Kerala High Court
Shiny Thankamani Chandra Iyer @ ... vs State Of Kerala on 24 July, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY, THE 24TH DAY OF JULY 2024 / 2ND SRAVANA, 1946
CRL.M.C. NO. 930 OF 2023
TO QUASH THE PROCEEDINGS IN CC NO.730 OF 2022 OF THE
ADDITIONAL CHIEF JUDICIAL MAGISTRATE, ERNAKULAM
PETITIONER/ACCUSED:
SHINY THANKAMANI CHANDRA IYER @VASTHAVIKA IYER,
AGED 34 YEARS, D/O. CHANDRA IYER, FLAT NO.CS-5,
C- BLOCK, ALIANCE TEDROSE, NILAMPATHINJAMUGAL,
RAJAGIRI VALLEY, KAKKANAD - 682039, ERNAKULAM
DISTRICT, NOW RESIDING AT FLAT NO. 2-I 2ND
FLOOR, HIGHWAY AVENUE, IIND BLOCK, ANTO
BUILDERS, CHAKKARAPARAMBU, VENNALA P.O.,
ERNAKULAM, PIN - 682028.
BY ADV BOBBY RAPHEAL.C
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM, PIN - 682031
2 P.C. GOVINDAN KUTTY NAIR
AGED 42 YEARS, S/O. LATE K. CHANDRASEKHARA
PILLAI, PUSHYA, PONOTH ROAD, ROYAL AVENUE,
KALOOR P.O., ERNAKULAM, PIN - 682017.
R1 BY SMT SHEEBA THOMAS, PUBLIC PROSECUTOR
R2 BY RAJASIMHAN A
R2 BY VYKHARI.K.U.
R2 BY SHARAFUDHEEN M.K.
R2 BY ANAS ALI M.M.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR FINAL
HEARING ON 17.07.2024, THE COURT ON 24.07.2024 PASSED THE
FOLLOWING:
2
Crl.M.C.No.930 of 2023
P.G. AJITHKUMAR, J.
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Crl.M.C.No.930 of 2023
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Dated this the 24th day of July, 2024
ORDER
The sole accused in C.C.No.730 of 2022 on the files of the Additional Chief Judicial Magistrate's Court, Ernakulam is the petitioner. She invoked the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 (Code) for getting the proceedings in C.C.No.730 of 2022 quashed.
2. Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for the 2 nd respondent.
3. The 2nd respondent filed a complaint alleging that the petitioner has committed offences punishable under Section 511 of 386, 469, 471, 499, 500, 506, 509 and 294(b) of the Indian Penal Code, 1860 (IPC) and Section 120(o) of the Kerala Police Act, 2011. The allegations are mostly about publication of derogatory, intimidating and defamatory statements by the petitioner in her Facebook account. 3 Crl.M.C.No.930 of 2023 Annexures R2(b) to R2(k) in the counter affidavit are the various such posts published from 03.12.2022 to 18.05.2023. It is alleged that in the said postings the petitioner imputed that the 2nd respondent withdrew from his promise to marry her after having sexual relationship, intimidated him that unless he paid Rs.50 lakhs he would be implicated in rape cases and published false and created photographs thereby creating an impression that he had married the petitioner. It is further alleged in the complaint that never had he sexual relationship with the petitioner and that she was incapable of performing sex. The 2nd respondent accordingly maintained that the acts of the petitioner adversely affected his reputation among his friends and well-wishers; besides being mentally annoyed and frightened.
4. The learned Magistrate after necessary inquiry issued summons to the petitioner to appear and answer the offences alleged in the complaint. The petitioner would contend that the allegations and averments in the complaint would not constitute any offence. She has stated true facts 4 Crl.M.C.No.930 of 2023 alone in the Facebook postings. The petitioner was subjected to rape by the 2 nd respondent on several occasions after assuring to marry her. He demanded Rs.50 lakhs as dowry and withdrew from the promise. She, therefore, lodged a complaint and a case was initiated against the 2 nd respondent. Annexure-2 is the FIR. It was as part of his attempt to get anticipatory bail in that case, he filed the complaint.
