Madras High Court
Unknown vs C.K.Dhandapani on 3 October, 2018
CRL.O.P.No.1963 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 19.04.2022
Delivered on: .07.2022
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
CRL.O.P.No.1963 of 2019
and
Crl.M.P.Nos.1231 of 2019
1. M/s. Nakkheeran Publications,
Represented by its
Publisher Nakkheeran Gopal
2. M/s. Nakkheeran Printers & Binders
Represented by its
Printer Nakkheeran Gopal
3. Nakkheeran Gopal
Publisher, Editor & Printer of
Nakkheeran Publications
4. R.Gurusamy
Management Administration of
M/s. Nakkheeran Publications
5. R.Sundar
Production Manager of
M/s. Nakkheeran Publications
6. S.Suresh Kumar
General Manager of
M/s. Nakkheeran Publications
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CRL.O.P.No.1963 of 2019
7. C.Francis
Administrative Manager of
M/s. Nakkheeran Publications ... Petitioners
Vs.
C.K.Dhandapani ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of
Criminal Procedure Code to quash the proceedings in C.C.No.656 of
2017 on the file of the learned Judicial Magistrate – I, Tirupur.
For Petitioners : Mr.P.T.Perumal
For Respondent : Mr.R.Rajesh Vivekanandan
ORDER
This Petition has been filed by the Accused 2 to 8 seeking to quash the private Complaint filed by the Respondent herein in C.C.No.656 of 2017 on the file of the learned Judicial Magistrate – 1, Tirupur for the offence of defamation.
2. Mr.P.T.Perumal, learned Counsel for the Petitioners submitted that the private Complaint was filed in the year 2014. However, as per 2/27 https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 diary entries, the Complaint has been numbered in the year 2017. There is no communication as to whether the learned Judicial Magistrate recorded the sworn statement of the Respondent/Complainant which is a mandatory provision under Section 200 Cr.P.C. Further, the learned Counsel for the Petitioners submits that the Petitioners herein, who are arrayed as Accused 1 to 8 in the private Complaint, are residents of Chennai and not residing within the territorial jurisdiction of learned Judicial Magistrate – I at Tirupur. There is no communication to show that the learned Judicial Magistrate had applied his/her mind and had applied with the requirements of Section 202 of Cr.P.C. It is seen that the Complaint had been filed by the Respondent/Complainant viz., Dhandapani, who claimed himself that he belongs to an Organization. The Prosecution for defamation has to be necessarily complied with the requirements of Section 199 of Cr.P.C., It can only be filed by a person aggrieved. The entire allegations contained in the publications is not against the Respondent/Complainant.
2.1. The learned Counsel for the Petitioners invited the attention of this Court to the ingredients of Section 499 of IPC. The ingredients of 3/27 https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 Section 499 of IPC reads as under:
“Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishers any imputation concerning any person intending to harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.” 2.2. Particularly, he invited the attention of this Court to Explanation IV of Section 499 of IPC which reads as follows:
“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 the body of that person is in a loathsome state, or in a state generally considered as disgraceful.” 2.3. Further, the learned Counsel for the Petitioners invited the attention of this Court regarding the address and the designation of the Petitioners herein, who were arrayed as Accused, in the Complaint.
Accused – 1/Petitioner – 1 is the Author of the Article in the Nakkheeran Tamil Bi-Weekly of M/s. Nakkheeran Publications. The Accused – 2/Petitioner – 2 is the Organization viz., M/s. Nakkheeran Publications represented by its Publisher Nakkheeran Gopal. The Accused – 3/Petitioner – 3 is the Editor and Printer of M/s. Nakkheeran Publications. The Accused – 4/Petitioner -4 is the Management Administrator of M/s. Nakkheeran Publications. The Accused- 4/27 https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 5/Petitioner – 5 is the Production Manager of M/s. Nakkheeran Publications. The Accused – 6/ Petitioner -6 is the General Manager of M/s. Nakkheeran Publications and the Accused -7/ Petitioner – 7 is the Administrative Manager of M/s. Nakkheeran Publications. All the Petitioners 1 to 7 are the Residents of Royapettah, Chennai, within the jurisdiction of City Civil Court and within the jurisdiction of the learned Chief Metropolitan Magistrate, Chennai and not the residents of within the territorial jurisdiction of learned Judicial Magistrate – 1, Tirupur.
