Kerala High Court
Sahajan K.N vs Adimaly Bar Association on 12 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
WEDNESDAY, THE 12TH DAY OF JANUARY 2022 / 22ND POUSHA, 1943
CRL.MC NO. 1671 OF 2020
AGAINST ST 405/2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,
ADIMALY
PETITIONER/ACCUSED:
SAHAJAN K.N.
AGED 52 YEARS
S/O NARAYANAN, KADAYATH VEEDU, ADIMALY KARA,
MANNAMKANDAM VILLAGE, ADIMALY P.O., PIN-685 561,
NOW WORKING AS SECRETARY, ADIMALY GRAMA PANCHAYAT.
BY ADVS.
THOMAS M.JACOB
SRI.AKHIL K.MADHAV
RESPONDENTS/STATE AND COMPLAINANT:
1 ADIMALY BAR ASSOCIATION
ADIMALY P.O.IDUKKI DISTRICT, KERALA,
PIN-685 561, REPRESENTED BY ITS PRESIDENT.
2 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
BY ADV.
SRI.ARVIND V. MATHEW - PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
20.12.2021, THE COURT ON 12.01.2022 PASSED THE FOLLOWING:
CRL.MC NO. 1671 OF 2020
2
ORDER
The petitioner is the accused in ST No.405/2019 on the file of the Judicial First Class Magistrate Court, Adimaly. The aforesaid case is registered on the basis of Annexure A9 private complaint submitted by the 1st respondent herein. The offence alleged against the petitioner is under Section 500 of Indian Penal Code.
2. The facts leading to the registration of the said case are as follows: The petitioner is the Secretary of Adimaly Grama Panchayath. The first respondent is Adimaly Bar Association representing Lawyers practicing in various courts in Adimaly. The 1 st respondent Association is in possession of a building in the court premises which is intended for use of its members. The aforesaid building was apparently constructed by the Government and the exclusive possession thereof was provided to the 1 st respondent Association and its members. On 17.10.2018, the petitioner herein issued a notice demanding property tax in respect of building which is occupied by the 1st respondent Association. As the name of the owner of the building as entered into the register of the Panchayath was CRL.MC NO. 1671 OF 2020 3 Executive Engineer, Bar Association, Annexure A1 notice was issued in that name. The amount assessed was Rs.11,527/- pertaining to the assessment years 2013 to 2019. There was no response from the 1 st respondent to Annexure A1.
3. Subsequently, on scrutiny of the records it came to the notice of the petitioner that the aforesaid building was wrongly linked with the old number of the another building which was a Police quarters. Immediately upon realizing the said mistake, a further communication was issued addressing to the President/Secretary, Bar Association, Adimaly on 31.01.2019. In the aforesaid notice it was specifically mentioned that the earlier notice was sent, as the existing building number of the said building was wrongly linked with old number of another building. In the aforesaid communication the 1 st respondent was also informed that the Panchayath does not have any details as to the construction of the building which is occupied by the Bar Association and since the details of permit, plan etc are absolutely necessary for making an assessment of the same for property tax, the 1st respondent Association was required to furnish those details. CRL.MC NO. 1671 OF 2020 4 However, there was no response from the part of the 1st respondent in connection with the same. Later on 05.03.2019 the petitioner issued a communication to the Junior Superintendent, Judicial First Class Magistrate Court, Adimaly seeking the aforesaid details. As per Annexure A4 communication dated 06.03.2019, Annexure A3 notice was forwarded by the Judicial First Class Magistrate, Adimaly to the 1st respondent Association for taking necessary action. As there was no response, the petitioner issued Annexure A5 communication dated 19.03.2019 to the Registrar of High Court of Kerala informing that the aforesaid details are not being furnished by the 1 st respondent Association despite repeated notice and requested for interference from the part of the Registrar of the High Court of Kerala in the matter for completing the process of taxation.
4. Subsequently, Annexure A6 notice dated 08.04.2019 was issued by the 1st respondent to the petitioner herein. In the said notice it was informed that the aforesaid building is belonging to the Government and the 1st respondent is only an occupier. The aforesaid building was renovated by Pubilc Works Department, using the funds CRL.MC NO. 1671 OF 2020 5 of Member of parliament. It was pointed out that the said building is used for conducting Adalaths and Camp Sitting of Family Court, MACT, etc.
5. Upon receipt of Annexure A6 the petitioner issued Annexure A7 communication addressed to the Judicial First Class Magistrate Court, Adimaly for furnishing the details of utilization of funds of Member of Parliament for construction of the same. In response to the same, the petitioner received Annexure A8 communication dated 15.05.2019, wherein it was informed that reconstruction of Bar Association, Adimaly was completed by using MPLADS fund with the no objection received from the High Court of Kerala.
