the defamatory matter was published by the accused. It was observed that
mere communication of defamatory matter merely to the person defamed is not publication within the meaning of Section 499 I.P.C. In other
words, the defamatory matter must be published, that is communicated, some person other than the person concerned to whom it is addressed.
The word ''publish'' in Section 499 I.P.C. is used in its etymological sense as connoting ''to make public'' or to make known to people in general.
Since ''publication'' implies communication to the public or the people, it follows that it is not publication if the libeller merely communicates his libel
to the person defamed. Such communications may amount to an insult and be punishable as such, but it is not publication for which he could be
held liable u/s 499 I.P.C. Further, publication to constitute defamation should be made with the intention to defame some person. Explanation 4 to
Section 499, I.P.C. states that no imputation is said to harm a person''s reputation, unless that imputation directly or indirectly in the estimation of
others, lowers the moral or intellectual character of that person or lowers the character of that person in respect of his caste or of his calling, or
lowers the credit of that person, or causes it to be believed that the body of that person is in loathsome state, or in state generally considered as
disgraceful. The word ''harm'' used here relates to imputations on a man''s character made and expressed to others: so as to lower him in then
estimation and anything which lowers him merely in his own estimation certainly does not constitute defamation.
Here, the first accused is stated to have published or made known to the public in general about the defamatory contents as found in the
impugned notice. It is not the first accused who had made the alleged defamatory statement in the impugned notice. The notice is said to have been
issued on the instructions of the client Kuppammal through her advocate ''A'' who is now dead. Therefore, whether that notice itself was issued at
the instance of Kuppammal is not known. The author of that notice, advocate ''A'' is now dead and therefore, it cannot be proved even in court in
this criminal proceedings whether that notice was issued at all with the instructions of Kuppammal since that advocate ''A'' is no more. Further, the
first accused in this case has only read out the contents in open court and nothing else. The notice contained defamatory matters besides other
points and therefore, the lawyer had to read out the entire contents in the interest of his clients. The first accused could not read a portion and
refuse to read the other portion of the notice. It is attempted to be marked in the present litigation even though this notice has already been marked
as Ex.R-42 and therefore late Dr. M.A. Kareem did not take any action at the time when it was exhibited in open court.
Learned Counsel Mr. N.T. Vanamamalai, Senior Advocate pointed out Explanation 1 to Section 499 I.P.C. According to him this is not to
defame late Dr. M.A. Kareem who if he had been really defamed, would have taken action against Kuppammal and also against the later
Advocate ''A'' who issued the notice. Therefore, according to the learned Counsel for the first accused, the imputation if any, had not harmed the
reputation of the person late Dr. M.A. Kareem while he was alive and therefore, he did not pursue the matter. The said notice was also not
intended to be hurtful to the feelings of Dr. M.A. Kareem. Mr. N.T. Vanamamalai, Senior Advocate also relied upon a decision reported in Arjuna
Pathar v. Muthiah 1971 L.W. Crl. 57 for the proposition that when a lawyer is acting in the course of his professional duties and is thus compelled
subject to the disciplinary action of the court to put forward everything which may assist his client, good faith is to be presumed and bad faith is not
to be assumed merely because the statement is prima facie defamatory.
Mr. David Thyagarajan, learned Counsel for the complainant submitted that the petitions for quashing the proceedings u/s 482, Code of
Criminal Procedure are not maintainable as according to him, there is a prima facie case on a mere reading of the complaint that a case has been
made out u/s 499 read with 34 and 500, I.P.C. It is also submitted by him that this Court will not scrutinise the evidentiary value of the complaint
and it would mean prejudging the issue. He relied on a decision reported in Dr. Radhanath Rath and Others Vs. Balakrishna Swain, The ratio
decided in that case is that the inherent jurisdiction of the High Court u/s 482, Code of Criminal Procedure to quash a criminal proceeding is to be
exercised in a proper case to prevent an abuse of process of the court or to secure the ends of justice. The criminal proceedings instituted against
an accused person shall ordinarily be proceeded with in accordance with law. But however the allegations made in the first information report or in
the complaint, even on their face value and if accepted in their entirety, do not constitute an offence or the impugned order clearly brings about a
situation which is an abuse of the process of the court or for the purpose of securing the ends of justice, if interference by the High Court is
absolutely necessary, the High Court may exercise its power u/s 482 Code of Criminal Procedure. As the Magistrate at the stage of taking
cognizance is restricted to finding out whether there is a prima facie case or not for proceeding against the accused person, the High Court is not to
enter into detailed discussion regarding the factual aspects and should not launch on a meticulous examination of the case on merits and set aside
the order of the Magistrate, taking cognizance and directing issue of process against some accused persons. Whether there are sufficient materials
to hold a person guilty of the offence is to be decided at the stage of trial and not while finding out as to whether there are materials to take
cognizance and proceed against the accused. Thus, where the allegations made against the Petitioners to constitute the offences punishable under
Sections 500 and 34 I.P.C. for which cognizance has been taken by the Sub-Divisional Judicial Magistrate and the trial has not been taken up and
evidence has not been led, the High Court declined to interfere at such stage under its inherent jurisdiction. Learned Judge of the Orissa High Court
referred to certain judgments of the Supreme Court in this judgment.