2.4. Further, the learned Counsel for the Petitioners invited the attention of this Court regarding the Respondent/Complainant who claims that he is the “Prachar Pramugh of the Rashtriya Swayamsewak Sangh” and is residing at No.5, Ranganathapuram, Second Street, Kongu Main Road, Tirupur District.
2.5. The learned Counsel for the Petitioners invited the attention of this Court to the Complaint stating that the Accused No.1 is the Author of the Article “mrpkhde;j; ga';futhjj;jpd; ,e;Jj;Jth Kfk;” in the Tamil Bi- 5/27 https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 Weekly Magazine. The learned Counsel for the Petitioners had displayed a copy of M/s. Nakkheeran Publications showing the details regarding the Publication which is mandatory as per the Press and Registration of Books Act.
2.6. As per the Press and Registration of Books Act, the Petitioners 1 to 4 alone are liable for any Prosecution for defamation, whereas the Petitioners 5 to 8 who are not at all connected with the Article, had been arrayed as Accused which is nothing but an abuse of process of Court.
2.7. The learned Counsel for the Petitioners invited the attention of this Court regarding passages from the Article alleged to have been written by the first Petitioner/first Accused in the body of the Complaint, which reads as follows:
b. In Page No.20 there was a paragraph, “Mh;/v!;/v!;!PfF ; k; gpw ,e;Jj;Jth mikg;gf[ Sf;Fk;
,ilapyhd bjhlh;g[fs; kjf;fytu';fspYk; ga';futhj jhf;Fjy;fspYk; vt;thW Mhkhf ,Ue;jpUf;fpd;wd vd;gijg; gw;wp ,Jtiu ,e;jpahtpy; Kiwahd tprhuizfs; vJt[k; ele;jnj ,y;iy/” c. Further the said article defamed the chastity of 6/27 https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 complainant's organisation (RSS). It is more pertinent to note that the accused have published the following defamatory sentences in a paragraph in the 20th page of the aforementioned article, “Mh;/v!;/v!;!PwF ; tHf;fkhd bray;jpl;lk; xd;W ,Uf;fpwJ/ ga';futhj jhf;Fjy;fspy; <LgLk; egh;fis mJ Kd;dpd;W jahh; bra;ak[ ;/ gpwF mth;fis jdJ epHy; mikg;g[fspd; tHpahf bray;glj; Jhz;Lk;/ me;j egh;fs; ga';futhj jhf;Fjy;fspy; <Lgl;L rl;lj;jpd; Kd;dhy; epWj;jg;gLk;nghJ j';fSf;Fk; me;j egh;fSf;Fk; bjhlh;ng ,y;iybad;W rhjpf;Fk; my;yJ mikg;ig tpl;nl ngha;tpll; hh;fs; vd;W ehlfkhLk;/”:
d. Further the accused have published the following defamatory words in 22nd page of the accused bi-weekly namely Nakkheeran, “vg;nghbjy;yhk; ga';futhj jhf;Fjy;fspy; jd;Dila egh;fs; <Lgl;L khl;of;bfhs;Sk;nghJ mth;fis j';fisr; rhh;e;jth;fs; my;y vd;W brhy;tJ Mh;/v!;/v!;!pd; tHf;fkhd xU a[fj; p.” e. In the same 22nd page of the accused bi-weekly namely Nakkheeran, there is a paragraph which contains the following defamatory words, “ md;W fhe;jpia bfhiy bra;j jdJ gpujpepjpahd ehJuhk; nfhl;nrid Mh;/v!;/v!;/ vg;go iftpl;lnjh mnjnghy ,d;W mrpkhde;ij vt;thW iftpl Kaw;rpf;fpwJ vd;gijg; gw;wpa[k; ahh; ,e;j mrpkhe;j; vd;gJ gw;wpa[k; mLj;j ,jHpy; ghh;gn; ghk;/” 2.8. The last Page of the Complaint states that the Complainant has to give the details of the documents relied on by him and the Witnesses are to be examined in support of the contention of the Complainant.7/27
https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 2.9. Further, the learned Counsel for the Petitioners invited the attention of this Court to the certified copy of the proceedings of the learned Judicial Magistrate – 1, Tirupur in Crl.M.P.No.2307 of 2015 in C.C.No.656 of 2017, which reads as follows:
“31.08.2017 – Complainant present. At request call on 08.09.2017, On 08.09.2017 – Call on 13.09.2017, On 13.09.2017 – Complainant absent.
