Madras High Court
Smt. Dr. Nagarathinam vs M. Kalirajan on 20 April, 2001
Equivalent citations: 2001CRILJ3007
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER M. Karpagavinayagam, J.
1. Before pronouncing the order in this application for quashing on merits, this Court cannot but record a note of anguish over the conduct of Mr. O. Venkatachalam, the learned counsel appearing for the respondent.
2. The details leading to the above observation are given under.
3. M. Kalirajan, the respondent herein filed a complaint on 22-10-1998 in C.C. No. 455 of 1999 before the Judicial Magistrate No. 7, Madurai against Tmt. Nagarathinam, the petitioner herein, the retired Chief Doctor as Head of the Department of Obstetrics and Gynecology in Government Rajaji Hospital at Madurai, stating that she committed the offence of defamation under Section 500, I.P.C. by sending the lawyer notice containing the defamatory remarks.
4. On receipt of summons, the said Tmt. Dr. Nagarathinam filed this petition under Section 482, Cr. P.C. in Crl. O.P. No. 6815 of 1999 for quashing the above proceeding and the same was entertained and stay and notice was ordered by this Court on 8-6-1999. On service of notice in this application, the respondent/complainant filed a counter on 1-10-1999 praying for the dismissal of the above quashing application along with a petition in Cr. M.P. No. 8724 of 1999 requesting for vacating the stay granted in the main application. On 29-11 -1999 this Court while vacating the stay, posted the main petition for final disposal on 30-12-1999.
4A. Accordingly, the main petition came up for final disposal before me in December, `2000 and the case was argued by both the counsel and the matter was adjourned for orders after Christmas vacation. On 2-1-2001 the said matter came up in the list. Mrs. Vijayalakshmi Natarajan, the learned counsel for the petitioner argued the matter afresh. Mr. O. Venkatachalam, the learned counsel for the respondent/complainant submitted his reply.
5. After hearing, this Court put some questions to the counsel for the respondent seeking for clarification of the points raised by the learned counsel for the petitioner. The learned counsel for the respondent immediately retarded by saying "when your Lordship has already taken a decision, there is no use of giving reply." This Court expressed displeasure over the said statement and observed that such a statement would amount to contempt. Then, he expressed apology for such a statement and requested this Court to give further time for preparation to make suitable reply. On such a request, the case was adjourned to 8-1 -2001 and it was again adjourned to 9-1-2001 from 8-1-2001.
6. On 9-1 -2001, the matter was taken up and the learned counsel for the petitioner made further submissions. When the learned counsel for the respondent was asked to make his reply, without making the reply, he requested this Court to transfer this case to some other Court or otherwise he would withdraw his appearance. When the matter was specifically adjourned at the request of the learned counsel for the respondent to enable him to make further preparation for making reply, this Court found no reason either to transfer this case to some other Court or to allow the counsel for the respondent to withdraw his appearance. Therefore, this Court directed the counsel for the respondent to file an affidavit giving the reasons for making such a request. The learned counsel for the respondent requested time for filing the same. Accordingly, the matter was adjourned. On 17-1-2001 the learned counsel for the respondent filed his affidavit requesting for transfer to some other Judge of this Court.
7. On going through the affidavit, this Court found that some incorrect particulars with some derogatory remarks against this Court were given in the said affidavit. So, the learned counsel for the petitioner was directed to file an affidavit in regard to the particulars mentioned in the said affidavit. Accordingly, the counsel for the petitioner also filed an affidavit on 29-1-2001 stating that the circumstances shown in the affidavit filed by the counsel for the respondent are factually incorrect and the request for posting the matter to some other Judge or for the permission to withdraw his appearance would also be not entertainable.
8. In the light of the above situation, this Court having felt that the conduct of Mr. O. Venkatachalam, the learned counsel for the respondent was highly improper and reprehensible, wanted to take assistance of the Amicus Curiae for deciding the propriety of the counsel asking for transfer of the case to some other Judge or seeking permission for withdrawal of his appearance by making disparaging remarks against this Court. Therefore, this Court appointed Mr. A. Packiaraj, the learned counsel as Amicus Curiae and directed Mr. R. Shanmu-gasundaram, the learned Public Prosecutor to assist this Court to come to the proper conclusion in the matter relating to the above conduct of Mr. O. Venkatachalam, the learned counsel for the respondent, by framing the following questions :-
1) Whether at the end of hearing, the learned counsel could be permitted to withdraw his appearance?
2) Whether the counsel would request this Court to transfer the matter to some other learned Judge making some allegations against this Court?
3) Whether the conduct of the learned counsel in making allegations against this Court through his affidavit would be proper and if it is not proper, what would be the appropriate action against the counsel for such conduct?