6. While so, Annexure A9 compliant was submitted by the 1 st respondent before the Judicial First Class Magistrate Court, Adimaly alleging offences under Sections 499 and 500 of Indian Penal Code. The main allegations raised in the aforesaid complaint were two fold. Firstly, it was alleged that the petitioner had issued communication to the Registrar of High court of Kerala dated 19.03.2019, informing that CRL.MC NO. 1671 OF 2020 6 even though several demand notices were issued for collection of tax, they have not remitted the tax. Secondly, it was contended that the petitioner had made a publication by way of a post in a social media namely Facebook on 31.03.2019 at 10.29 p.m. stating that "Out of 38.58 lakhs 38.49 lakhs were collected. Bar Association alone is in arrears." It was alleged in the said complaint that the aforesaid post was published by the petitioner with the intention to defame the 1st respondent Bar Association and its members before the society at large. As per Annexure A11, the learned Magistrate took cognizance of the said offence under Section 500 of Indian Penal Code and summons was issued to the petitioner herein. This Crl.M.C is filed seeking to quash the aforesaid proceedings.
7. Heard Sri.Thomas M. Jacob, learned counsel for the petitioner and Sri.Aravind V. Mathew, learned Public Prosecutor for the State. Even though notice was served to the 1st respondent, there is no appearance for them so far.
8. Learned counsel for the petitioner contends that, the publication made by the petitioner would not attract the offence under CRL.MC NO. 1671 OF 2020 7 Section 499 read with Section 500 in view of the fact that, the same does not indicate the identification of any collection of persons, as explained under Explanation 2 to Section 499 of IPC. As regard to the communication made to the High Court of Kerala, it was pointed out that, the same was issued by the petitioner in discharge of his duties, which is protected as per Section 250 of Kerala Panchayath Raj Act. In such circumstances, he prays for quashing of the entire proceedings against him.
9. It is contended by the learned Public Prosecutor, by referring to Annexure A2 communication that, there was no assessment pending as against the 1st respondent herein. It was also pointed out that, even before getting any reply from the 1 st respondent to Annexure A3 notice, the petitioner published a Facebook post on 31.03.2019, which contain the defamatory statements against the Bar Association. In such circumstances, he seeks for dismissal of the above Crl.M.C.
10. One of the allegations raised by the 1 st respondent against the petitioner herein is that, he has issued a communication on CRL.MC NO. 1671 OF 2020 8 19.03.2019 to the Registrar, High Court of Kerala informing that, despite issuance of demand notice for tax to the Bar Association, the tax was not paid. Annexure A3 is the said communication. In the said letter, no statement as alleged in the complaint is seen made. What is conveyed in Annexure A3 to the Registrar, High Court of Kerala was that despite repeated notice to the 1st respondent Association requiring them, to furnish the details of the construction made in the aforesaid property, it was not furnished by them. It was pointed out that, the the failure of the Bar Association in furnishing the said details, is resulting in nonpayment of tax. In such circumstances, interference of the Registrar was sought for. As regard to the aforesaid communication, the contention of the learned counsel for the petitioner is that the same is protected as per Section 250 of Kerala Panchayath Raj Act, 1994. The aforesaid provision reads as follows:
"250. Protection of Acts done in good faith. -- No suit, prosecution or other legal proceedings shall lie against the President, Vice-President, any member, Secretary, any officer or employee of a Panchayat for anything which is in good faith done or purported or intended to be done in pursuance of this Act or any rule or bye-law made thereunder."
11. As per the aforesaid provision, no prosecution shall lie CRL.MC NO. 1671 OF 2020 9 against the President, Vice President, any member, Secretary or any officer or any employee of the Panchayath for anything done in good faith or intended to be done in pursuance of this Act or Rule or bye- law made thereunder. In this case it is evident from the communications issued by him that the attempt of the petitioner was to collect the taxes which were actually due to the Panchayath. Therefore, it cannot be treated as an act without any good faith. In such circumstances, he is entitled for protection as contemplated under Section 250 of the Act. Therefore, the allegation with regard to the issuance of communication by the petitioner herein to the Registrar of the High Court of Kerala cannot result in a prosecution under Section 499 of Cr.P.C.