No representation Call on 22.09.2017 and On 22.09.2017 – Complainant absent. No representation. Records perused and prima facie satisfied as to commission of the offence u/s. 295 A, 500 and 501 of IPC. Take the case on file.
Case taken on file u/s. 295 (A), 500, 501 of IPC issue summons to accused on payment of process, private notice permitted. Call on 06.12.2017.” 2.10. Further, the learned Counsel for the Petitioners invited the attention of this Court to the case status downloaded by the learned Counsel for the Petitioners which reads as follows:
Business : Complainant present private notice to accused by Next Purpose : Issue of service Next Hearing Date : 03-10-2018 2.11. During recording the sworn statement, the Complainant had to furnish documents relied on by him. Also, the sworn statement of the 8/27 https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 supporting witnesses or corroborating witnesses also ought to be recorded by the learned Judicial Magistrate before ever taking cognizance of the Complaint. Here, those mandatory provisions were not at all found from the proceedings of the learned Judicial Magistrate.
Further, regarding the Case Status uploaded on the website of the Court concerned is confusing. It is stated that the case was restored and disposed. Therefore, the Complaint filed in the year 2014 had been recorded, taken on file in the year 2017. Whether any Petition is filed to condone the delay in representation has not been found.
2.12. The learned Counsel for the Petitioners invited the attention of this Court to Section 202 (2) of Cr.P.C., which reads as follows:
“In an inquiry under Sub Section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:” 2.13. No documents had been furnished regarding the status of the Petitioner/Respondent herein as Prachar Pramugh and whether he is a member of the organization of Rashtriya Swayamsewak Sangh. Instead of issuing summons, only private notice had been taken. The Petitioners herein had not received any summons from the Court of the learned 9/27 https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 Judicial Magistrate. The learned Counsel for the Respondent/Complainant had issued private notice on his letter pad. The Accused 2 to 4 are one and the same person. A-5 to A-8 are employees of the Company. Therefore, the Petitioners 5 to 8 cannot be proceeded under defamation law as it is not permissible. Accordingly, A-5 to A-8 are unnecessary parties.
2.14. The learned Counsel for the Petitioners invited the attention of this Court to Section 3 of the Press and Registration of Books Act regarding the declaration which is mandatory. Section -5 which is also mandatory in continuation of the declaration under Section 3. Then, Section 7, the presumption available under those circumstances in the light of Sections 3, 5 and 7 of Press and Registration of Books Act. A-5 to A-8 are nowhere connected. The intention of Sections 3,5 and 7 is that scribe is to be held responsible, Printers are also liable under Section 3 of the Act. Under those circumstances, Publisher may be made as party and others cannot be held liable. The learned Counsel for the Petitioners invited the attention of this Court to para 8 page 13 of the typed sets which reads as follows:
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8. In the said articles under the Head line “ “mrpkhde;j;
ga';futhjj;jpd; ,e;Jj;Jth Kfk;” the accused have explicitly stated that RSS was acted as backbone for Nathuram Godse in the murder of Mahatma Gandhi. For which the accused does not have an iota of evidence. The Complainant states that the accused had purposefully published to defame the name of RSS (Rashtriya Swayamsewak Sangh). The Complainant states that R.S.S. (Rashtriya Swayamsewak Sangh) is an organization which voluntarily works for the benefit of each and every Indian public and for the Welfare of the Nation. But all of the accused in order to harm the moral and intellectual character of Complainant's organization had purposefully published the above said article for the view of General public through the accused bi-weekly Magazine “NAKKHEERAN”.