9. The above order was passed on 29-1-2001. The matter was adjourned to hear the Amicus Curiae, the Public Prosecutor and the counsel for the parties to 5-2-2001. Accordingly, Mr. A. Packiaraj, Amicus Curiae as well as the Public Prosecutor have made their submissions.
10. According to Mr. Packiaraj, the Amicus Curiae, making disparaging remarks against the Court and requesting the Court to transfer the case to some other Judge on that ground would amount to contempt. Moreover, the Advocate cannot withdraw his appearance, once he entered appearance for his client and argued the matter under Rule 12 of the Bar Council Rules.
11. The learned Public Prosecutor also would submit that the conduct of the counsel appearing for the respondent in requesting the Court to transfer the matter to some other Judge on making some allegations would not only be an unbecoming of status of an Advocate but also amount to contempt. The learned Public Prosecutor would further submit that when the counsel for both parties were fully heard and when the matter was posted for orders and thereafter, when the learned counsel for the respondent was given some more time to make further reply, seeking permission for withdrawal of appearance would amount to misconduct on the part of the counsel.
12. After hearing the Amicus Curiae and the Public Prosecutor, this Court felt that it would be appropriate to issue notice of contempt to Mr. O. Venkatachalam. Though initially, Mr. O. Venkatachalam would request this Court for some time to make a reply on the submissions made by the learned Public Prosecutor and the Amicus Curiae, would suddenly change his mind and request this Court not to issue notice of contempt against him, since he would file an affidavit tendering unconditional apology for all the happenings and withdrawing the allegations made in his affidavit dated 17-1-2001.
13. At that stage, Mr. A. Packiaraj, the Amicus Curiae requested the Court to permit him to file such an affidavit, as he seems to realise his mistake. Accordingly, the matter was adjourned to 7-2-2001. On 7-2-2001, Mr. O. Venkatachalam filed an affidavit stating as follows :
I submit that I tender unconditional apology as regards the events that took place on 8-1-2001 in this Hon'ble Court. I withdraw the contents submitted in my affidavit dated 17th January, 2001.
14. After recording the filing pf his affidavit, the matter was further adjourned to hear the counsel for both parties on the point raised in the main application for quashing. Mr. A. Packiaraj, Amicus Curiae was again requested to assist this Court in regard to the merits of the application for quashing.
15. In pursuance of the same, the matter was further adjourned to 19-2-2001. On that day, the learned counsel for the petitioner and the learned counsel for the respondent argued the matter afresh. Mr. A. Packiaraj, the Amicus Curiae also would make his submission by citing various authorities regarding the merits of the petition for quashing by contending that the proceedings are liable to be quashed. Mr. O. Venkatachalam, the learned counsel for the respondent would request this Court to give some more time to make a reply to the submission made by the Amicus Curiae. Accordingly, it was again adjourned to 26-2-2001 at 2.15 p.m. On that date, Mr. O. Venkatachalam, the learned counsel for the respondent made his reply at length. Thereafter, the case was reserved for orders.
16. Before deciding the merits of the main petition for quashing, it would be better to refer to the various questions framed in regard to the conduct of the counsel for the respondent, though ultimately he filed an affidavit tendering unconditional apology for the remarks made by him in his affidavit criticising this Court.
17. As indicated above, the counsel for the petitioner as well as the counsel for the respondent were heard on different dates of hearing. As a matter of fact, when this Court put some question to the counsel for respondent for clarification on 2-1-2001, he stated that this Court has already taken a decision and, therefore, there is no use of giving reply. This Court immediately warned him not to make such a statement, as it would amount to contempt. As noted above, the counsel for the respondent thereafter expressed apology for the same and requested this Court to give some more time for preparation for reply. Only on his request, the matter was adjourned from 2-1-2001 to 8-1-2001.
18. On 8-1-2001, instead of making reply, the counsel for the respondent requested this Court to transfer the matter to some other Court, otherwise he would withdraw his Appearance.''Having felt pained over the statement, this Court asked him as to what are the reasons for making such a request and those reasons could be mentioned in the form of an affidavit. On that score, he sought for some time for filing affidavit. Therefore, the matter was adjourned to a later date. On 17-1-2001, the learned counsel for the respondent filed an affidavit.
19. On going through the affidavit dated 17-1-2001, this Court was shocked to see that the learned counsel for the respondent had made disparaging and derogatory remarks against this Court regarding the manner of the questions put by the Court during the course of arguments. This necessitated this Court to appoint Amicus Curiae in order to find out whether such a request or conduct would be proper and if it is improper, what is the action to be taken against him.
