Karnataka High Court
N A Somaiah vs Anthony Clement Rego on 27 June, 2019
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE 2019
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.8437 OF 2016
BETWEEN:
1. N A SOMAIAH
S/O LATE N P ACHAIAH,
AGE:54 YEARS,
2. N A POONACHA
S/O LATE N P ACHAIAH,
AGE:52 YEARS,
3. SMT PARVATHI
W/O N A SOMAIAH,
AGE:48 YEARS,
4. SMT HARINI
W/O N A POONACHA,
AGE:45 YEARS,
ALL R/O SUDARSHAN COMPOUND
(EXTENSION), BLOCK NO.18,
MADIKERI CITY-571201
... PETITIONERS
(BY SRI: B.S. PRASAD, ADVOCATE)
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AND
ANTHONY CLEMENT REGO
S/O CIRIL REGO,
AGED 40 YEARS,
R/O DOOR NO.18/70(2),
SUDARSHAN COMPOUND, BLOCK NO.18,
CMC MADIKERI CITY-571201
... RESPONDENT
(RESPONDENT SERVED AND UNREPRESENTED)
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THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH
THE ORDER ONLY INSOFAR AS REMAND ORDER IS CONCERNED
DATED 28.05.2016 PASSED BY THE I ADDL. DIST. AND
SESSIONS JUDGE, KODAGU, MADIKERI IN CRL.RP.NO.45/2015
AND ALSO INITIATION OF PROCEEDINGS IN C.C.NO.279/2015
(PCR NO.319/2014) PENDING ON THE FILE OF PRL. CIVIL
JUDGE, MADIKERI.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:-
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ORDER
Petitioner is aggrieved by the order passed by the First Additional District and Sessions Judge, Kodagu, Madikeri to the extent of remanding the matter to the learned Magistrate for reconsideration of the case.
2. Outline facts of the case are that the petitioner herein submitted a written statement under Order VIII Rule 1 CPC and laid a counter claim under Order VIII Rule 6-A of CPC in O.S.No.112/2013. In the said pleadings, the petitioner averred as under :-
"The fourth plaintiff has crooked mind colluded with the area councilor tried to form a concrete road on the house site of the defendants and tried to make as public right of way"
Contending that the said statement has damaged the reputation of the respondent and thereby the petitioner has committed the offence under Section 500 of Indian Penal Code, a private complaint was filed by the respondent. The Magistrate recorded the sworn statement and directed summons to the 4 petitioner. The said order was challenged by the petitioner before the Revisional Court and by order dated 28.5.2016, the learned Sessions Judge set aside the order dated 9.3.2015 and remitted the matter to the learned Magistrate to reconsider the complaint in the light of the principles laid down in the cases of Subramanian Swamy - vs - Union of India [(2016) 7 SCC 221] Pepsi Foods Ltd. and another - vs - Special Judicial Magistrate and others [(1998) 5 SCC 749]
3. Learned counsel for the petitioner submits that the Learned Sessions Judge having arrived at a conclusion at paragraph 16 of the impugned order that the sworn statement of the respondent did not disclose that the petitioner has damaged the reputation of the respondent, could not have proceeded in the matter and should not have remitted the case to the learned Magistrate. Further, the learned counsel would contend that the alleged statement was made in a pleadings between the parties in a civil suit. The suit is not yet decided by the Civil Court and therefore, it was premature to resort to criminal action. 5 Thus, it is argued that both the courts have committed error in issuing summons to the petitioners.
4. Considered the submissions and perused the records.
5. In the complaint, the respondent has extracted the portion of the pleadings which according to him constituted the offence under Section 499 of Indian Penal Code. Undisputedly, the above statement was made by the petitioner in the written statement filed by him refuting the contentions made in the plaint. There is nothing in the entire written statement to indicate that the said allegations was made with an intention to harm the reputation of the respondent. Rather, these assertions appear to have been made by way of defence to vindicate the rights of the petitioner and expose the falsity of the claim set up by the plaintiff. The above statement cannot be construed as "imputation" affecting the character or the reputation of the petitioner. As such, in my view, the alleged statement, even if accepted as true, does not satisfy the ingredients of Section 499 of Indian Penal Code.
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6. Section 499 of Indian Penal Code defines defamation as 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."
7. As there is nothing in the written statement to indicate that the above statement was made with an intention to malign the name of the petitioners, in my view, the very cognizance taken by the learned Magistrate was illegal and does not find support in the averments made in the plaint. As such, in my view, the court below i.e. the Sessions Court was not justified in remanding the matter to the learned Magistrate for reconsideration.
For the above said reasons, the order dated 28.5.2016 passed by the Learned I Additional District and Sessions Judge, 7 Kodagu, Madikeri in Cr.R.P.No.45/2015 insofar as directing remand of the matter is set aside and rest of the order is confirmed.
With the above observations, the writ petition is disposed of.
Sd/-
JUDGE rs