2.15. The learned Counsel for the Petitioners refers to Explanation 4 stating that “the Petitioner/Respondent herein is not at all directly affected. He has not filed any document to prove that he belongs to the Organization of Rashtriya Swayamsewak Sangh. In the list of witnesses, except the Complainant, no other witnesses had been cited by the Petitioner/Respondent”.
2.16. The learned Counsel for the Petitioners invited the attention of this Court to the additional typed sets of papers which is a compilation of citations. The learned Counsel for the Petitioners quoted the latin word, which reads as follows:
“Per Quod is a Latin phrase (meaning whereby) used to illustrate that the existence of a thing or an idea is on the basis of external circumstances not explicitly known or stated.” 11/27 https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 And also the article – Defamation Law : Libel Per Quod Definition, Examples, and Recourse. He had also cited the ruling of this Court reported in CDJ 1997 MHC 392 in the case of J.Jayalalitha Vs. Arcot N.Veerasamy. The relevant portion reads as follows:
“33. Thus, the conjoint reading of Section 499 IPC., with this Explanation 4, would make it clear, that in the Complaint, there shall be an averment to the effect, that because of the imputation, the Complainant's reputation had been lowered in the estimation of others. As indicated earlier, this important ingredient is absent in the Complaint and in the sworn statement.” 2.17. The learned Counsel for the Petitioners also invited the attention of this Court to the ruling of the Hon'ble Supreme Court reported in 2008 SCC Online Ker 102: (2008) 2 KLJ 417 : 2008 Cri LJ 4221 in the case of V.S.Achuthanandan Vs. G.Kamalamma & Another.
2.18. The learned Counsel for the Petitioners had relied on the following rulings:
(I) 2012 SCC Online HP 4955: (2013) 121 AIC (Sum 25) 13 in the case of Smt. Veena Sood and others Vs. Sh.Ramesh Kumar.
(ii) 1994 SCC Online Kar 293 : 1995 Cri LJ 1922 in the case of Prabhu Chawla and Others Vs. A.U.Sheriff.
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(iii) (2014) 14 SCC 638 in the case of Vijay Dhanuka and others Vs. Najima Mamtaj and others wherein it is held as under:
“A.Criminal Procedure Code, 1973 – S.202- Requirement to conduct inquiry or direct investigation before issuing process where accused residing beyond territorial jurisdiction of Magistrate concerned, held, mandatory – Purpose is to protect innocent persons residing at far off places from being harassed.
B. Criminal Procedure Code, 1973 – Ss.202 and 2 (g) - “Inquiry” - Examination of Complainant and witnesses and only thereafter direction issued for issuance of process – Held, constitutes inquiry for purposes of S.202.
C. Interpretation of Statutes - Subsidiary Rules – Mandatory or directory - “Shall” - Held, cannot always be construed as mandatory – Context and legislative intention to be considered.”
(iv) 2022 (1) MWN (Cr.) 420 in the case of Nakkheeran Gopal Vs. Rajendran wherein it is held as:
“Indian Penal Code, 1860 (45 of 1860), Section 499, Explanation 4 – Defamation – What makes out – Only when a person's reputation, character and credit is directly or indirectly lowered in estimation of others, offence of Defamation attracted – Complaint allegations showing no pleading as to whether Respondent's reputation, character and credit is harmed in estimation of others – Nor any Witness cited to speak about same – Offence, held, not made out.
Indian Penal Code, 1860 (45 of 1860), Sections 469 & 500 r/w. 501 & 502 – Forgery for purpose of harming reputation – Offence, if, made out – Complaint allegations that Petitioners forged Complainant's Letter Head and published defamatory article in Magazine – However, in Letter sent to Petitioners, Complainant alleged that Petitioners should have contacted him before publishing Letter and publication of Letter in his Letter pad without permission was condemnable – Also alleged that Xerox copy of office Letterhead secured from others and news was 13/27 https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 printed – Contradictory stand taken by Complainant with regard to published material – On one hand, it is claimed that Letterhead and contents are fabricated, on other hand, Complainant claims that he was not Author of contents/Complaint - Case of Petitioners that they got impugned Complaint from their source and published alongwith other Complaints received against Party Leaders without any malice – No averments in Complaint that allegations made against Complainant was untrue and due to imputation, image and reputation of Complainant lowered in estimation of Public – No prima facie case made out to take cognizance against Petitioners – Proceedings liable to be quashed.