20. At this juncture, it would be relevant to extract the said remarks made against this Court which are the following :-
On 2-1-2001 the said matter came up in the list and the counsel for the petitioner argued the matter afresh. After the counsel for the petitioner argued the matter I prayed for adjournment and at that stage this Hon'ble Court put one or two questions to me regarding the merits of the case...I further submitted that the allegations perse amount to defamation. This Hon'ble Court observed that if my contention has to be accepted it would mean that no advocate could issue notice...Anyhow due to some personal inconvenience, I prayed for adjournment and the matter was also adjourned to 8-1-2001.
After such adjournment this Hon'ble Court pulled up the counsel for the petitioner and advised her as to how she should prepare the points for argument...This Hon'ble Court further observed that the counsel for the petitioner is not assisting the Court. The counsel for the petitioner should mark the relevant portions in the decisions. This Hon'ble Court further observed that even though his Lordships was speaking, with smiles, his Lordships heart was full of sorrow. Thus this Hon'ble Court for about 20 minutes advised the counsel for the petitioner as to how she should assist the Court. I was really shocked to hear such observations. This Hon'ble Court took up the adjourned matter again after about 20 minutes observing that "I would dispose of the matter today itself.
Thereafter, his Lordship put a question to me with regard to the meaning of "publication." From the above observations made by this Hon'ble Court, I genuinely and reasonably inferred that this Hon'ble Court has already taken a decision to allow the petition and, therefore, I submitted that "when your Lordship has already taken a decision, there is no use of giving reply, My Lord.
Immediately this Hon'ble Court got angry with me and observed that this Court would take contempt proceedings against me. This Hon'ble Court further observed that I did not know as to how to answer the question put by this Hon'ble Court.. Even then as a responsible advocate, I expressed sorry and apology...Thereafter the case was adjourned to 8-1-2001 from 2-1-2001 and then to 9-1-2001.
On 9-1-2001...after finishing my work in the 11th Court I rushed to this Hon'ble Court. When I entered into the Court hall of this Hon'ble Court, the counsel for the petitioner was arguing the matter...After the counsel for the petitioner finished her argument, I submitted "I am sorry My Lord; if this Hon'ble Court so pleases, the case may be transferred to some other Court; otherwise, I will withdraw my power, My Lord.
...
I was functioning as Prl. Sessions Judge for several years earning good name. This Hon'ble Court also referred to the same on 2-1 -2001. This Hon'ble Court also observed that it got good opinion about me and the same is lost now. The above remarks observed by this Hoa'ble Court may indicate that I am ignorant of law. Therefore, my conscience does not permit me to argue the matter before this Hon'ble Court... Hence I pray that this Hon'ble Court may be pleased to cause transfer of this case without mistaking me.
21. The above extract would indicate that this Court has already arrived at a conclusion in favour of the petitioner and, therefore, there is no use for making reply before this Court and since this Court has made some observations against the counsel for the respondent, he does not want to argue the matter before this Court and so, request is made through his affidavit to transfer the case to some other Court.
22. As stated above, the counsel for the respondent on 9-1-2001 requested this Court, that too after the arguments of the counsel for the petitioner was over, to transfer the case to some other Court; otherwise he will withdraw his appearance. This aspect has been factually admitted in paragraph 11 of his affidavit dated 17-1-2001. This request would indicate that I shall transfer the matter to some other Court and if I do not make such a transfer, he would not argue before me and would withdraw his appearance.
23. The reading of the entire affidavit would make it clear that the counsel for the respondent wanted to cause aspersion on this Court and on that ground he wants the transfer.
24. The learned counsel for the petitioner in reply would state that putting questions to the counsel for the respondent for clarification on the arguments advanced by the counsel for the petitioner would not be taken to mean that the Court has taken side and when the counsel for the respondent expressed apology for making such a statement on 2-1-2001, seeking transfer would be contrary to his tendering apology made earlier. It is further submitted that a counsel, that too when the matter has been argued fully, cannot ask as of right to transfer the case to some other Court.
25. Keeping in mind the above situation, let me now go into the questions referred to above.
26. As narrated earlier, the counsel for both the parties were heard at length on several dates.
27. The counsel for the respondent stated on 2-1-2001 that this Court has already taken a decision and, therefore, there is no use for reply. On pointing out that he is committing contempt, the learned counsel for the respondent would immediately re-spond by stating that he would tender unconditional apology for his conduct. Only therefore, on his request, the matter was adjourned by giving sufficient time to make further prepartion for reply and posted to 8-1-2001. When such being the case, it would be quite unfortunate on the part of the counsel for the respondent to ask this Court to transfer the case to some other Court; otherwise he will withdraw his appearance.
28. As correctly pointed out by Mr. Packiaraj, the Amius Curiae, an Advocate cannot withdraw appearance, that too after advancing arguments and when the matter was posted for orders, under Rule 12 of the Bar Council of India Rules, which provide thus :
An Advocate shall not ordinarily withdraw from engagements once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his withdrawal from a case, he shall refund such part of the fee as has not been earned.
