Kerala High Court
M.P. Narayana Pillai And Ors. vs M.P. Chacko And Anr. on 11 July, 1986
Equivalent citations: 1986CRILJ2002
ORDER S. Padmanabhan, J.
1. This petition under Section 482 of the Cr. P.C. was filed by the three accused in C.C. 138/85 on the file of the Judicial First Class Magistrate, Vaikom for quashing the original of Ext. P1 complaint in that case as an abuse of process of court in order to secure the ends of justice. Ext. P2 is copy of the sworn statement of the complainant recorded by the Magistrate. Complainant is the 1st respondent and the State of Kerala is the 2nd respondent.
2. First petitioner is a columnist residing in Bombay, though he is a Malayalee. Second and 3rd petitioners are respectively the Editor and Publisher of Kalakaumudi, a Malayalam Weekly published from Trivandrum. In the two issues of the weekly (Exts. P3 and P4) an article written by the 1st petitioner was published in two parts under the caption "Syrian Christians and National Integration". Complainant claimed himself to be a member of the Syrian Christian Community and he says that certain imputations contained in part-II of the article are defamatory to his community and as such defamatory to him also. That is how he claims to be an aggrieved person. The complaint was filed for offences punishable under Sections 500 and 501 of the I.P.C
3. As already stated the publication was made in two parts under the same caption. The article contained in two parts form a compact and indivisible whole. It contained compliments to the Syrian Christian Community as a whole. Their great and proud ancestry was referred to and they were blamed and alerted for their inactions, pointing out the raw deal meted out to them by the political forces in power. Their rich legacy of culture and achievements were also pointed out and referred to. The article lamented their inaction and the consequent unemployment and poverty. It was pointed out that this state of affairs forced some of their womenfolk to migrate abroad in search of employment, in which process some ladies among them were even forced to resort to prostitution for earning a living. It was the further assertion in the article that poverty and consequent inability to give away daughters in marriage forced many parents to send their daughters to nunneries. At the same time priests and nuns were praised for doing great service to mankind over and above spiritual service to the society. The article also contained some statements indicating that Mother Theresa belonging to the Syrian Christian Community is doing her missionary work for publicity alone while nuns in many institutions are doing silent selfless service to the society without any desire for publicity. The allegation of the 1st respondent in the complaint is that there are several scandalous imputations coupled with irony and sarcasm intended to harm the reputation of the Syrian Christian Community as a whole. The counsel for the 1st respondent stated that the three scandalous imputations in the complaint are (1) some Syrian Christian girls working abroad are engaged in prostitution for livelihood, (2) Syrian Christian ladies are being sent to the nunneries on account of the financial incapacity of their parents to give them away in marriage, and (3) Mother Theresa who is considered to be a living Saint of Christian Community is alleged to be doing missionary work for publicity alone.
4. There is much force in the contention of the petitioners that the article in two parts had to be read as a whole by the 1st respondent before filing the complaint. He ought to have understood the circumstances under which the alleged imputations were made. The impact and effect of the imputations, if any, had to be considered in the background of the entire facts and circumstances stated therein. The bane and the antedote ought to have been considered together by the 1st respondent. If in one part of the publication there is something disreputable but it is removed by the other parts and the conclusions, then the disreputable part alone cannot be taken out in the process of picking and choosing in order to venture a prosecution for defamation. The circumstances under which and the portions of the article wherein the alleged defamatory imputations occur and their impact in the mind of the reader on reading the article as a whole had to be considered. It appears that the 1st respondent has not even seen the first part of the article which contains ever so many encomiums to the community. He only picked and chose certain portions of the second part without taking into account what exactly the writer meant by the article as a whole. It may not be correct to consider the alleged imputations in isolation bereft of the remaining portions of the article and their effect on the alleged imputations. Anyhow, I do not wish to elaborate on that aspect because in a petition under Section 482 it is not necessary to deal at length with those aspects. Those aspects may have to be considered in detail only during trial. I adverted to that aspect only because arguments were advanced before me.
5. At the outset the counsel for the 1st-respondent told me that in such a situation as has arisen in this case this Court will not be justified in invoking the inherent powers for the purpose of quashing the criminal proceedings. In this case there is no question of giving effect to any order. Inherent powers saved under Section 482 of the Cr. P.C. are invoked in this case only to prevent an alleged instance of abuse of the process of court in order to secure ends of justice. Inherent powers of the High Court are not the creation of any provision in the Cr. P.C. or any other statute. That power is there without and in spite of any provision. The main object is to prevent abuse of the process of court and thereby to secure ends of justice in the absence of specific statutory provisions. There cannot be any doubt that inherent powers of the High Court could be exercised in order to quash proceedings in a proper case for preventing the abuse of process of court or otherwise to secure ends of justice. It may not be possible, desirable or expedient to lay down hard and fast rules or exclusive situations governing exercise of the power. In each case exercise of the power will depend upon facts and circumstances and exigencies. If there is a legal bar against the institution and continuance of a criminal proceeding in respect of an offence and the prosecution and cognizance were in violation of that bar, then it evidently involves an abuse of process justifying exercise of the inherent power. Where the allegations in the complaint or the first information report, even if taken as true in their entirety, will not constitute the offence alleged, then also the High Court can exercise the inherent power because in such cases there may not be any question of appreciating the evidence in order to decide whether any abuse of process is in existence. In this case the allegation is that even if the averments in the complaint as a whole are taken as correct no offence as defined under Section 499 of the I.P.C. is disclosed and the 1st respondent is not a person aggrieved by the offence and as such competent to prosecute under Section 499 of the Cr. P.C.