5. The petitioner has every right to publish her bitter experience and the true facts. Other than that she did not do anything. In fact the statement in the complaint that the petitioner was incapable to perform sex was a defamatory one and it is far from truth. The petitioner intends to initiate action against the 2nd respondent for defamation in that regard. She also contended that no other acts as alleged in the complaint have taken place. Accordingly, she contends that all the allegations in the complaint are false and the proceedings initiated thereon are liable to be quashed.
6. The 2nd respondent has filed a counter affidavit producing therewith Annexures R2(a) to R2(o). Annexure 2(b) 5 Crl.M.C.No.930 of 2023 to 2(k) are the Facebook posts in the account of the petitioner, which are allegedly defamatory and insinuating. Those documents were produced along with the complaint as the documents of libel and also carrying threat. It is seen prima facie that the petitioner published such statements through her Facebook account. Publicising of photographs figuring both the petitioner and the 2nd respondent together through her Facebook account is also evident. Various postings contain the statements that the 2nd respondent after giving false promise of marriage committed rape on the petitioner and unless the 2nd respondent pay money cases would be initiated. The allegations of the 2 nd respondent are that by publicising such objectionable matters, his media and other businesses were tried to be tarnished.
7. If the allegations contained in the aforementioned posts are incorrect, publication of the same is per se defamatory. The contention of the petitioner is that all what have been stated in her postings are expressions of her bitter experience and are truth. Of course, imputation of truth, if the 6 Crl.M.C.No.930 of 2023 same is for the public good, that would not amount to an offence of defamation. Similarly, imputation on the character of a person would not be defamation if the same was made for protecting the interest of the person making it and in good faith.
8. The right of a citizen to have freedom of speech and expression is guaranteed under Article 19 of the Constitution of India. But that right is not absolute. One has no such freedom of speech and expression to defame another. Therefore, anything published or spoken that amounts to defamation of another would not have the protection of Article 19 of the Constitution of India. Then again, the person accused of can certainly explain the imputations by resorting to the exceptions envisaged in Section 499 of the IPC. But being exceptions, it is the burden of the person accused of to prove the same. That can be decided on the basis of evidence only. Therefore, the contentions now raised by the petitioner are not reasons sufficient to quash the complaint in C.C.No.730 of 2022.
7Crl.M.C.No.930 of 2023
9. It is submitted by the learned counsel for the petitioner that the statement in Annexure-1 complaint particularly that the petitioner was incapable to perform sex was defamatory to her. Certainly the petitioner can recourse to law in that matter. As a matter of fact, a complaint in that regard was already filed by the petitioner and it is the submission of the learned counsel that the petitioner has been taking steps for challenging the order dismissing that complaint.
10. Besides the offence of defamation a few other offences are also alleged in the complaint. Attempt for extortion, creation of false documents, intimidation, publication of objectionable statements and materials, etc. are alleged. There are averments in the complaint supportive of such accusation. The learned counsel for the petitioner would contend that the complaint is vitiated since all the offences alleged in the complaint could not be clubbed together to try at one trial, and for want of a proper investigation most of the offences cannot be inquired into or tried by the court. It is 8 Crl.M.C.No.930 of 2023 also urged that for want of proper notice the prosecution for the offence of defamation is untenable.
11. True, a prosecution for an offence of defamation is possible only on a complaint in the light of the provisions of Section 199 of the Code. That does not mean that in a complaint filed in that regard, other offences cannot also be tried. It is not a requirement of law that an investigation by police should precede trial of a person for any offence. The prosecution is initiated on a complaint. Certainly it is the burden of the complainant to prove the charge. Therefore, the contentions that the offences are clubbed together and lack of investigation are no reasons to quash the proceedings in C.C.No.730 of 2022. The provisions of the Code do not insist a notice before initiating prosecution for defamation. Therefore, the contention of the learned counsel in that regard also cannot be countenanced.