29. At this stage, it would be worthwhile to refer to the judgment rendered by the Apex Court in R. Balakrishna Pillai v. State of Kerala (2000) 1 Mad LW (Cri) 23 : (AIR 2000 SC 2778), wherein it is held thus (at p. 2782 of AIR) :
In our view, this practice of filing an application by an Advocate that he withdraws his appearance on the date of hearing, only for getting the matter adjourned, requires to be strongly discouraged.
30. In view of the above observation of the Supreme Court, the counsel for the respondent cannot seek for withdrawal of his appearance.
31. Regarding the remarks which are derogatory in nature made in his affidavit dated 17-1 -2001, it is submitted by both the Amicus Curiae and the Public Proscutor that making such remarks and requesting this Court to post the case before some other Judge would amount to contempt.
32. On this aspect, we would refer to some decisions.
33. A Division Bench of this Court in Ranka, M. v. Hon'bls Chief Justice of Tamil Nadu 91 Writ LR 769 would hold thus :
Why should a counsel feel that a judicial order was passed in a particular case against the interest of his clients only because Judges were angry with him? An Advocate no doubt gets his appointment and remuneration from his client. But he is an officer of the Court. He represents the case of his client and he assists the Court and thus his duty comes to an end. He does not have to account for the judgment or order to anybody. It is enough if he discharge his trust fully and faithfully to his client.
34. In the very same decision, the Full Bench decision has been quoted in the following words :
No person can claim that his matter should be heard by a single Judge much less a particular Judge or a particular Division Bench of the Court. The business of the Court will be determined by the Hon'ble the Chief Justice alone, who in his discretion may decide what Judge is to sit alone and what Judges are to constitute different Benches and allotted business in the Court.
35. The Division Bench in the above decision would further hold thus :
It only means, in our view, that (1) the portfolio decision of the Chief Justice is binding on all concerned, but once the portfolio is decided, no one gets the right to ask for a change in it, whether it is a litigant or a counsel.
36. In Ranka, M. v. Hon'ble Chief Justice of Tamil Nadu 94 Writ LR 545, a Full Bench of this Court would make the following observation :
It is not open to any party or counsel to choose his Judge. The petitioner is an Advocate practising in this Court and he cannot claim that the matters in which he is appearing shall not be posted before respondents 2 and 3, who are Judges of this Court...A litigant's right is only to invoke the jurisdiction of the High Court and not to have his case decided by any particular Judge or Judges and that the matter is entirely one of internal arrangement of the High Court with which the litigant has no concern...It is not open to the party or a counsel to pray that his case should not be posted before a particular Judge or Division Bench.
37. In Mahabir Prasad Singh v. M/s. Jacks Aviation Private Ltd. (1998) 7 JT (SC) 579 : (AIR 1999 SC 287), the Supreme Court would make the following observation (paras 2, 17 and 18 of AIR) :
Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigants or by counsel...It is the duty of every advocate who accepts brief to attend the trial and such duty cannot be over-stressed...A lawyer is under obligation to do nothing that shall detract from the dignity of the Court, of which he is himself a sworn officer and assistant. He should at all times pay deferential respect to the Judge and scrupulously observe the decorum of the Court room...At any rate, no advocate can ask the Court to avoid a case on the ground that he does not want to appear in that Court.
38. In Pritam Palv. High Court of Madhya Pradesh 93 SCC (Cri) 356 : (1992 Cri LJ 1269), it has been observed as follow (at p, 1282 of Cri LJ) :-
These calculated contemptuous remarks and the sweeping allegations, which we have extracted above are derogatory in character not only to the dignity of the learned Judges and casting aspersions on their conduct in the discharge of their judicial functions but also wounds the dignity of the Court. It is highly painful to note that the appellant/contemner who is none other than an Advocate practising in the same highest Court of the State after having failed to wrench a decision in his favour in his own cause which he prosecuted as party in person has escalatingly (sic) scandalised the Court by making libellous allegations which are scurrilous, highly offensive, vicious, intimidatory, malicious and beyond condonable limit. Even a cursory reading of the remarks made against the learned Judge of the High Court unambiguously shows that the potentially prejudicial utterances and the outrageous allegations rumbustiously and invectively made by the contemner with malicious design of attempting to impair the administration of justice have struck a blow on the judiciary and also seriously sullied the image, dignity and high esteem which the office of the Judge of the High Court carries with it and thus impeded the course of justice by fouling its source and stream. In our opinion, the incident in question is a flagrant onslaught on the independence of the judiciary, destructive of the orderly administration of justice and a challenge to the supremacy of the Rule of law.