Code of Criminal Procedure, 1973 (2 of 1974), Section 202 – Postponement of issue of Process – Mandatory under Section 202, when Accused residing outside jurisdiction of Magistrate – Accused residing in Chennai – Court in Sankari taken cognizance of offence - Magistrate should have either enquired case himself or directed investigation by Police Officer to decide whether sufficient grounds made out for proceedings – Inquiry ought to have been conducted by Magistrate by examining Witnesses.” 2.19. The learned Magistrate should either inquire the case himself or direct an investigation to be made by Police Officer or by such other person as he thinks fit, for the purpose of deciding whether there is sufficient ground for proceeding or not. Investigation by Police Officer may not be required in this case. Certainly an Inquiry as to whether Respondent's reputation is harmed in the estimation of others ought to have been conducted by the learned Judicial Magistrate by examining Witnesses.
2.20. In the light of the above, the learned Counsel for the 14/27 https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 Petitioners/Accused 2 to 8 in C.C.No.656 of 2017 sought the intervention of this Court by exercising extraordinary jurisdiction under Section 482 of Cr.P.C., to quash the criminal Complaint in C.C.No.656 of 2017 pending on the file of the learned Judicial Magistrate – I, Tirupur.
3. The learned Counsel for the Respondent vehemently objected to quash the private Complaint filed by the Respondent in C.C.No. 656 of 2017 on the file of the learned Judicial Magistrate – 1, Tirupur on the ground that what are all argued by the learned Counsel for the Petitioners are to be considered only during trial and not at this stage by exercising extraordinary powers under Section 482 of Cr.P.C., 3.1. The learned Counsel for the Respondent relied upon the following rulings:
(1) (2017) 11 SCC 321 in the case of Rahul Gandhi Vs. Rajesh Mahadev Kunte and another (2) 2022 SCC Online Ker 137 : (2022) 1 KLT 390 in the case of Mathrubhoomi Illustrated Weekly, represented by its Editor and others Vs. P.Gopalankutty and another.
15/27
https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 (3) 2015 SCC Online Bom 522 in the case of Mr.Rahul Gandhi, M.P.Vice President Vs. Rajesh Mahadev Kunte Business man and another.
(4)1997 (1) MWN (Cr.) 80 in the case of Elumalai Vs. K.Sukumar (5) 1967 SCC Online All 282 : 1969 Cri LJ 536 in the case of Tek Chand Gupta Vs. R.K.Karanjia and others (6) Mathrubhoomi Printing and Publishing Co. Ltd & Ors Vs. P.Gopalankutty & Anr ( Special Leave to Appeal (Crl.) No.2368/2022 (7) 2011 (122) DRJ 421 in the case of Abhishek Agrawalla Vs. Boortmalt NV & Anr.
(8) (1972) 2 SCC 680 in the case of G.NArasimhan and others Vs. T.V.Chokkappa.
(9) (2017) 3 SCC 528 in the case of Abhijit Pawar Vs. Hemant Madhukar Nimbalkar and another.
3.3. In support of his contention, the Complaint by the Respondent against the publication of news item regarding the Organization to which the Respondent/Complainant belongs to, the reputation of the Organization as well as the reputation of the individual, the 16/27 https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 Respondent/Complainant herein. Therefore, the Complaint is very well maintainable and sought to dismiss this Petition.
4. On consideration of the rival submissions of the learned Counsel for the Petitioners and the learned Counsel for the Respondent and on perusal of the Complaint, what had been argued by the learned Counsel for the Petitioners is acceptable.
4.1. The Respondent had stated in the cause title of the Complaint that he is Prachar Pramugh of Rashtriya Swayam Sewag Sangham for which the learned Counsel for the Petitioners invited the attention of this Court to the documents furnished along with the Complaint viz., list of documents in which the membership card of the Respondent/Complainant mentioned that he belongs to the Organization of Rashtriya Swayam Sewag Sangham had not been furnished as a document. In the absence of such a document, the Complaint itself cannot be maintained.
