Kerala High Court
David John vs Jose Moothedan on 12 March, 2020
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C.No.6395 of 2017 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 12TH DAY OF MARCH 2020 / 22ND PHALGUNA, 1941
Crl.MC.No.6395 OF 2017
AGAINST THE ORDER IN CC 1502/2017 OF JUDICIAL MAGISTRATE OF
FIRST CLASS - I, CHALAKUDY
PETITIONER:
DAVID JOHN
PUDUKADAN HOUSE, CHEROOR ROAD, TRICHUR-680 020
BY ADVS.
SRI.G.HARIHARAN
SMT.JINU ANTONY
SRI.PRAVEEN.H.
SMT.K.S.SMITHA
SMT.T.T.SHANIBA
SRI.M.V.VIPINDAS
RESPONDENTS:
1 JOSE MOOTHEDAN
S/O. KOCHUNNY, MOOTHEDAN HOUSE, POTTACHIRA ROAD,
NORTH CHALAKUDY, POTTA VILLAGE, CHALAKUDY TALUK 680
307
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA 682 031
R1 BY ADV. SRI.TOM K.THOMAS
OTHER PRESENT:
PUBLIC PROSECUTOR SMT.MAYA M N
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06-
03-2020, THE COURT ON 12-03-2020 PASSED THE FOLLOWING:
Crl.M.C.No.6395 of 2017 2
"CR"
P.V.KUNHIKRISHNAN, JJ
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Crl.M.C.No.6395 of 2017
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Dated this the 12th day of March, 2020
ORDER
The petitioner is the accused in CC 1502/2017 on the file of Judicial Magistrate of the First Class, Chalakkudy. This Criminal Miscelleneous Case is filed under Section 482 Cr.P.C to quash the entire proceedings in the above case. It is a private complaint filed by the 1st respondent alleging offence punishable u/s.499 & 500 IPC. The learned Magistrate took cognizance of the offence and registered the case as C.C.No.1502/2017.
2. Allegation in Annexure-A1 complaint in brief is that, on 5.7.2016, the petitioner submitted a complaint to the District Collector, Thrissur. That complaint was filed to take action by the District Collector, Thrissur who is also the District Rifle Association President to cancel the arms license issued to the 1 st respondent and some others. In that complaint, it is stated that the 1st respondent misrepresented to the District Collector that, he Crl.M.C.No.6395 of 2017 3 is a participant in shooting championship at Delhi and hence, he may be granted exemption from depositing the arms during the Kerala Assembly Election 2016. In the letter, it is stated by the petitioner that, during the period for which exemption was requested for surrendering the arms, no competition is scheduled in New Delhi. It is also stated in the letter that, only two out of six people have participated in the shooting competition at New Delhi. Hence, the petitioner requested the licensing authority to terminate the arms license and initiate prosecution against the 1 st respondent and others who misrepresented before the District Collector. According to the 1st respondent, his application for the license of sports weapon to be added with his license was pending before the District Collector at that time and his signature alone was necessary. At that stage, on 5.7.2016 the complaint was filed by the petitioner to the District Collector. According to the 1st respondent, such an application was filed with an intention to restrict him in participating in shooting events and the complaint is filed with the knowledge that, if such a complaint is filed, the arms license of the 1st respondent will be cancelled and Crl.M.C.No.6395 of 2017 4 criminal case will be initiated against him. In nutshell, the allegation is that the complaint filed by the petitioner to the District Collector, Thrissur is defamatory to the 1 st respondent and knowing about the same, several persons contacted the 1 st respondent and informed that, they never believed that the 1 st respondent will act like this. According to the 1 st respondent, the impression about the 1st respondent is decreased to the above persons because of the above complaint. The complaint filed by the petitioner to the District Collector is produced as Annexure-A3 by the petitioner. The letter is extracted hereunder:
From David John Pudukadan House Cheroor Road Thrissur-680 020 To The District Collector, Thrissur & President, The Thrissur District Rifle Association Dear Sir, Subject: Illegal activity and misrepresentation I am enclosing a letter submitted by a group or persons represented by Mr Jose Moothedan has engaged in a delibrate and willfull act of misrepresenting as participants in Shooting Championships at New Delhi and hence they be granted exemption from deposit of arms during the Kerala Assembly Elections 2016.
It is found that during the period of exemption requested no competition were being held in New Delhi for which they hold arms license. Further more only 2 out of the 6 people have participated in big bore shooting competition at New Delhi.Crl.M.C.No.6395 of 2017 5
These crimes are against the interest of the nation as mentioned in WPC35696/2015 of the the High Court of Kerala.
I request you to terminate the arms licenses of these persons and initiate criminal proceedings under releveant sections of IPC.
Thanking you yours faithfully David John Jt Secretary Kerala State Rifle Association 05/07/2016
3. Based on Annexure-A3 letter, the complaint was filed by the 1st respondent and the learned Magistrate took cognizance of the same under Sect.499 & 500 IPC and issued summons to the petitioner. The petitioner wants to quash Annexure-A1 complaint.
The defamation is defined in Section 499 IPC. Section 499 IPC is extracted here under.
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 the cases hereinafter excepted, to defame that person.