39. The decisions referred to above would give the following guidelines :
(a) On the date of final hearing of the case, Advocate should not withdraw his apperance in order to create a situation to make the Court to adjourn the matter, as it is an unhealthy practice.
(b) The Advocate should not feel that the interest of his client would be affected merely because the Judges were angry with the counsel. The Advocate should realise that he is an officer of the Court and he should assist the Court, even though he represents the case on behalf of the client.
(c) Once the portfolio is decided by the Chief Justice, no one gets the right to ask for a change in it, whether he is a litigant or a counsel. An Advocate practising in the Court cannot claim that the matter in which he is appearing shall not be posted before a particular Judge.
(d) The judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigant or by his Advocate. An Advocate should at all times pay due respect to the Judge and scrupulously observe the decorum of the Court.
(e) Making the contemptuous remarks and the sweeping allegations by the Advocate after having failed to wrench a decision in favour of his client, would not only amount to an attempt to impair the administration of justice but also would be flagrant onslaught on the fearless independence of the judiciary.
40. Bearing these guidelines in mind, if we look at the remarks made by the learned counsel for the respondent in the affidavit dated 17-1-2001, it could be safely concluded that the same would be not only derogatory in character but also would wound the dignity of this Court. Under those circumstances, after hearing the Amicus Cu-riae and the learned Public Prosecutor, this Court was constrained to take decision with great agony to issue contempt notice to the learned counsel for the respondent.
41. It is true, taking action for contempt of Court against an Advocate shall be regarded as an extreme measure. But, to preserve the majesty of law and the proceedings of the Courts are being deflected or interfered with, it becomes the duty of the Court, though painful, to start the cause of taking action for contempt mainly for preserving its dignity. No one including an Advocate who himself is an officer of the Court can claim immunity from the operation of the law of contempt, if his conduct in relation to the Court interferes with or is calculated to obstruct the due course of justice.
42. In M.B. Sanghi v. High Court of Punjab and Haryana 91 SCC (Cri) 897 : (1991 Cri LJ 2648), it has been held as under (at p. 2650 of Cri LJ) :
When a member of bar is required to be punished for use of contemptuous language it is highly painful it pleases none but painful duties have to be performed to uphold the honour and dignity of the individual Judge and his office and the prestige of the institution. Courts are generally slow in using their contempt jurisdiction against erring members of the profession in the hope that the concerned Bar Council will chasten its member for failure to maintain proper ethical norms.
43. In that context, this Court observed after hearing the arguments of the Amicus Curiae and the Public Prosecutor, that there is no other alternative except to issue contempt notice to the counsel for the respondent with pained heart. At that stage, as indicated above, the learned counsel for the respondent requested this Court not to issue contempt notice, as he would file affidavit tendering unconditional apology for what had happened earlier and withdraw his remarks contained in his affidavit dated 17-1-2001. Amicus Curiae also would request this Court to permit him to file such an affidavit.
44. Accordingly, in order to give further opportunity to realise his misconduct, the matter was adjourned. Ultimately, he filed an affidavit on 7-2-2001 tendering unconditional apology and withdrawing the remarks made in his affidavit dated 17-1-2001.
45. The chronological events mentioned above would reveal that the unconditional apology tendered by the counsel for the respondent is for the second time. This Court could very well reject his unconditional apology as not bona fide and take action against him for his misconduct by initiating contempt proceedings. But, it would rather be better to give one more chance to the counsel for the respondent for converting himself by following ethics and etiquette of the profession at least in the future.
46. As quoted by Mahatma Gandhi, "Conversion is the best motto, not coercion." In order to make the counsel for the respondent to get into the process of conversion, in my view, it would be proper not to take action for contempt, though the remarks made by the counsel for the respondent in the affidavit dated 17-1-2001 would clearly amount to contempt, since the counsel for the respondent ultimately filed an affidavit tendering unconditional apology. However, I do not want to go into the question as to whether the same is bona fide or not, in view of the fact that the action of contempt against an Advocate should be a last resort.
47. But, it cannot be disputed that because of the improper conduct of the counsel concerned, there is much inconvenience caused not only to the Court, but also to the counsel for the petitioner. Due to that, this Court was constrained to direct the Amicus Curiae and Public Prosecutor to assist this Court and accordingly they took pains for preparation to deal with the above questions and to make elaborate submission before this Court.
48. Mr. O. Venkatachalam, the learned counsel for the respondent has claimed himself that he was honest as a District Judge. It is quite amazing to see such an experienced retired District Judge who ventured to practice in this Court after retirement has never cared to follow the ethics of the profession. The fact that he was being a honest District Judge would not give any right to him to make disparaging remarks against the Court with a view to see that his case is transferred to some other Court.
