Renuka Iswariah v. Cynthia Dulipsingh

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.07.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.OP.No.23545/2006Cr.MP.No.1/2006Renuka IswariahPetitioner VsCynthia DulipsinghRespondentPrayer:- This Criminal Original Petition is filed to call for therecords in CC.No.4136/2006 on the file of the XIV MetropolitanMagistrate, Egmore, Chennai and quash the proceedings therein.For Petitioner:Mr.A.Raghunathan, SC for Mr.Mohd. RafiFor Respondents:Mr.G.RavikumarORDER The Petitioner seeks to quash the proceedings initiatedagainst her by the Respondent/complainant for the alleged offencepunishable under Section 500 of IPC, pending on the file of thelearned XIV Metropolitan Magistrate, Egmore, Chennai inCC.No.4136/2006.2. The brief facts are given below:-The Respondent/complainant was the former President of theYoung Women's Christian Association of Madras (YMCA) and she heldthe said post during the period 2004-05 and had been an activemember of the YMCA for more than 25 years and had served in anumber of committees thereon. Presently, she is the Chair Personof the nominating committee and her husband is a senior advocate,practicing in the High Court of Madras. Both the Respondent andher husband enjoy a very high status and respectability in theSociety. The Petitioner currently is the President of the YMCA. On5.1.2006, the Respondent and the other members attended themeeting, wherein the Petitioner also attended in her ex-officiocapacity. When deliberations were in progress and the Respondentwas trying to put forth a suggestion about the proper functioningof the community college, the Petitioner intervened and rudelyshouted at the Respondent not to interfere. https://hcservices.ecourts.gov.in/hcservices/

3. It is alleged that the Respondent/complainant continuedto participate and when further discussions were going on, thePetitioner called the Respondent a "liar" in the presence of theother members and staff. The Respondent is said to have beendeeply taken aback by the rudeness and the defamatory statementuttered by the Petitioner and the complainant had issued a letterto the accused on 7.1.2006, calling upon her to desist from use ofsuch words in future and with a view to maintain harmony in aCharitable Association to refrain from using any harsh language.The said letter had been received by the Petitioner on 9.1.2006 andshe had sent a reply on 18.1.2006. Again the complainant issued areply on 25.1.2006, reiterating what was stated in the earlierletter dated 7.1.2006 and demanded unconditional apology withinthree days for making such a defamatory utterance against thecomplainant. Despite receipt of the said letter, the Petitionerhad not issued any unconditional apology and therefore, theRespondent had filed the present complaint against the Petitionerfor the offence punishable under Section 500 of IPC.4. Process had been issued to the Petitioner by the learnedXIV Metropolitan Magistrate, Egmore, Chennai and the Petitioner hadappeared in the court and had received a copy of the complaint.5. The Petitioner challenged the complaint and thecognizance taken by the learned Metropolitan Magistrate on thefollowing grounds:-(i)The cognizance taken by the learned Magistrate isnot valid in the eye of law, as it is not inconformity with Section 199(1) of Code of CriminalProcedure.(ii)The important ingredient in the complaint that thereputation of the complainant had been lowered in theestimation of others is absent and therefore, theoffence of defamation as defined under Section 499 ofIPC is not made out.(iii)The ingredients of Section 499 of IPC have notbeen met out on the allegation made in the complaint.6. Mr.A.Raghunathan, learned senior counsel for thePetitioner submitted that Section 199 of Code of Criminal Procedureis mandatory and if the learned Magistrate takes cognizance of theoffence of defamation on a complaint filed by a person, who is notaggrieved, the same would be illegal, as the Power of Attorney ofthe complainant has no personal knowledge of the alleged defamatoryword uttered by the Petitioner, which is also not spelt out in thesworn statement of the Power of Attorney. It was pointed out bythe learned senior counsel that the complaint has been filed by thePower of Attorney J.Bharathi Raja on behalf of the complainant andthe sworn statement was made only by the Power of Attorney and it https://hcservices.ecourts.gov.in/hcservices/ was recorded on 5.5.2006. 