B.Sreenivasan v. M.K.Thirumurugan

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 3.07.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.OP.No.3278/2006Crl.MP.No.796/2006B.SreenivasanPetitioner VsM.K.ThirumuruganRespondentPrayer:- This Criminal Original Petition is filed to call for therecords in CC.No.708/2004 on the file of the Judicial Magistrate I,Coimbatore and quash the same.For Petitioner:Mr.Sundar MohanFor Respondents:Mr.Murugappan for M/s.AL.GanthimathiORDER This Criminal Original Petition is filed to quash thecomplaint in CC.No.708/2004 on the file of the Judicial MagistrateI, Coimbatore. The Petitioner is arrayed as the accused in thecomplaint.2. The Respondent had filed the complaint inCC.No.708/2004 for the offences punishable under Sections 182 and500 of IPC. The allegation in the complaint is that the Respondentis practicing as a Lawyer and the Petitioner is his neighbour andin order to wreck vengeance on the Respondent, on 26.8.2004 at10.30 p.m. the Petitioner, gate crashed into the compound wall ofhis house along with a man in police uniform and started shoutingat the Respondent. As the Respondent was shocked on seeing thebehaviour of the Petitioner and other men in police uniform, he didnot open the door and therefore, both the Petitioner and the policeman left the place. Since he apprehended that a complaint wouldhave been given against him, he verified with the concerned policeand came to know about the complaint given by the Petitioner to theThudiyalur Police Station on 28.8.2004, suspecting that theRespondent had caused damage to his drainage pipe. Thereafter, itis said that the Respondent moved the higher officers in the PoliceDepartment and on enquiry, the complaint given by the Petitionerwas dropped on the ground that it is false. Therefore, theRespondent had preferred the present complaint against thePetitioner for the offences under Sections 182 and 500 of IPC,which is registered as CC.No.708/2004. https://hcservices.ecourts.gov.in/hcservices/

3. The Petitioner challenges the cognizance taken by theMagistrate for the offences punishable under Section 182 and 500 ofIPC on the following two grounds:=(1) There is an express legal bar engrafted in Section195 of Cr.PC, prohibiting the entertainment of acomplaint for the offence under Section 182 of IPC,without a complaint in writing of a public servant asrequired by Clause (a) of Sub clause (1) of Section 195of Cr.PC and(2) a protection is given to the Petitioner byException 8 to Section 499, if the accusation ispreferred in good faith to a person in authority, whichwould not attract an offence under Section 500 of IPC.4. The Respondent has alleged in the complaint that thePetitioner has given a false information to the police officer,Thudiyalur Police Station on suspicion that the Respondent hadcaused damage to his drainage pipe and thus induced the policeconcerned to visit the house of the complainant in the night hoursto enquire into the said complaint. It is also stated in thecomplaint that a false complaint has been given by the Petitionerand used the power of the Police to take action on such a falsecomplaint against the Respondent and therefore, the said act of thePetitioner is punishable under Section 182 of IPC.5. Section 182 of IPC has to be read in conjunction withSection 195(1)(a) of Code of Criminal Procedure, which requires acomplaint for offences under Sections 172 to 188 of IPC to be filedby the public servant concerned or by some other public servant,to whom he is administratively subordinate. Admittedly, in thiscase, the complaint is not given by the concerned police official,who registered the case or any other police officer, who had cometo know that it is a false information. 6. The object and scope of Section 195 (1)(a) is welldefined by the Honourable Supreme Court in the case State of UP Vs.Mata Bhikh and others (1994-SCC-Cri-831), that the object of thesaid section is to protect a person from being vexatiouslyprosecuted upon inadequate materials or insufficient grounds byperson actuated by malice or ill-will or frivolity of dispositionat the instance of private individuals for the offences specifiedtherein. The relevant passage is extracted as here under:-"The provisions of this section, no doubt, aremandatory and the Court has no jurisdiction to takecognizance of any of the offences mentioned thereinunless there is a complaint in writing of 'the publicservant concerned' as required by the section withoutwhich the trial under Section 188 of the IPC becomevoid ab initio." https://hcservices.ecourts.gov.in/hcservices/

7. A complaint in writing by the police officer concernedis a condition precedent for the Magistrate to take cognizance ofan offence under Section 182 of IPC and that condition must bestrictly complied with. On the complaint given by the Respondent,who is not a public servant, the Magistrate has taken cognizanceand failed to notice the prohibition contained in Section 195 ofCode of Criminal Procedure. The court was not competent to takecognizance and it would be only no cognizance in the eye of law.Hence, the criminal proceedings stand vitiated on the said ground.8. Besides that, the averments made in the complaint donot attract an offence under Section 182 of IPC. In this case, itis alleged in the complaint that the Petitioner gave a falseinformation to the police that the Respondent had damaged thedrainage pipe and thus he is said to have induced the police totake action. It is alleged by the Respondent that the saidcomplaint was enquired into by the Deputy Superintendent of Police,who in turn informed him that it was a false complaint.9. Section 182 of IPC stipulates that a person givingfalse information should have knowledge that it is false orbelieved to be false intending, thereby to cause the public servantconcerned to do some act. A statement or report to the police onsuspicion that the Respondent has committed an offence cannot beconstrued as an information false to the knowledge of thePetitioner, even if the said information was unfounded. There mustbe positive knowledge or belief on the part of the Petitioner thatit is false. The suspicion entertained by the Petitioner that theRespondent had damaged the drainage pipe due to previous enmitywould only show that there was some reasonable ground for thePetitioner to believe the information to be true.10. In the complaint, the Respondent has stated that theDeputy Superintendent of Police, who conducted enquiry informed himthat it is false. Only based on that, he had made accusationagainst the Petitioner under Section 182 of Indian Penal Code. Nosuch material is pressed into service by the Respondent along withthe complaint. Even assuming it to be true, it can only be anopinion of the Officer and it cannot be construed as a legalevidence and therefore, it could not be the basis of a finding.Therefore, even on the said ground, the complaint cannot stand tolegal scrutiny.11. The Respondent has averred in the complaint that thePetitioner has made defamatory insinuations in the false complaintgiven by him to the Thudiyalur Police Station on 26.8.2004 andthus, he is punishable under Section 500 Code of CriminalProcedure. To constitute an offence under Section 500 of IPC, itmust be shown that the accused has made imputation by words, whichintended to harm the reputation of the complaint and further heknew or had reason to believe that it would do such harm. https://hcservices.ecourts.gov.in/hcservices/