12. Another allegation is relating to Annexure A10 post which he made in the social media; Facebook. A careful reading of the contents of the aforesaid post would reveal that, the same does not indicate the name of the Association specifically. It only mentions the arrears of Bar Association. There are several Bar Associations throughout the country and there is nothing to indicate in the said post CRL.MC NO. 1671 OF 2020 10 to identify a particular Bar Association. It is true that, at the relevant time, the petitioner was working as Secretary in Adimaly Grama Panchayath and there is only one Bar Association in Adimaly. However, in Annexure A10, the designation of the petitioner is not there. In such circumstances, I am of the view that, the description contained in Annexure A10 is not very definite so as to identify the Bar Association particularly. The offence of defamation is defined under Section 499 of Indian Penal Code which 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 persons intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person."
Explanation 1: xxxxxxx Explanation 2:.- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3: xxxxxxx Explanation 4. 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 body of that CRL.MC NO. 1671 OF 2020 11 person is in a loathsome state, or in a state generally considered as disgraceful"
As per Section 499, the offence will be attracted on publication of imputation concerning any person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person. In Explanation 2 to the said provision, it is provided that an imputation concerning a company or an association or collection of person will also attract the offence of defamation. As per Section 199 of Cr.P.C., the court can take cognizance of an offence under Chapter XXI of Indian Penal Code wherein Section 499 comes in, except upon a complaint made by some person aggrieved by the offence. Thus a joint reading of the aforesaid provisions would clearly indicate that, an imputation made in respect of a collection of persons with the intention to harm the reputation of such collection of persons, would attract the offence of defamtion. In such circumstances, any of the members of such collection of persons can file a complaint for prosecution of offences under Section 499 of Indian Penal Code. In this case, the crucial question that arises is as to whether the contents of the post which is the subject matter of this case specifically CRL.MC NO. 1671 OF 2020 12 contains the details of such collection of persons, so as to identify them precisely. The aforesaid question was a subject matter in several judgments, some of which were cited by the learned counsel for the petitioner.
13. In G.Narasimhan and others v. T.V. Chokkappa AIR [1972 SC 2609], the hon'ble Supreme Court considered the said question and observed in paragraph 13 and 14 in the manner as follows:
"13. On these contentions, the principal question for determination is whether the respondent could be said to be an aggrieved person entitled to maintain the complaint within the meaning of Section 198 of the Code. That section lays down that no magistrate shall take cognizance of an offence falling inter alia under Ch. XXI of the Penal code (that is, Ss. 499 to 508) except upon a complaint made by some persons aggrieved of such offence. Section 198, thus, lays down an exception to the general rule that a complaint can be filed by anybody whether he is an aggrieved persons or not, and modifies that rule by permitting only an aggrieved person to move a magistrate in cases of defamation. The section is mandatory, so that if a magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not an aggrieved person, the trial and conviction of an accused in such a case by the Magistrate would be void and illegal.
14. Prima facie, therefore, if S. 198 of the Code were to be noticed by itself, the complaint in the present case would be unsustainable, since the news item in question did not mention the respondent nor did it contain any defamatory imputation against him individually. Section 499 of the Penal Code, CRL.MC NO. 1671 OF 2020 13 which defines defamation, lays down that whoever by words, either spoken or intended to be read or by signs etc. makes or publishes any imputation concerning any person, intending to harm or knowing or having reason to believe that the imputation will harm the reputation of such person, is said to defame that person. This part of the section makes defamation in respect of an individual an offence. But Explanation (2) to the section lays down the rule that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. A defamatory imputation against a collection of persons thus falls within the definition of defamation. The language of the Explanation is wide, and therefore, besides a company or an association, any collection of persons would be covered by it. But such a collection of persons must be an identifiable body so that it is possible to say with definiteness that a group of particular persons, as distinguished from the rest of the community, was defamed. Therefore, in a case where explanation (2) is resorted to, the identity of the company or the association or the collection of persons must be established so as to be relatable to the defamatory words or imputations. Where a writing inveighs against mankind in a general, or against a particular order of men, e.g. men of gown, it is no libel. It must descend to particulars and individuals to make it a libel. 1699 3 Balk 224, cited in Ratanlal and Dhirajlal, Law of Crimes (22nd ed.) 1317. In England also, criminal proceedings would lie in the case of libel against a class provided such a class is not indefinite, e.g., men of science, but a definite one, such as, the clergy of the diocese of Durham, the justices of the peace for the county of Middlesex. (See Kenny's Outlines of Criminal Law 19th ed. 235). If a well-defined class is defamed, every person of that class can file a complaint even if the defamatory imputation in question does not mention him by name."