7. Section 199(1) of Code of Criminal Procedure providesthus:-"Prosecution for Defamation: No court shall takecognizance of an offence punishable under Chapter XXIof the Indian Penal Code except upon a complaint madeby some persons aggrieved by the offence.Provided that where such person is under the age ofeighteen years or is an idiot or a lunatic or is fromsickness or infirmity unable to make a complaint, or isa woman who according to the local customs and manners,ought not to be compelled to appear in public, someother person may, with the leave of the court, make acomplaint on his or her behalf."8. In the instant case, there is no indication either inthe complaint or in the sworn statement or in the order passed bythe learned Magistrate taking cognizance of the complaint thatleave has been given to the Power of Attorney to make a complainton behalf of the Respondent on the ground that she was unable toappear before the court for some reason or the other. The purposeand purport of the above provision is that if any deficiency,disability, difficulty or infirmity is shown by the Respondentseeking leave of the court to dispense with her appearance, then ifthe court finds it to be reasonable and sufficient to dispense withthe personal appearance of the complainant to present thecomplaint, then leave could be granted. Admittedly, no leave hasbeen sought for by the Respondent for presenting the complaint by aPower of Attorney Agent on behalf of the complainant showing thereason therefor. Despite the said deficiency, the learnedMagistrate had taken cognizance without applying his mind and intotal contravention of the proviso to Section 199(1) of Code ofCriminal Procedure.9. In the case of C.K.Ragunath and four others Vs.S.Ganapathi [1989-LW-Crl-423], this court has held that the fact ofissuing process under Section 204 of Code of Criminal Procedure toa person to appear before a court is an important act, which shouldnot be performed perfunctorily and automatically. It is furtherheld that the learned Magistrate should apply his mind beforetaking such steps.10. In the case of J.Jayalalitha Vs. Arcot N.Veerasamy[1997-Crl.LJ-4585], this court has held that the learned ChiefMetropolitan Magistrate granting leave to the Power of Attorney tomake the complaint on behalf of the Petitioner would definitely bea deficiency, when the complainant had not satisfied the court byfiling an affidavit narrating the circumstances seeking for leaveto file a complaint on her behalf by the Power of Attorney . https://hcservices.ecourts.gov.in/hcservices/

11. In the instant case, no leave is sought for by theRespondent and the learned Magistrate has also taken cognizancewithout applying his mind as to whether the Petitioner was disabledfrom appearing in court to file the complaint in person. Grantingleave could not be done for the mere asking since it involves acareful scrutiny before passing the orders under the proviso toSection 199(1) of Code of Criminal Procedure, as it would relate torelaxing the embargo embodied under Section 199 of Code of CriminalProcedure for the presentation of the complaint by any other personthan the person aggrieved. Therefore, I hold that the complaint andthe sworn statement recorded by the learned Magistrate are notvalid in the eye of law and the cognizance taken by the learnedMagistrate on such invalid sworn statement given by the Power ofAttorney gets vitiated.12. Mr.A.Raghunathan, learned senior counsel for thePetitioner drew the attention of this court to the materialsproduced viz. the complaint and the sworn statement and submittedthat there is no averment either in the complaint or in the swornstatement that due to above imputation made by the Petitioner, theimage and reputation of the Respondent/complainant has been loweredin the estimation of the public.13. According to the definition of 'defamation' as providedunder Section 499 of IPC, whoever by words either spoken orintended to be read, or by signs or by visible representations,makes or punishes any imputation concerning any person intending toharm, or knowing or having reason to believe that such imputationwill harm the reputation of such person, is said to defame thatperson.14. Explanation 4 to Section 499 of IPC runs as follows:-"No imputation is said to harm a person's reputation,unless that imputation directly or indirectly, in theestimation of others, lowers the moral or intellectualcharacter of that person, or lowers the character ofthat person, in respect of his caste or of his calling,or lowers the credit of that person, or caused it to bebelieved that the body of that person is in a loathsomestate, or in a state generally considered asdisgraceful."15. Thus, the conjoint reading of Section 499 of IPC withthis Explanation 4, would make it clear that in the complaint,there shall be an averment to the effect that because of theimputation, the complainant's reputation had been lowered in theestimation of others. As indicated earlier, this importantingredient is absent in the complaint and in the sworn statement. https://hcservices.ecourts.gov.in/hcservices/

