IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.07.2009 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.OP.No.23545/2006 Cr.MP.No.1/2006 Renuka Iswariah Petitioner Vs Cynthia Dulipsingh Respondent Prayer:- This Criminal Original Petition is filed to call for the records in CC.No.4136/2006 on the file of the XIV Metropolitan Magistrate, Egmore, Chennai and quash the proceedings therein. For Petitioner : Mr.A.Raghunathan, SC for Mr.Mohd. Rafi For Respondents : Mr.G.Ravikumar ORDER The Petitioner seeks to quash the proceedings initiated against her by the Respondent/complainant for the alleged offence punishable under Section 500 of IPC, pending on the file of the learned XIV Metropolitan Magistrate, Egmore, Chennai in CC.No.4136/2006. 2. The brief facts are given below:- The Respondent/complainant was the former President of the Young Women's Christian Association of Madras (YMCA) and she held the said post during the period 2004-05 and had been an active member of the YMCA for more than 25 years and had served in a number of committees thereon. Presently, she is the Chair Person of the nominating committee and her husband is a senior advocate, practicing in the High Court of Madras. Both the Respondent and her husband enjoy a very high status and respectability in the Society. The Petitioner currently is the President of the YMCA. On 5.1.2006, the Respondent and the other members attended the meeting, wherein the Petitioner also attended in her ex-officio capacity. When deliberations were in progress and the Respondent was trying to put forth a suggestion about the proper functioning of the community college, the Petitioner intervened and rudely shouted at the Respondent not to interfere. https://hcservices.ecourts.gov.in/hcservices/ 3. It is alleged that the Respondent/complainant continued to participate and when further discussions were going on, the Petitioner called the Respondent a "liar" in the presence of the other members and staff. The Respondent is said to have been deeply taken aback by the rudeness and the defamatory statement uttered by the Petitioner and the complainant had issued a letter to the accused on 7.1.2006, calling upon her to desist from use of such words in future and with a view to maintain harmony in a Charitable Association to refrain from using any harsh language. The said letter had been received by the Petitioner on 9.1.2006 and she had sent a reply on 18.1.2006. Again the complainant issued a reply on 25.1.2006, reiterating what was stated in the earlier letter dated 7.1.2006 and demanded unconditional apology within three days for making such a defamatory utterance against the complainant. Despite receipt of the said letter, the Petitioner had not issued any unconditional apology and therefore, the Respondent had filed the present complaint against the Petitioner for the offence punishable under Section 500 of IPC. 4. Process had been issued to the Petitioner by the learned XIV Metropolitan Magistrate, Egmore, Chennai and the Petitioner had appeared in the court and had received a copy of the complaint. 5. The Petitioner challenged the complaint and the cognizance taken by the learned Metropolitan Magistrate on the following grounds:- (i)The cognizance taken by the learned Magistrate is not valid in the eye of law, as it is not in conformity with Section 199(1) of Code of Criminal Procedure. (ii)The important ingredient in the complaint that the reputation of the complainant had been lowered in the estimation of others is absent and therefore, the offence of defamation as defined under Section 499 of IPC is not made out. (iii)The ingredients of Section 499 of IPC have not been met out on the allegation made in the complaint. 6. Mr.A.Raghunathan, learned senior counsel for the Petitioner submitted that Section 199 of Code of Criminal Procedure is mandatory and if the learned Magistrate takes cognizance of the offence of defamation on a complaint filed by a person, who is not aggrieved, the same would be illegal, as the Power of Attorney of the complainant has no personal knowledge of the alleged defamatory word uttered by the Petitioner, which is also not spelt out in the sworn statement of the Power of Attorney. It was pointed out by the learned senior counsel that the complaint has been filed by the Power of Attorney J.Bharathi Raja on behalf of the complainant and the 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 provides thus:- "Prosecution for Defamation: No court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code except upon a complaint made by some persons aggrieved by the offence. Provided that where such person is under the age of eighteen years or is an idiot or a lunatic or is from sickness or infirmity unable to make a complaint, or is a woman who according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the court, make a complaint on his or her behalf." 8. In the instant case, there is no indication either in the complaint or in the sworn statement or in the order passed by the learned Magistrate taking cognizance of the complaint that leave has been given to the Power of Attorney to make a complaint on behalf of the Respondent on the ground that she was unable to appear before the court for some reason or the other. The purpose and purport of the above provision is that if any deficiency, disability, difficulty or infirmity is shown by the Respondent seeking leave of the court to dispense with her appearance, then if the court finds it to be reasonable and sufficient to dispense with the personal appearance of the complainant to present the complaint, then leave could be granted. Admittedly, no leave has been sought for by the Respondent for presenting the complaint by a Power of Attorney Agent on behalf of the complainant showing the reason therefor. Despite the said deficiency, the learned Magistrate had taken cognizance without applying his mind and in total contravention of the proviso to Section 199(1) of Code of Criminal 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 of issuing process under Section 204 of Code of Criminal Procedure to a person to appear before a court is an important act, which should not be performed perfunctorily and automatically. It is further held that the learned Magistrate should apply his mind before taking such steps. 10. In the case of J.Jayalalitha Vs. Arcot N.Veerasamy [1997-Crl.LJ-4585], this court has held that the learned Chief Metropolitan Magistrate granting leave to the Power of Attorney to make the complaint on behalf of the Petitioner would definitely be a deficiency, when the complainant had not satisfied the court by filing an affidavit narrating the circumstances seeking for leave to 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 the Respondent and the learned Magistrate has also taken cognizance without applying his mind as to whether the Petitioner was disabled from appearing in court to file the complaint in person. Granting leave could not be done for the mere asking since it involves a careful scrutiny before passing the orders under the proviso to Section 199(1) of Code of Criminal Procedure, as it would relate to relaxing the embargo embodied under Section 199 of Code of Criminal Procedure for the presentation of the complaint by any other person than the person aggrieved. Therefore, I hold that the complaint and the sworn statement recorded by the learned Magistrate are not valid in the eye of law and the cognizance taken by the learned Magistrate on such invalid sworn statement given by the Power of Attorney gets vitiated. 