[empahsis supplied]
4. First of all, to attract the definition of defamation, it is mandatory that, whoever by words either spoken or intended to Crl.M.C.No.6395 of 2017 6 be read, or by signs, or by visible representations, makes or publishes any imputation concerning any person intending to harm such person. Makes or publishes is interpreted by this court in Ramakrishnan v. Subrama Shastrikal, (1986 KLT 1361). The relevant portion of the above judgment is extracted here under:
6. The next question is about publication of the imputation. It is contended that there is no publication. To attract the definition of the offence of defamation as contained in S.499 of the IPC, the imputation should have been made or published. "Whoever makes or publishes any imputation" are the relevant words employed in Section. The word "makes"
is intended to supplement the sense of "publishes," Those words conjunctively connote "to make public". It is settled proposition that there is no publication if the libeller merely communicates his libel to the person defamed.
5. Therefore it is clear that to attract the definition of offence of defamation as contained in Section 499 of the IPC, the imputation should have been made or published. "Whoever makes or publishes any imputation" are the relevant words employed in the section. This court observed in the above decision that the word "makes" is intended to supplement the Crl.M.C.No.6395 of 2017 7 sense of " publishes". Those words according to the decision conjunctively cannote "to make public".
6. In this case, the admitted case of the 1 st respondent is that the petitioner made a complaint to the District Collector, Thrissur to cancell the arm license of the 1st respondent and others and to initiate criminal proceedings for misrepresenting the facts before the District Collector for not surrendering the arms in connection with the Kerala Assembly Election, 2016. Annexure- A3 is the complaint. A reading of Annexure-A3 will not prima facie, constitute the ingredients of defamation as contained in Section 499 IPC. Moreover, when a citizen make a complaint to the authorities to cancel an arms license issued to a person for certain specific reasons, the same will not amounts to defamation as contained in Sec.499 IPC. Similarly, filing a complaint before the statutory authorities to cancel an arms license, will not come within the purview of "makes or publishes" mentioned in Section 499 IPC. There is no publication of the complaint, if a complaint is submitted by a citizen to the District Collector for taking appropriate action for cancelling an arms licence. In such Crl.M.C.No.6395 of 2017 8 situation, the licensee of the arms cannot file a complaint to prosecute a person for defamation. If he sustained any loss for not taking appropriate action by the authorities in view of the complaint, he may have civil remedies. That doesn't mean that he can file a complaint to prosecute that person, who filed the complaint. In this case, even a reading of Annexure-A3 complaint alleged to be filed by the petitioner to the District Collector, Thrissur, no ingredients of defamation is attracted. This is a case which ought not have been taken cognizance by the learned Magistrate.
7. Summoning a person to a criminal court is a serious matter, and the Magistrate should apply his/her mind before taking cognizance of the offence. Non application of mind to the materials, before taking cognizance cannot be brushed aside as a procedure irregularity. The law imposes a serious responsibility on the Magistrate to decide, whether there is sufficient ground to proceed against an accused. The Supreme Court in Birla Corporation v Ltd. v. Adventz Investments and Holding Ltd (AIR 2019 SC 2390) cautioned the Magistrates to see that no Crl.M.C.No.6395 of 2017 9 innocent person is summoned in a criminal case. The relevant portion of the judgment is extracted here under:
" The issuance of process should not be mechanical nor should be made as an instrument of harassment to the accused. As discussed earlier, issuance of process to the accused calling upon them to appear in the criminal case is a serous matter and lack of material particulars and non-application of mind as to the materials cannot be brushed aside on the ground that it is only a procedural irregularity."
8. In this case, the learned Magistrate erred in issuing process to the petitioner based on Annexure-A1 complaint. A reading of Annexure-A1 complaint, no offence under Sec.500 IPC is made out. The averments in the complaint will not attract the definition of the offence of defamation contained in Sec.499 IPC. Annexure A3 is only a letter issued by the petitioner to the District Collector. The contents of the letter may be against the 1st respondent and his arms license. There is no material available in Annexure A1 complaint or in Annexure-A3 letter to hold that the petitioner sent the letter containing certain imputation with an intention to harm or with the knowledge that such imputation will harm the reputation of the 1st respondent. Therefore, I am of the opinion that, no Crl.M.C.No.6395 of 2017 10 offence is made out in Annexure-A1 complaint.
Hence, all proceedings against the petitioner in CC 1502/2017 on the file of Judicial Magistrate of the First Class, Chalakkudy are quashed.
P.V.KUNHIKRISHNAN, JUDGE cms Crl.M.C.No.6395 of 2017 11 APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE A1 THE CERTIFIED COPY OF THE PRIVATE COMPLAINT ANNEXURE A2 A TRUE PHOTO COPY OF THE PETITION DATED 8/3/2016 ANNEXURE A3 A TRUE PHOTOCOPY OF THE SAID COMPLAINT ANNEXURE A4 A TRUE COPY OF THE COMPETITOR CARD ANNEXURE A5 A TRUE PHOTOCOPY OF THE LETTER DATED 11/3/2016 ANNEXURE A6 A TRUE PHOTOCOPY OF THE REPLY DT 11/3/16 ANNEXURE A7 A TRUE PHOTOCOPY OF THE PROCEEDINGS DATED 22-03-2016 ANNEXURE A8 THE REPORT OF DISTRICT POLICE CHIEF ANNEXURE A9 A TRUE PHOTOCOPY OF THIS LETTER DATED NIL ANNEXURE 10 A TRUE COPY OF THE COMPLAINT DATED 02/08/2016 ANNEXURE II THE FORWARDING LETTER DATED 16-12-2016 ANNEXURE A12 THE ENQUIRY REPORT DATED 11-12-2016 EXT P13 COPY OF THE JUDGMENT OF THIS COURT DTD 19.3.2019 IN WP(C) No.8282/2019 RESPONDENTS EXTS NIL cms /TRUE COPY/ P.S TO JUDGE