16. While interpreting Section 499 of IPC and Explanation4 thereto, this Court, in the case of Mis.Violet Wapshare Vs. MissMaureen Fround [1970-Mad-LW-Crl-4), has held as follows:-"The word "harm" used here relates to imputations on aman's character made and expressed to others; so as tolower him in their estimation and anything which lowershim merely in his own estimation certainly does notconstitute defamation."17. In a recent judgement of the Honourable SupremeCourt rendered in the case of Shatrughna Prasad Sinha Vs. RajbhauSurajmal Rathi [1997-Cri.LJ-212:1996-AIR-SCW-4030), while answeringsimilar question, the Apex Court after extracting Section 499 ofIPC and Explanation 4 thereto, has observed as follows:-"A reading of the complaint does not contain any of theallegations constituting the offence of defamationpunishable under Section 500 of IPC. The contents ofthe magazine are alleged to be defamatory against theMarwari community,lowering them in the estimate of thepublic or their reputation is lowered in the Society.But we do not find any allegation made in thecomplaint. Accordingly, we hold that the complaintfiled in the court of Judicial Magistrate, First Classin Court NO.4, at Pune does not contain any of theallegations so as to constitute the offence ofdefamation defined in Section 499 and punishable underSection 500 of IPC."18. In the instant case, the concentration of theRespondent was only in narrating her standing in the Society andabout her respectability, but there is no averment either in thecomplaint or in the sworn statement that as a result of theimputation, the prestige, image and reputation of the Respondenthas been lowered in the estimation of the public. In the absenceof such averment in the complaint with reference to the fact of thereputation of the Petitioner having been lowered down in theestimation of others, it cannot be said that sufficient ground ismade out for proceeding further by taking cognizance of thecomplaint. On the said ground also, the complaint standsunsustainable.19. The last submission made by the learned senior counselfor the Petitioner is that mere communication of defamatory matterdirectly to the person defamed is not publication within themeaning of Section 499 of IPC. In other words, the defamatorymatter must be published, that is communicated to some other personother than the person concerned to whom it is addressed. Thelearned senior counsel relied on a decision of this court renderedin the case of Mis.Violet Wapshare Vs. Miss Maureen Fround [1970- https://hcservices.ecourts.gov.in/hcservices/ Mad-LW-Crl-4), wherein it is held as under:-"Mere communication of defamatory matter merely to theperson defamed is not publication within the meaning ofSection 499 of IPC. In other words, the defamatorymatter must be published, that is communicated, to someperson other than the person concerned to whom it isaddressed. The word 'publish' in Section 499 of IPC isused in its etymological sense as connoting "to makepublic" or "to make known to people in general". Since"publication" implies communication to the public orthe people, it follows that it is not publication ifthe libeler merely communicate his libel to the persondefamed. Such communications may amount to an insultand be punishable as such, but it is not publicationfor which he could be held liable under Section 499 ofIPC. Further, publication to constitute defamationshould be made with the intention to defame someperson." 20. In the instant case, in the complaint the Respondenthas not given the names of those persons, who were present at thetime when the said defamatory word had been uttered by thePetitioner. In the absence of any such reference to any personpresent at that time, it cannot be said that the publication wasmade within the meaning of Section 499 of IPC. Even whileconsidering as to whether the word uttered by the Respondent wouldamount to defamation, I am unable to hold that the same was utteredwith any intention on the part of the Petitioner to harm or defamethe complainant. 21. In the case of S.Seetharama Iyer and another Vs.K.C.Ramulu alias Ramanathan [1972-LW-Crl-226], this court has heldthus:-"On the facts, that the words uttered are only vulgarwithout any intention on the part of the Petitionersaccused herein to harm or defame the complainantRespondent. From the complaint it was clear that therewas no intention to harm, and there was also noknowledge to the Petitioners that such imputation willharm the reputation of the Respondent in any sense.Considering that the words uttered can at best amountto only vulgar abuses,no offence under Section 499 ofIPC which is punishable under Section 500 of the samehas been made out against the Petitioners herein."22. For the reasons aforesaid, viewed at any angle, I amunable to find any sufficient and valid ground to sustain thecognizance taken by the learned Magistrate of the offence under https://hcservices.ecourts.gov.in/hcservices/ Section 500 of IPC against the Petitioner. Hence, the impugnedcomplaint deserves to be quashed and accordingly, it is quashed andthis Criminal Original Petition is allowed. Consequently, theconnected MP is closed. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarSrcm To:1.The XIV Metropolitan Magistrate, Egmore, Chennai2.The Public Prosecutor, High Court, Madras +1 cc to Mr.G.Ravikumar, Advocate, SR.No.34819 Order inCrl.OP.No.23545/2006JSV {CO}TP/4.8.2009.