6. Section 199 of the Cr. P.C. contains a mandatory provision. It says that no court shall take cognizance of an offence under Chap. XXI of the I.P.C. (Sections 499 to 502 come under Chap. XXI) except upon a complaint made by some person aggrieved by the offence. If the complaint is filed by one who is not an aggrieved person the cognizance of the offence will not only be incompetent, but the trial and conviction would be void. The judicial act of taking cognizance in violation of the bar itself will be an abuse of the process of court. So also taking cognizance without applying the judicial mind to see whether the allegations constitute the offence will also amount to an abuse of process of court. If these contentions are correct, this is evidently a case in which this Court is not only justified but is also bound to exercise the inherent power.
7. One of the contentions of the petitioners is that the Magistrate acted illegally in taking cognizance of the offence when he had no territorial jurisdiction to entertain the complaint. That contention does not appear to be correct. It is true that the Kalakaumudi Weekly is printed and published from Trivandrum. But in order to maintain a prosecution for defamation in a particular court there need only be publication of the libel within the jurisdiction of the court where the complaint is filed. Jurisdiction has to be decided on the basis of the allegations in the complaint for the purpose of a proceeding under Section 499. The very allegation of the 1st respondent in the complaint is that it was published at Vaikom also and it was from there that he got and read a copy of it. Being a Weekly publication intended to be read by people, it is enough for the complainant to show that the publication was delivered within the limits of the territorial jurisdiction of the court in order to invest that court with jurisdiction. It need not be shown that the defamatory matter was seen or read by any particular person within the jurisdiction of that court. Since the Weekly is being printed and published for the purpose of reading by the people when it is shown that it was published it could be presumed that it was read.
8. In order to bring the defamatory imputations within the meaning of Section 499 of the I.P.C. ill-Will or malice on the part of the writer or publisher is not necessary to be proved. The complainant also need not prove that he suffered on account of the publication. It is enough if it is shown that the accused intended or knew or at least had reason to believe that the defamatory imputation made by him would harm the reputation of the complainant. Every reasonable man will be presumed to have intended the normal and natural consequences of his action. Whether harm is actually caused or not is not a condition precedent for a successful prosecution for defamation. But it is a condition precedent to maintain an action for prosecution that the complaint is by a person aggrieved of the offence.
9. The normal and general rule is that any citizen has the right to bring offenders to justice irrespective of the question whether he is personally aggrieved by the offence or not. Every crime is considered an offence against the State and Society at large. Citizens have not only the right but the duty also in seeing that offenders are brought to justice. But the Legislature in its wisdom wanted to place restrictions on this right in specified cases for obvious reasons. Definitely it is on grounds of public policy with which we are not concerned here. Section 199 of the Cr. P.C. is one such provision where there is not only the restriction but also a prohibition against the courts from taking cognizance otherwise than by a complaint from a person who is aggrieved by the offence. One of the objects is to prevent the abuse of the process of criminal courts and to avoid harassment to individuals. Satisfaction of that condition is therefore a matter affecting the jurisdiction of the court in the matter of taking cognizance. It is an exception to the general rule and is mandatory so that violation will result in illegality and want of jurisdiction making the cognizance itself illegal.
10. That leads us to the question whether the first respondent/complainant is an aggrieved person within the meaning of Section 199 of the Cr. P.C. In order to settle that controversy we will have to look into Section 499 of the I.P.C. which defines defamation. What is necessary is making or publishing any imputation concerning any person intending to harm, or knowing or having reason to believe that it will harm his reputation. There is admittedly no imputation made or published concerning the 1st respondent individually. Therefore, Section 499 read along with the Explanation-2 alone could be considered. Under Explanation-2 it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Here, the imputations are said to be concerning Syrian Christian Community as such and the 1st respondent claims that as a member of that community he is also defamed and therefore he is an aggrieved person.
11. Here we are not concerned with any company but only with association or collection of persons as such. What Explanation-2 to Section 499 IPC speaks of is an association or collection of people as such capable of being defamed. Such persons must be a definite and determinable body. Then only the imputations could be said to relate to its individual members or components. If only there is some definite body of persons capable of being identified, it could be said that the defamatory matter applies to all of them. Only if there is a definite association or Collection of persons capable of being identified it could be said that the imputation affects all of them and any member of the class could say that as a member of that class the imputation is against him also personally. When an indefinite and unascertainable body of people is defamed it may not be possible to single out individuals and say that they are also defamed. Imputations should be capable of being located as aimed at particular individuals or collection of individuals capable of being ascertained. The imputations must relate to all of them also. There cannot be defamation against a community as such. Community as such may not have a reputation, but the reputation will only be of individual members. When the defamatory matter affects each and every member of an ascertainable class or group each of them or all of them could set the law in motion. If actually a collection or class of people is ascertainable with definiteness it could be said that the specific group of persons as distinguished from the rest of the community-was defamed. Identity of the collection of the people will have to be established in relation to the defamatory imputations. Where persons in the association or collection as such are ascertainable and the words or imputations are shown to be against all the persons in the association or collection as such, any one of the members could make a complaint. The cardinal rule is that the offence consists in using language which others knowing the circumstances would reasonably think to be defamatory of the person complaining of and injured by it.