49. Virtually when this Court put inconvenient questions to him, he decided to take this case out of this Court and to see that it is posted before any other Judge thinking that his word would be accepted by the other Judges. Having worked for a long number of years as a District Judge and being in High Court practice for more than two years, it is painful to see that the counsel for the respondent has stopped to this level of filing an affidavit making unsavoury allegations against this Court. This is not only a thorough misconduct on the part of the counsel but also high handed act inflicting wound to the dignity of this Court.
50. Under these circumstances, it would be appropriate for this Court to impose sufficient costs on Mr. V. Venkatachalam, the counsel for the respondent, which, in my view, would meet the ends of justice for his act in causing inconvenience to every one including this Court. Therefore, Mr. O. Venkatachalam, the learned counsel for the respondent is directed to send Rs. 10,000/-(Rupees Ten thousand only) through Demand Draft to the Prime Minister's Gujarat Earth Quake Relief Fund within one month from the date of this order, in compliance of which a copy of the said D.D. should be filed before this Court.
51. Let me now come to the points raised by the counsel for the petitioner seeking for quashing of the proceedings.
52. In this petition, the proceedings out of the private complaint filed by Kalirajan, the respondent as against the petitioner-Tmt. Dr. Nagarathinam, under Section 500,1.P.C. is sought to be quashed raising two important grounds, namely (1) the imputation was made in good faith, (2) there is no publication.
53. Let us at the outset see the gist of accusation contained in the complaint:
Kalirajan, the complainant is a former M.L.A. studying M.C.H. in Madurai Medical College. In regard to the publication of the press interview given by the complainant against Mrs. Dr. Nagarathinam, she sent a lawyer notice on 17-7-1998 containing the accusation against the complainant, which is defamatory. The said imputation is as follows :
The third (Kaliraj an) among you being an Ex. M.L.A. is playing politics in the profession. The third among you do not seem to respect any professional ethics and he is spoiling the name of his Alma Mater with false allegations only due to personal vendetta.
This notice was received by the complainant and when the same was read out, his friends who happened to be there at that time also came to know about the contents and in their estimation his reputation has gone down and, therefore, the accused committed defamation under Section 500, I.P.C.
54. According to the counsel for the petitioner, on 8-5-1998, the complainant Kalirajan gave a press interview to Nakkeeran making some false allegations against the petitioner/accused regarding her illegal functioning as Head of the Department in the General Hospital, Madurai and, therefore, on 17-7-1998 a lawyer notice was sent warning the Editor, Reporter and the complainant not to make and publish any such false report and asking them to tender apology and as such, this would not amount to defamation, as the said lawyer notice was sent through registered post only to him and the same was not meant For reading by others and as such, it is not publication. In elaboration of his point, the counsel for the petitioner argued at length in seeking for the quashing of the above proceedings.
55. As far as the first point is concerned, it is to be stated whether the alleged imputation has been made in good faith or not is not a matter to be gone into by this Court under Section 482, Cr. P.C. The said point is purely a question of fact. This could be dealt with only by the trial Court on conclusion of trial on the basis of materials placed before it. Therefore, I do not find any merit in the first point. Accordingly, the first point is rejected.
56. However, the second point regarding publication requires consideration. While dealing with this point, we have to see whether the alleged imputation has been published or not.
57. As noted above, Mr. Packiaraj the Amicus Curiae, was asked to assist this Court with regard to the above point. Mr. Packiaraj would submit that the sending of a registered notice by a lawyer on behalf of the accused to the complainant would not amount to defamation, as it cannot be construed to be publication, which is the main ingredient of Section 500. He would cite some authorities as well.
58. The counsel for the respondent would contend that this is a matter for trial and at this stage, the proceedings cannot be quashed. He would also cite some authorities.
59. In the light of the above submissions, let us now come to the relevant sections of the Indian Penal Code.
60. Section 500, I.P.C. is a penal section which would deal with punishment for defamation. The word 'defamation' is defined in Section 499. Section 499 would provide thus :
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 expected, to defame that person.
61. This section consists of the following three ingredients :
1) making or publishing any imputation concerning any person;
2) such imputation must have been made by
(a) words either spoken or intended to be read or
(b) signs
(c) visible representation
3) such imputation must have been made with intention of harming or knowledge or reason to believe that will be harming the person concerning whom it is made.
62. A close reading of the above section would make it clear that the intention to cause harm is the most essential "sine qua non" of an offence under Section 499, I.P.C. The intention to harm would mean, to harm his reputation in the estimation of others. The reputation is being lowered would come in only when the imputations are made published. Thus, it is clear that the publication with intention of harming the reputation of the person concerned to make others to know the imputation is the most important ingredient to make out an offence under Section 500, I.P.C.