This Court in KM Mathew and Others v. Balan [1984 Madras Law Journal page 663] it was observed in paragraph 25 and 26 as follows:
"25. The principles that emerge from the decisions appear to be the following : As a general rule, a CRL.MC NO. 1671 OF 2020 14 complaint can be filed by anybody, whether he is an aggrieved person or not. Section 199, Crl. P.C. engrafts an exception to that general rule. In relation to offences covered by Sections 499 to 502 occurring in Chap. XXI of the I.P.C., only an aggrieved person can move the Magistrate. The section is mandatory. If a complaint is filed by one who is not an aggrieved person, the trial and conviction would be void.
26. Under Section 499, read along with Explanation 2, a defamatory imputation against a collection of persons would fall within the definition of defamation. The language of the 'Explanation' is no doubt wide. Nevertheless, the collection of the persons must be an identifiable body so that it is possible to say with definiteness that the particular group of persons, as distinguished from the rest of the community, was defamed. The identity of the collection of persons must be established as relatable to the defamatory words or imputations. (See paras 13 and 14 of the judgment in Narasimhan's case. A.I.R. 1972 S.C.2609, :(1972)2 S.C.J. 596, supra). Only a definite body would amount to a 'collection of persons' referred to in Section 499, I.P.C., read with Explanation 2 thereto."
14. In Asha Parekh and Others v. The State of Bihar [1977 Cri L J 21] a similar view was taken by Patna High Court. Recently, in Shine George v. State of Kerala [ILR 2018(2)Ker. 1032] it is observed as follows:
"18. In Ananda Bazar Patrika (P) Ltd. and Another. v. State of West Bengal and Another, 2005 KHC 2535:2005 CrlLJ 1126, it is held that the words or imputation complained of must relate to some particular person or persons whose identity can be established. It is alleged in the petition of complainant that the alleged defamation have been made against the lawyer of the courts as a class which cannot constitute an offence against a collection of persons who can be defamed by the operation of Explanation 2 of S. 499 of IPC. It is further CRL.MC NO. 1671 OF 2020 15 held that the complainant must be said to be an aggrieved person within the meaning of S. 199 of Cr.P.C.
19. xxxxxxx
20. xxxxxxx
21. xxxxxxx
22. In G. Narasimhan & others v. T.V. Chokkappa (supra), the Apex Court has sufficiently illumined the path resorted to the legal action. S.199 Cr.P.C engrafts an exception to the general rule. In relation to offences covered by S. 499 to 502 IPC occurring chapter XXI of IPC only an aggrieved person can move the Magistrate.
This Section is mandatory. If a complaint is filed by one who is not an aggrieved person, it is not maintainable. Under S. 499 read with Explanation 2, a defamatory imputation against a collection of persons would fall within the definition of defamation. The language of the 'explanation' is not doubt wide. Nevertheless, the collection of the persons must be an identifiable body so that it is possible to say with definiteness that the particular group of persons, as distinguished from the rest of community, was defamed. The identity of the collection of persons must be established as relatable to the defamatory words or imputations."
In the light of the aforesaid principles it is a settled proposition that unless the imputation is made against collection of a specific and identifiable body so that it is possible to say with definiteness that particular group of person as distinguished from the rest of the community. The identity of collection of persons must be specifically revealed through the said publications. When the aforesaid principles are made applicable in the present case, the following aspects are to be noticed. CRL.MC NO. 1671 OF 2020 16 The alleged imputation is made in a social media platform namely Facebook which is accessible to persons anywhere over the world. The same is not limited within the local area of Adimaly Grama Panchayath alone. The statement does not contain name of the Association, but only mentioned as Bar Association alone. Considering the reach of Facebook platform, mere mentioning of the word 'Bar Association' is not sufficient to identify it as a definite collection of individuals, specifically pointing out to the 1 st respondent association. There are several Bar Associations and the absence of any specific reference to the 1st respondent association is very crucial.
15. Apart from the above, the statement only informs that Bar Association is in arrears. The details as to what is in arrears are also not there. In such circumstances, it is a very vague statement and it cannot be treated as an imputation attracting a proceeding under Section 499 of Indian Penal Code. It is also a fact that, at the time of making the publication, which was on 31.03.2019, the petitioner was not in receipt of any explanation from the 1 st respondent herein in response to the repeated communications issued by the petitioner CRL.MC NO. 1671 OF 2020 17 herein. It is to be noted in this regard that, Annexure A2 communication by which the details of construction were sought for by the petitioner through a communication specifically addressed to the 1st respondent herein was submitted on 31.01.2019. Annexure A3 notice which was issued to the Junior Superintendent, Judicial First Class Magistrate Court, Adimaly seeking the aforesaid details was on 05.03.2019. It is evident from Annexure A4 that Annexure A3 communication was immediately forwarded to the 1 st respondent by Judicial First Class Magistrate Court requiring them to take further action. But the 1st respondent Association had sent the reply only on 08.04.2019 which is after publication of Annexure A10 Facebook post on 31.03.2019. Thus it is evident that, as on the date of publication, there was no explanation furnished before the petitioner by the 1 st respondent Association. In such circumstances, the statement made by the petitioner in Facebook, cannot be treated as an incorrect statement intended to defame any class of persons.