12.The learned counsel for the Petitioner would refer toEight Exception to Section 499 of IPC and submit that it would notattract the ingredients of offence of defamation, if accusation ismade in good faith to an authorised person or Authority. He wouldfurther contend that if without any malice if a person makes adefamatory charge, which he bona fidely believes to be true againsta person whom he believes to have caused the injury, to anAuthority whose duty is to enquire into and redress such injury,the occasion is privileged because the person making the charge hasan interest in its subject matter of the accusation and the personto whom the complaint is made has a duty to discharge in respect ofit. 13. There is every force in the contention of the learnedcounsel for the Petitioner. In determining as to whether thePetitioner acted in good faith, it is material to consider who hewas and whether he had any concern in the matter complained ofwhich would justify him in making the said complaint. In thiscase, the Petitioner is the neighbour of the Respondent and thedrainage pipe in front of his house had been damaged and he hadbonafidely believed that it had been done by the Respondent due toprevious enmity. In order to come within the Eight Exception toSection 499, it is sufficient if he shows that on reasonablegrounds he believed the accusation to be true and in that belief,he bona fidely made the complaint to the police. It is pertinentto point out that he has given the said complaint to protect hisown interest. The complaint does not disclose any malice on thepart of the Petitioner.14. On identical set of facts, the Honourable SupremeCourt in the case of Rajendrakumar Sitaram Pande and others Vs.Uttam and another (1999-3-SCC-134) has held that it is not adefamation to prefer in good faith an accusation against any personto any of those who have lawful authority over that person withregard to the subject matter of accusation in view of Exception 8to Section 499 of IPC. The observations made on facts in the saiddecision are extracted below:-"The gravamen of the allegations in the complaintpetition is that the accused persons made a complaintto the Treasury Officer, Amravati, containing falseimputations to the effect that the complainant had cometo the office in a drunken state and abused theTreasury Officer, Additional Treasure Officer and theCollector and circulated in the office using filthylanguage and such imputations had been made with theintention to cause damage to the reputation andservices of the complainant. In order to decide thecorrectness of this averment, the Magistrate instead ofissuing process had called upon the Treasury Officer tohold an enquiry and submit a report and the saidTreasury Officer did submit a report to the Magistrate. https://hcservices.ecourts.gov.in/hcservices/ The question for consideration is whether theallegations in the complaint read with the report ofthe Magistrate make out the offence under Section 500or not. Section 499 of the IPC defines the offence ofdefamation and Section 500 provides the punishment forsuch offence. Exception 8 to Section 499 clearlyindicates that it is not a defamation to prefer in goodfaith an accusation against any person with regard tothe subject matter of accusation."15. The learned counsel for the Respondent pointed out tothe allegations made in the complaint that the Petitioner came tothe house of the Respondent with a police officer in the nighthours and shouted at the Respondent and used abusive language. Thefalse information given by the Petitioner brought down the image ofthe Respondent under the estimation of his colleagues, whoaccompanied him to the Police Station to enquire about the reportgiven by the Petitioner. He would contend that the abusivelanguage used by the Petitioner would attract an offence punishableunder Section 500 of IPC. He has not given a complaint based onthe incident that had occurred on 26.8.2004. The Respondent onlyrefers to the complaint given by the Petitioner to the PoliceStation, which according to him, is false and the imputation haslowered his image. 16. The learned counsel for the Respondent in the courseof arguments put forth a different contention that the abusivelanguage spoken by Petitioner amounted to defamation. Here again,what is the abusive language used by the Petitioner is not known.Neither it is mentioned in the present complaint. In the absenceof any material to show the defamatory imputations made by thePetitioner, it cannot be said that those imputations were made withan intention to harm or with the knowledge that it would harm thereputation of the Respondent. Hence, the contention of the learnedcounsel for the Respondent cannot be accepted. 17. In view of the above said reasons, this court is of theconsidered view that there is no justification for the court belowto take cognizance of the complaint and therefore the complaint isliable to be quashed and accordingly, it is quashed. This CriminalOriginal Petition is allowed. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarSrcm https://hcservices.ecourts.gov.in/hcservices/ To:1. The Judicial Magistrate, No.1, Coimbatore.2. -do- Thro' The Chief Judicial Magistrate, Coimbatore.+2 cc to Mr.Sunder Mohan, Advocate, SR.No.28433,28397+1 cc to Mrs.AL.Ganthimathi, Advocate, SR.No.28584 Order inCrl.OP.No.3278/2006PA {CO}TP/20.7.2009.