63. Now, let us refer to some of the decisions relating to publication.
64. It is held in B.P. Bhaskar v. B. P. Shiva 93 Cri LJ 2685 (Madras) by Hon'ble Janarthanam, J. (as he then was) as follows (para 6) :
There could not have been any pale of controversy that the so-called scurrilous allegations or imputations contained in the notice exchanged between the parties can, by no stretch of imagination, be construed to be 'publication in the eye of law.
65. The Apex Court has held in Bilal Ahmed Kaloo v. State of Andhra Pradesh (1997) 3 Crimes 130 : (1997 Cri LJ 4091) as under (at p. 4094 of Cri LJ) :
The words "makes or publishes any imputation" should be interpreted as words supplementing to each other. A maker of imputation without publication is not liable to be punished under that section.
66. In the decision rendered by the Kerala High Court in P.R. Ramakrishnan v. Subbaramma (AIR 1988 Ker 18 : 1988 Cri LJ 124). Hon'ble K. T. Thomas, J. (as he then was) answered such a question as follows (para 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 Section 499 of the I.P.C., the imputation should have been made or published "whoever makes or publishes any imputation" are the relevant words employed in the 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.
67. It is held in Miss Violet Wapshare v. Miss Maureen Froud 70 Mad LW (Cri) 4 as follows :
The word "publish" in Section 499,1.P.C. is used in its etymological sense as connoting "to make public" or "to make known to people in general". Since "publication" implies communication to the public or the people, it follows that it is not publication if the libeller merely communicates his libel to the person defamed. Such communications may amount to an insult and be punishable as such, but it is not publication for which he would be held liable under Section 499, I.P.C.
68. The above decisions would give out the following guidelines :
(1) The allegations for imputations contained in the lawyer notices exchanged between the parties cannot be construed to be the publication.
(2) The words "makes" or "publishes" would conjunctively connote "to make public" or "to make known to people in general".
(3) If the libeller merely communicates his libel to the person defamed, it is not publication.
(4) The attack on the reputation of the complainant will follow when the words calculated to harm his reputation are communicated to some third party, that is, to some person other than the person defamed.
(5) A letter enclosed in the envelop and sent to the complainant by registered post, though sent on behalf of the accused by his counsel, would not amount to publication.
69. In the light of the above guidelines, we have now to see whether the alleged imputation referred to in the complaint has been published or not.
70. In this case, the notice dated 17-7-1998 sent by the petitioner referred to in the complaint would show that it was sent through R.P.A.D. (registered post with acknowledgment). It is also mentioned in the first paragraph of the notice as "under instructions from my client abovenamed, I am issuing the following registered notice regarding the publication of an article about Madurai Government Rajaji Hospital and about my client in your Nakeeran Magazine dated 8-5-1998". Therefore, there is no dispute in the fact that the said notice was sent in an envelope by registered post by the petitioner to the complainant.
71. Thus, it is clear that the words "complained of were only communicated by the petitioner to the complainant, who is stated to have been defamed. As noted above, there will be no publication, if the complainant alone is informed of the defamatory words. A communication to the defamed himself will not be a publication.
72. It is not the case of the complainant that the defamatory matter has been published by the petitioner by communicating the same to same person other than the person concerned to whom it is addressed. In this fact situation, it can be held that the essential requisite for action of defamation, namely publication of the defamatory words, is absent.
73. There is yet another aspect of the matter. According to the complainant, when the notice was received by him and read out, his friends, who happened to be there at that time also came to know about the contents and in their estimation, his reputation has gone down. The relevant portion of the complaint is as follows :
[Vernacular matter omitted]
74. In the light of the above averments in the complaint, we have to see whether the publication as contemplated in Section 499, I.P.C. was made, as the contents of the notice was communicated to the friends of the complainant. *
75. At this juncture, it would be appropriate to refer to some of the decisions which deal with the similar fact situation.
76. It is held in Sukhdeo Vithal Pansari v. Prabhaker Sukhdeo Pansari 74 Cri LJ 1435 (Bombay) as follows :
It is no publication at all because it was a notice in reply to the notice of the complainant and it was sent through a lawyer and it was therefore a private and privileged communication without any publication.
77. It is held in Mounagurusamy v. Palanichamy (1994) Mad LJ (Cri) 216 as follows :
Unless a person makes or publishes any imputation concerning and person intending to harm or knowing or having reason to believe that such imputation will harm, there is no offence of defamation. Now, in the present case, according to the complainant, the defamatory words are in a letter sent by the accused to him and admittedly that letter came in a postal cover. Clearly, therefore, that letter was intended for the complainant to read and not any other person. Certainly, the accused have not made any publication of that letter. It can only be said that they made the imputation in the letter but it cannot be said that they intended that anybody else to read it. This being the position, the accused cannot at all be said to have intended to harm, or knew or had reason to believe that the imputation will harm, the reputation of the complainant. If two other persons read that letter as stated by the complainant, it is surely an accident and certainly from this it cannot be said that the accused intended to harm or knew or had reason to believe that the imputation would harm the reputation of the complainant.