12. Whether any of the offences would be constituted and whether a charge for any of those offences could be framed are matters to be considered after recording evidence 9 Crl.M.C.No.930 of 2023 under Section 244 of the Code. Only if the Magistrate is of the opinion, after considering the evidence so tendered, that there are grounds for presuming that the petitioner had committed the offence, a charge could be framed against her. When the allegations in the complaint and the materials produced therewith make out sufficient grounds for proceeding against the petitioner, I find no reason to quash the proceedings. Therefore, this petition is dismissed.
Sd/-
P.G. AJITHKUMAR, JUDGE dkr 10 Crl.M.C.No.930 of 2023 APPENDIX OF CRL.MC 930/2023 PETITIONER ANNEXURES ANNEXURE 1 TRUE COPY OF THE COMPLAINT CMP NO.
1733/2022 IN C.C. NO. 730/2022 FILED BY THE 2ND RESPONDENT/COMPLAINANT BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM ANNEXURE 2 TRUE COPY OF THE FIR AND FI STATEMENT IN CRIME NO.1464/2022 OF ERNAKULAM TOWN NORTH POLICE STATION, ERNAKULAM DISTRICT.
ANNEXURE 3 TRUE COPY OF THE ACCIDENT REGISTER-
CUM-WOUND CERTIFICATE DATED 21/9/2022 ISSUED FROM GENERAL HOSPITAL, ERNAKULAM ANNEXURE 4 TRUE COPY OF THE TREATMENT 5 RECORD DATED 21/9/2022 ISSUED FROM GOVERNMENT MEDICAL COLLEGE, ERNAKULAM ANNEXURE 5 TRUE COPY OF THE ORDER DATED 14.12.2022 IN CRLMC NO.2834/2022 OF THE DISTRICT & SESSIONS COURT, ERNAKULAM.
ANNEXURE 6 TRUE COPY OF THE FIR AND FIS IN CRIME
NO.920/2022 OF INFOPARK POLICE
STATION, ERNAKULAM DISTRICT.
RESPONDENT ANNEXURES
ANNEXURE R2(A) TRUE COPY OF THE COMPLAINT IN CC NO.
730 OF 2022 ON THE FILES OF ADDITIONAL
CHIEF JUDICIAL MAGISTRATE COURT,
ERNAKULAM
ANNEXURE R2(B) TRUE COPY OF HER FACEBOOK POSTDATED 3-
12-2022
ANNEXURE R2(C) TRUE COPY OF THE FACEBOOK POST DATED
7-12-2022
ANNEXURE R2(D) TRUE COPY OF THE FACEBOOK POST DATED
7-12-2022
ANNEXURE R2(E) TRUE COPY OF THE FACEBOOK POST DATED
4-1-2023
ANNEXURE R2(F) TRUE COPY OF THE FACEBOOK POST-DATED
6-1-2023
11
Crl.M.C.No.930 of 2023
ANNEXURE R2(G) TRUE COPY OF THE FACEBOOK POST-DATED
6-1-2023
ANNEXURE R2(H) TRUE COPY OF THE FACEBOOK POST-DATED
27-1-2023
ANNEXURE R2(I) TRUE COPY OF THE FACEBOOK POST-DATED
2-4-2023
ANNEXURE R2(J) TRUE COPY OF THE FACEBOOK POST-DATED
14-5-2023
ANNEXURE R2(K) TRUE COPY OF THE FACEBOOK POST-DATED
18-5-2023
ANNEXURE R2(L) TRUE COPY OF THE MARRIAGE PHOTO OF THE
PETITIONER
ANNEXURE R2(M) TRUE COPY OF THE ORDER OF THIS HON'BLE
COURT IN TRP © NO. 83/2007 DATED 25-
9-2007
ANNEXURE R2(N) TRUE COPY OF THE ORDER OF THE HON'BLE
HIGH COURT OF KERALA IN WP© NO.
4198/2011 DATED 9-2-2011
ANNEXURE R2(O) TRUE COPY OF THE JUDGMENT OF
ADDITIONAL SESSIONS COURT (FAST
TRACK), ALUVA IN SC NO. 752/2017 ON
25-1-2023