12. Mr.A.Raghunathan, learned senior counsel for the Petitioner drew the attention of this court to the materials produced viz. the complaint and the sworn statement and submitted that there is no averment either in the complaint or in the sworn statement that due to above imputation made by the Petitioner, the image and reputation of the Respondent/complainant has been lowered in the estimation of the public. 13. According to the definition of 'defamation' as provided under Section 499 of IPC, whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or punishes 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 to defame that person. 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 the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person, in respect of his caste or of his calling, or lowers the credit of that person, or caused it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful." 15. Thus, the conjoint reading of Section 499 of IPC with this Explanation 4, would make it clear that in the complaint, there shall be an averment to the effect that because of the imputation, the complainant's reputation had been lowered in the estimation of others. As indicated earlier, this important ingredient is absent in the complaint and in the sworn statement. https://hcservices.ecourts.gov.in/hcservices/ 16. While interpreting Section 499 of IPC and Explanation 4 thereto, this Court, in the case of Mis.Violet Wapshare Vs. Miss Maureen Fround [1970-Mad-LW-Crl-4), has held as follows:- "The word "harm" used here relates to imputations on a man's character made and expressed to others; so as to lower him in their estimation and anything which lowers him merely in his own estimation certainly does not constitute defamation." 17. In a recent judgement of the Honourable Supreme Court rendered in the case of Shatrughna Prasad Sinha Vs. Rajbhau Surajmal Rathi [1997-Cri.LJ-212:1996-AIR-SCW-4030), while answering similar question, the Apex Court after extracting Section 499 of IPC and Explanation 4 thereto, has observed as follows:- "A reading of the complaint does not contain any of the allegations constituting the offence of defamation punishable under Section 500 of IPC. The contents of the magazine are alleged to be defamatory against the Marwari community,lowering them in the estimate of the public or their reputation is lowered in the Society. But we do not find any allegation made in the complaint. Accordingly, we hold that the complaint filed in the court of Judicial Magistrate, First Class in Court NO.4, at Pune does not contain any of the allegations so as to constitute the offence of defamation defined in Section 499 and punishable under Section 500 of IPC." 18. In the instant case, the concentration of the Respondent was only in narrating her standing in the Society and about her respectability, but there is no averment either in the complaint or in the sworn statement that as a result of the imputation, the prestige, image and reputation of the Respondent has been lowered in the estimation of the public. In the absence of such averment in the complaint with reference to the fact of the reputation of the Petitioner having been lowered down in the estimation of others, it cannot be said that sufficient ground is made out for proceeding further by taking cognizance of the complaint. On the said ground also, the complaint stands unsustainable. 19. The last submission made by the learned senior counsel for the Petitioner is that mere communication of defamatory matter directly to the person defamed is not publication within the meaning of Section 499 of IPC. In other words, the defamatory matter must be published, that is communicated to some other person other than the person concerned to whom it is addressed. The learned senior counsel relied on a decision of this court rendered in 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 the person defamed is not publication within the meaning of Section 499 of IPC. In other words, the defamatory matter must be published, that is communicated, to some person other than the person concerned to whom it is addressed. The word 'publish' in Section 499 of IPC 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 libeler merely communicate 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 could be held liable under Section 499 of IPC. Further, publication to constitute defamation should be made with the intention to defame some person." 20. In the instant case, in the complaint the Respondent has not given the names of those persons, who were present at the time when the said defamatory word had been uttered by the Petitioner. In the absence of any such reference to any person present at that time, it cannot be said that the publication was made within the meaning of Section 499 of IPC. Even while considering as to whether the word uttered by the Respondent would amount to defamation, I am unable to hold that the same was uttered with any intention on the part of the Petitioner to harm or defame the complainant. 21. In the case of S.Seetharama Iyer and another Vs. K.C.Ramulu alias Ramanathan [1972-LW-Crl-226], this court has held thus:- "On the facts, that the words uttered are only vulgar without any intention on the part of the Petitioners accused herein to harm or defame the complainant Respondent. From the complaint it was clear that there was no intention to harm, and there was also no knowledge to the Petitioners that such imputation will harm the reputation of the Respondent in any sense. Considering that the words uttered can at best amount to only vulgar abuses,no offence under Section 499 of IPC which is punishable under Section 500 of the same has been made out against the Petitioners herein." 22. For the reasons aforesaid, viewed at any angle, I am unable to find any sufficient and valid ground to sustain the cognizance taken by the learned Magistrate of the offence under https://hcservices.ecourts.gov.in/hcservices/ Section 500 of IPC against the Petitioner. Hence, the impugned complaint deserves to be quashed and accordingly, it is quashed and this Criminal Original Petition is allowed. Consequently, the connected MP is closed. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar Srcm To: 1.The XIV Metropolitan Magistrate, Egmore, Chennai 2.The Public Prosecutor, High Court, Madras +1 cc to Mr.G.Ravikumar, Advocate, SR.No.34819 Order in Crl.OP.No.23545/2006 JSV {CO} TP/4.8.2009. https://hcservices.ecourts.gov.in/hcservices/