78. In Ramaswami Iyer v. Rajeswari 66 Mad LW (Cri) 78 (Sum), this Court would observe thus :
The letter was sent in an envelop intended solely for the purpose, Labour Officer to look into the allegations made in the letter. The evidence was that this letter was read by other persons only when it was forwarded by the Labour Officer to the Chairman. The appellant was in no way concerned with the letter having been sent by the Labour Officer to the Chairman. Under the circumstances, it cannot be said that the appellant had published the defamatory allegations with the intention to defame the respondent.
79. From the reading of the above decisions, the following principles would emerge out:
(1) In order to constitute an offence under Section 500, I.P.C., mere making an imputation concerning a person is not enough. It must be alleged and proved that the writing of the defamatory was intended to be read by a person or persons other than the person to whom it is written.
(2) When the defamatory words are in a letter or notice sent by the accused to the complainant through postal cover, the letter was intended for the complainant to read and not any other person. It cannot be said that the complainant intended by sending the letter that anybody else to read it.
(3) If other persons happened to read the letter by chance, it is surely an accident. Certainly, it cannot be said that the letter was sent with intention to harm the reputation of the complainant in the estimation of outsider who read that letter.
80. The above ratio would clearly reveal that in order to maintain the complaint on defamation, the complainant has to allege in the complaint that the accused knew or ought to have known that the letter or notice would be read by some person other than the complainant. It is also necessary to show that the writer intended his defamatory writing to be read by person or persons other than the addressee or at least, the accused ought to have known that the letter was likely to be so read by a third person or persons.
81. In the light of the above legal situation, if we look at the facts of the case, it is clear that no such averment has been made in the complaint against the petitioner. Admittedly, in the instant case, the petitioner sent a lawyer notice only in an envelope through registered post. Therefore, the intention of the accused to communicate the alleged imputation is only to the complainant.
82. It is mentioned in the complaint that the friends who came to his room also read out that notice and thereby, his reputation was lowered down in their estimation. But, it is not alleged in the complaint that the accused intended, while sending the alleged imputation to the complainant to be read by his friends. As such, it cannot be inferred that the accused intended to communicate the said imputation to his friends.
83. In the light of what is stated above, in any angle, it cannot be said that there is a publication which is a main element for the offence of defamation.
84. Mr. O. Venkatachalam, the learned counsel for the respondent would cite the authority (2000) 8 SCC 115 : (2000 Cri LJ 4665) (Mahavir Prashad Gupta v. State of NCT of Delhi), in which it is held that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and the too in the rarest of rare cases and that the Court would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint.
85. The above principle is a well settled one and there cannot be any dispute over the said proposition. But, in the very same decision, it is held that undoubtedly there could be interference in rarest of rare cases, however, one such case would be when the complaint itself does not disclose any offence.
86. Therefore, if this Court, comes to the conclusion that the complaint does not disclose the offence of defamation, it can certainly invoke inherent powers to quash such proceedings, as the case on hand would come under the rarest of rare case.
87. Furthermore, as pointed out by Mr. Packiaraj, the Amicus Curiae, where on the facts of the case, this Court is satisfied that there is no case against the accused and that the further prolongation of the prosecution would amount to harassment of the process of the Court, it is the duty of this Court to interfere under Section 482, Cr. P.C. and put an end to the abuse by directing the quashing of the prosecution.
88. In view of the above situation, the |continuance of the above proceedings would be tantamount to abuse of process of Court and as such, the proceedings arising out of the private complaint under Section 500, I.P.C. are liable to be quashed, as the complaint does not disclose the offence of defamation, as the main ingredient of the offence, namely "publication" is conspicuously absent.
89. In the result, the proceedings are quashed and the main petition is allowed.
90. Before parting with this case, this Court places on record its full appreciation to the services rendered by Mr. A. Packiaraj, Amicus Curiae (as he then was), who helped this Court to arrive at the proper conclusion both in regard to the conduct of Mr. O. Venkatachalam, the learned counsel for the respondent and also in regard to the point for quashing. Similarly, the assistance rendered by Mr. S. Shanmughasundaram, the learned Public Prosecutor, who pointed out that the conduct of the counsel for the respondent being improper has to be suitably dealt with, is also recorded with appreciating note. It has to be further noticed the appreciable gesture shown by Mr. Packiaraj, the Amicus Curiae (as he then was) by requesting this Court to entertain the affidavit of the counsel for the respondent tendering unconditional apology and to admonish him in. view of his realisation of the mistake, though he initially pointed out with emphatic note that the conduct of the counsel for the respondent would amount to contempt.