In the instant case, the advocate who issued the notice which according to the complainant contained defamatory matters, is now dead and it
cannot now be found out whether the said advocate had got instructions from his client Kuppammal to issue such notice. Kuppammal is not an
accused in the present complaint. Therefore, in the absence of evidence due to demise of the learned Advocate ''A'' it is fatal to the prosecution if
the proceedings are allowed to continue in the lower court. According to me, it would be an abuse of process of the court if the trial is allowed to
be proceeded with or alternatively may turn out to be vexatious proceedings since it may not be possible for the complainant to prove the contents
of the notice, the author of which, namely, Advocate ''A'' is now dead. The first accused also had to read the notice in open court since it was
already exhibited as Ex.R-42 in a previous litigation and he cannot read out the contents of the notice in a truncated form. Even the Late Dr. M.A.
Kareem had not taken any action when the notice had been issued in 1972. At this distance of time i.e. after 11 years, the complainant wants to
vindicate justice. Even though there is no limitation for instituting the complaint, yet, it is very belated. Learned Counsel for the complainant Mr.
David Thiayagarajan submitted that these two criminal miscellaneous petitions are not maintainable u/s 482 Code of Criminal Procedure in view of
the judgment reported in Dr. Radhanath Rath and Others Vs. Balakrishna Swain,
According to me, there is no use of permitting the complainant to prosecute this case, since ultimately there is no chance of any success in the
complaint. It will be futile for the complainant to prosecute these accused. It would amount to allowing vexatious proceedings to be proceeded
with and it will be an abuse of process of the court.
''15. In the decision reported in Vinod Kumar Sethi and Others Vs. State of Punjab and Another, a full Bench of the Punjab and Haryana High
Court had an occasion to discuss the power of the High Court under inherent jurisdiction in the matter of quashing the first information report u/s
482, Code of Criminal Procedure. Their Lordships of the Punjab and Haryana High Court, relied upon a judgment of the Supreme Court reported
in State of Karnataka Vs. L. Muniswamy and Others, The four tests summarised in the above decision are as follows:
(i) When the first information report, even if accepted as to be, discloses no reasonable suspicion of the commission of a cognizable offence:
(ii) when the materials subsequently collected in the course of an investigation further disclose no such cognizable offence at all:
(iii) When the continuation of such investigation would amount to an abuse of power by the police thus necessitating interference in the ends of
justice: and
(iv) that even if the first information report or its subsequent investigation purports to raise a suspicion of a cognizable offence, the High Court can
still quash if it is convinced that the power of investigation has been exercised mala fide
Their Lordships of the Supreme Court in the decision State of Karnataka Vs. L. Muniswamy and Others, ) observed as follows:
In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding
to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. The saving
of the High Court''s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court
proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a
lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in
quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered
according to law made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object
and purpose of the provision which seeks to save the inherent power of the High Court to do justice between the State and its subjects, it would
be impossible to appreciate the width and contours of that client jurisdiction....
... Considerations justifying the exercise of inherent powers for securing the ends of justice naturally vary from case to case and a jurisdiction as
wholesome as the one conferred by Section 482 ought not to be encased within the straitjacket of a rigid formula.
In view of the above discussion I hold that the 1st accused has discharged his proper personal duty bonafide and the accused 2 and 3 had
nothing to say in this matter and the continuation of the criminal proceeding would be an abuse of process of the Court, I am of the view that the
complainant cannot be permitted to pursue this prosecution and that ends of justice require that the proceedings are to be quashed and these
petitions are maintainable u/s 482, Code of Criminal Procedure.
Accordingly, the proceedings in C.C. No. 15950/83 on the file of the Chief Metropolitan Magistrate, Madras are hereby quashed and the criminal
miscellaneous petitions are allowed. However, it is not open to the accused to pursue against the complainant for having filed this complaint in the
lower court in any manner.