4.2. The learned Counsel for the Petitioners invited the attention of 17/27 https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 this Court to Section 499 of IPC is found acceptable regarding all the Petitioners 1 to 7/Accused 2 to 8 residents of Royapettah at Chennai and they are residing within the jurisdiction of City Civil Court and within the territorial jurisdiction of learned Chief Metropolitan Magistrate, Chennai and there is no residence within the territorial jurisdiction of learned Judicial Magistrate – 1, Tirupur.
4.3. The learned Counsel for the Petitioners also furnished the documents in the typed set of papers as under:
List of Documents
1. The Tamil Bi-weekly Magazine “NAKKHEERAN” dated: 2014 February 15-18th.
2. The Tamil Bi-weekly Magazine “NAKKHEERAN” dated: 2014 February 19-21th.
3. The notice dated: 13.03.2014 given by the Complainant to the above named accused No.1 to 8.
4. The served acknowledgement cards (8 Series). 4.4. The proceedings dated 22.09.2017 does not seem to be taken 18/27 https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 cognizance by the learned Judicial Magistrate-1, Tiruppur based on the statement of the Complainant, the Respondent before this Court/the Complainant before the learned Judicial Magistrate – 1 along with the statements of the Witnesses who supports the claim of the Respondent as Complainant before the learned Judicial Magistrate along with documents in support of the contention of the Complainant regarding his membership of the Organisation of Rashtriya Swayam Sewak Sangh, regarding the Post held by him as “Prachar Pramugh of Rashtriya Swayam Sewak Sangh”.
4.5. The act of the learned Judicial Magistrate – 1, when the Complainant is absent, taking the Complaint on record by merely perusing the Complaint cannot be considered as holding enquiry which is mandatory under Section 202 (2) of Cr.P.C., Section 202 (2) of Cr.P.C.
“In an inquiry under Sub Section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:” 4.6. Further, as pointed out by the learned Counsel for the 19/27 https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 Petitioners, the summons were not issued to the Accused/Petitioners herein. After taking cognizance of the statement of Complainant and supporting Witnesses as per the Provisions of Cr.P.C., regarding taking Private Complaint on file under Sections 200, 201, 202 of Cr.P.C., the summons were not issued to the Accused. Instead notice by the learned Counsel for the Respondent as Complainant before the learned Judicial Magistrate – 1, Tirupur only was taken. That shows, the learned Judicial Magistrate had not applied his/her judicial mind.
4.7. Further, the learned Counsel for the Petitioners invited the attention of this Court to the averments in the Complaint. It is filed by the Respondent claiming to be a Member of the Organisation of Rashtriya Swayam Sewak Sangh wherein he was holding the Post of “Prachar Pramugh”. There is no such averments in the body of the Complaint. In what way specifically the imputation attributed on the Petitioners/Accused had affected the reputation of the Respondent as Complainant. In the absence of such specific averments, the learned Judicial Magistrate – 1 taken cognizance of the offence without holding enquiry under Section 202 of Cr.P.C., which is mandatory for taking 20/27 https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 private Complaint on file and issuing of summons to the Accused is found unacceptable in the eyes of law. The arguments of the learned Counsel for the Petitioners/Accused regarding the maintainability of the Complaint as seen from the records, deposition relied on by the learned Counsel for the Petitioners based on the criminal Complaint filed by the Respondent/Complainant is found acceptable that the learned Judicial Magistrate had not held enquiry, as per the Provisions of the Criminal Procedure Code. Regarding taking a private Complaint on file and taking cognizance of the offences alleged in the Complaint, when taking private Complaint on file itself is not as per the Code of Criminal Procedure. The learned Counsel for the Respondent relied upon the following rulings:
(1) (2017) 11 SCC 321 in the case of Rahul Gandhi Vs. Rajesh Mahadev Kunte and another (2) 2022 SCC Online Ker 137 : (2022) 1 KLT 390 in the case of Mathrubhoomi Illustrated Weekly, represented by its Editor and others Vs. P.Gopalankutty and another.