16. Thus considering the totality of the facts and circumstances of the case, I am of the view that the necessary CRL.MC NO. 1671 OF 2020 18 ingredients for attracting offence under Section 499 of Indian Penal Code are lacking in this case. Mere mentioning of name Bar Association by itself is not sufficient to arrive at the conclusion that, the same was intended to make any imputation against the 1 st respondent Association, justifying prosecution for the offence under Section 499 of Indian Penal code. In such circumstances, I am inclined to hold that, this is a fit case in which the powers of this Court under Section 482 Cr.P.C. can be invoked as the proceedings pursuant to Annexure A9 complaint is an abuse of process of law. However, it is made clear that, these observations are not intended to provide any sanctity or proprietary to the posts made by the public servant in Social media platforms. The observations made by me are only in relation to the consideration of the question whether the publication attracts the offence of defamation or not, and not beyond that. These observations would not come to the rescue of the petitioner, in case any other proceedings, as to the proprietary of such posts, are initiated against the petitioner herein.
Accordingly, this Crl.M.C. is allowed and all further CRL.MC NO. 1671 OF 2020 19 proceedings in S.T. No.405/2019 on the files of the Judicial First Class Magistrate Court, Adimaly are hereby quashed.
Sd/-
ZIYAD RAHMAN A.A. JUDGE scs CRL.MC NO. 1671 OF 2020 20 APPENDIX OF CRL.MC 1671/2020 PETITIONER ANNEXURES ANNEXURE A1 THE COPY OF DEMAND NOTICE DATED 17.10.2018 FOR PROPERTY TAX ARREARS OF ADIMALY BAR ASSOCIATION BUILDING ANNEXURE A2 TRUE COPY OF NOTICE NO A7-4276/2018 DATED 31.1.2019 FROM THE PANCHAYAT TO THE BAR ASSOCIATION SEEKING DETAILS OF THE BUILDING ANNEXURE A3 A TRUE COPY OF NOTICE NO A7-4276/2018 DATED 5.3.2019 FROM THE PANCHAYAT TO THE JUNIOR SUPERINTENDENT JFCM ADIMALY SEEKING DETAILS OF THE ADIMALY BAR ASSOCIATION BUILDING ANNEXURE A4 TRUE COPY OF LETTER NO D-457/19 DATED 6.3.2019 FROM THE JUDICIAL FIRST CLASS MAGISTRATE ADIMALY TO THE PRESIDENT OF ADIMALY BAR ASSOCIATION, FORWARDING LETTER FROM THE PANCHAYAT ANNEXURE A5 TRUE COPY OF LETTER NO A7-4276/2018 DATED 19.3.2019 ISSUED BY THE PANCHAYAT TO THE REGISTRAR, HIGH COURT OF KERALA ANNEXURE A6 TRUE COPY OF LETTER DATED 8.4.2019 FROM THE PRESIDENT OF ADIMALY BAR ASSOCIATION ANNEXURE A7 TRUE COPY OF LETTER NO A7-4276/2018 DATED 16.4.2019 ISSUED TO JFCM ADIMALY ANNEXURE A8 TRUE COPY OF LETTER NO 934/19 DATED 15.5.2019 FROM JFCM ADIMALY ANNEXURE A9 TRUE CERTIFIED COPY OF THE COMPLAINT NUMBERED AS S.T NO 405/2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT ADIMALY ANNEXURE A10 TRUE CERTIFIED COPY PRINTOUT OF ALLEGED FACEBOOK POST FILED ALONG WITH THE COMPLAINT ANNEXURE A11 TRUE CERTIFIED COPY OF ORDER DATED 12.7.2019 IN ST NO 405/2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ADIMALY ANNEXURE A12 TRUE COPY OF THE CERTIFICATE OF EXCELLENCE DATED 19.2.2018 GIVEN BY GOVERNMENT OF KERALA TO THE PETITIONER CRL.MC NO. 1671 OF 2020 21 ANNEXURE A13 TRUE COPY OF THE CERTIFICATE OF EXCELLENCE DATED 16.2.2019 GIVEN BY GOVERNMENT OF KERALA TO THE PETITIONER