12. With these principles in view let us consider whether the case in hand specifies the test of Explanation-2 to Section 499 of the I.P.C. The imputations are alleged to be against the Syrian Christian Community as a whole and the complaint was filed by the 1st respondent only in his capacity as a member of that community and not as a person who was individually affected by the imputations. His counsel represented that the question whether Syrian Christian Community is an identifiable group or not cannot be considered in a proceeding under Section 482 of the Cr. P.C. and it has to be decided by the Magistrate on evidence during trial. Unfortunately, I am not able to subscribe to that view. Syrian Christians are an immigrant community which is a fluctuating mass, the members of which could be found throughout the world even though they are' mainly concentrated in Kerala. It is an unascertainable body of persons which cannot be brought within the meaning of association or collection of persons as such mentioned in Explanation-2 to Section 499 of the I.P.C. In the decision in G. Narasimhan v. T. V. Chokkappa , the Chairman of the Reception Committee of a conference organised by the Dravida Kazhagam was the complainant. The complaint was in respect of a news item regarding a resolution passed in the meeting. The conference consisted of a large number of party sympathisers, leaders and outsiders. It was held, applying the test that collection of people must be identifiable, definite and determinate in relation to the imputations, that the conference was not an identifiable or definite body so that all those who attended it could be said to be its constituents who, if the conference was defamed, would in their turn be said to be defamed. The complainant who was the Chairman of the Reception Committee of the conference was therefore held to be not an aggrieved person. In Krishnaswami v. C. H. Kanaran, 1971 Ker LT 145 the Marxist Communist Party as a collection of persons as such was held to be an unascertainable body. In Raj Kapoor v. Narendra Desai 1974 15 Guj LR 125 the imputations were against the Bhangi community in general. It was held that the imputations would not amount to defamation because they were not directed against any particular group or members of that community which could be identified. It was further observed in that decision:
There was no imputation against the complainant as an individual. If he felt that as a member of the Bhangi community, he was defamed, that would not entitle him to maintain a prosecution for defamation unless the imputation was against him personally.
13. The principle is squarely applicable to the facts of the present case also. In this case also the only allegation of the first respondent is that he is aggrieved by the defamatory imputation against his community and not against him individually. In K. M. Mathew v. Balan, 1984 Ker LT 893: (1985 Cri LJ 1039) the imputation was against some leaders of the teachers who were on strike. It was held that all the leaders will hot suffer their reputation and a member of an unidentifiable group was not entitled to maintain an action. In this case even if Exts. P3 and P4 contained any defamatory imputations, since the allegation of the first respondent is only that they are against the Syrian Christian Community as a whole which is not an association or collection of an ascertainable body of persons, no member of the community could say that he was individually defamed. There are no defamatory words or imputations which could be said to have been levelled against the first respondent. It follows that he cannot claim to be an aggrieved person. Hence a complaint filed by him was incompetent under Section 199 of the Cr. P.C.
14. Even the alleged defamatory imputations are only against some among the Syrian Christian girls working abroad and some of the Syrian Christian ladies who became nuns. Probably their families also could be said to have been defamed. These girls or the ladies who became nuns or their families form only a section of the Syrian Christian Community which itself is unascertainable. They are only unascertainable and indefinite individuals or groups among the Syrian Christian Community. The complainant cannot say by any stretch of imagination that he will come within that group so that he could claim that he was individually defamed. There is no imputation against the Syrian Christian Community as such, even taking for granted that the first respondent was competent to file a complaint as a member of that community or on behalf of that community. Mother Theresa is a living Saint and even if there are defamatory words or imputations against her, the 1st respondent has no locus standi to file a complaint. Mere membership of the Syrian Christian Community which is said to have been defamed, does not render the 1st respondent a "person aggrieved".
15. The complaint is ill-conceived and ill-advised. It was more actuated by publicity motive than by the motive of vindicating justice. A person who was interested in vindication of justice alone would not have filed such a complaint. The Magistrate has taken cognizance without caring to ascertain whether the complainant is an aggrieved person and if so even accepting all the allegations in the complaint to be correct whether it amounts to the offence alleged. The action of the Magistrate in taking cognizance and issuing process amounts to abuse of the process of court. It is the duty of this Court to avoid the harassment of an unnecessary trial. Therefore there cannot be any dispute that this Court is not only entitled but is also bound to interfere in order to secure the ends of justice by preventing the abuse of process of court.
The Crl. M.C. is therefore allowed and the complaint in C.C. 138/85 on the file of the Judicial First Class Magistrate, Vaikom is hereby quashed.