(3) 2015 SCC Online Bom 522 in the case of Mr.Rahul Gandhi, M.P.Vice President Vs. Rajesh Mahadev Kunte Business man and another.
21/27
https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 (4)1997 (1) MWN (Cr.) 80 in the case of Elumalai Vs. K.Sukumar (5) 1967 SCC Online All 282 : 1969 Cri LJ 536 in the case of Tek Chand Gupta Vs. R.K.Karanjia and others (6) Mathrubhoomi Printing and Publishing Co. Ltd & Ors Vs. P.Gopalankutty & Anr ( Special Leave to Appeal (Crl.) No.2368/2022 (7) 2011 (122) DRJ 421 in the case of Abhishek Agrawalla Vs. Boortmalt NV & Anr.
(8) (1972) 2 SCC 680 in the case of G.NArasimhan and others Vs. T.V.Chokkappa.
(9) (2017) 3 SCC 528 in the case of Abhijit Pawar Vs. Hemant Madhukar Nimbalkar and another.
The objection by the learned Counsel for the Respondent/Complainant stating that what are all agitated by the learned Counsel for the Petitioners/Accused is to be considered only during trial as valuable defence cannot be considered by this Court as acceptable objection. Therefore, the objection of the learned Counsel for the Respondent/Complainant is rejected.
22/27 https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 4.8. When the Complaint is not taken on file as per the mandatory provision governing taking the private Complaint on file, the Order by the learned Judicial Magistrate taking Complaint on file as “Accused absent. Perused the Complaint taken on file” cannot at all be accepted. Further, there is no specific averments regarding the membership of the Petitioners in the Organisation or supporting documents regarding the claiming of the Respondent in the list of documents. In those circumstances, the reliance placed by the learned Counsel for the Petitioners in
1. CDJ 1997 MHC 392 in the case of J.Jayalalitha Vs. Arcot N.Veerasamy,
2. 1994 SCC Online Kar 293 : 1995 Cri LJ 1922 in the case of Prabhu Chawla and Others Vs. A.U.Sheriff
3. AVS Achuthanand Vs. Kamalanadh is found acceptable to the facts involved in this case.
23/27 https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 4.9. The arguments of the learned Counsel for the Petitioners regarding the undertaking printed by the printer and publisher is as per the Press and Registration of Books Act, 1997. Therefore, the filing of the Criminal Complaint in the local territorial jurisdiction of learned Judicial Magistrate -1, Tirupur is not at all attracted. Further, instead Printer and Publisher and the Author of the Article, the entire Organisation of M/s. Nakkheeran Publications including the Administration Head are arrayed as Accused by the learned Judicial Magistrate -1, Tiruppur. Therefore, the learned Judicial Magistrate-1, Tiruppur had not applied his/her mind to the facts averred in the Complaint. Had he/she applied his/her mind to the averments in the Complaint, he/she would have dismissed the Complaint as not maintainable at Tiruppur.
The ingredients of Section 499 (4) of IPC is not at all found in the averments in the Complaint.
“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 24/27 https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 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 a loathsome state, or in a state generally considered as disgraceful.” 4.10. In the light of the above discussion, if this Petition is dismissed, the Petitioners/Accused had to stand trial causing harassment which is nothing but an abuse of process of Court as explained in reported ruling of the Hon'ble Supreme Court in State of Haryana Vs. Bhajanlal. The ratio laid down in the following cases squarely apply to the facts of the case in J.Jayalalitha Vs. Arcot N.Veerasamy, 1994 SCC Online Kar 293 : 1995 Cri LJ 1922 in the case of Prabhu Chawla and Others Vs. A.U.Sheriff and in the case of AVS Achuthanand Vs. Kamalanadh.
In the result, this Criminal Original Petition is allowed. The proceedings in C.C.No.656 of 2017 on the file of the learned Judicial Magistrate – I, Tirupur is quashed. Consequently, connected Miscellaneous Petition is closed.
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1.The Judicial Magistrate – I, Tirupur.
2.The Public Prosecutor High Court of Madras Chennai 600 104.
26/27 https://www.mhc.tn.gov.in/judis CRL.O.P.No.1963 of 2019 SATHI KUMAR SUKUMARA KURUP, J.
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