IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 Crl.MC.No. 5014 of 2008() ------------------------- C.M.P.NO.3567/08 IN S.T.NO.794/2007 OF CJM, THIRUVANANTHAPURAM PETITIONER(S): PETITIONER/ACCUSED --------------------------------- M.M.HASSAN, S/O.MALIK MOHAMMED HARSHA ISWARVILASOM ROAD, COTTON HILL, THIRUVANANTHAPURAM. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): COMPLAINANT & STATE --------------- 1. V.A.ARUNKUMAR, S/O.V.S.ACHUTHANANDAN CLIFF HOUSE, NANTHANCODE, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.GIKKU JACOB ADV. SRI.VAKKOM N.VIJAYAN FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.5014 of 2008 ------------------------------------- Dated this the 5th day of February, 2009 ORDER At the threshold of a criminal prosecution for defamation, is it invariably necessary to examine witnesses to prove lowering of the reputation of the complainant ? Is the omission to examine witnesses at that stage fatal to the cognizance taken even in a case where the alleged imputations are per se defamatory ? Does the omission on the part of the learned Magistrate to record the presence or otherwise of the witnesses of the complainant at the stage of Section 200 Cr.P.C ipso facto vitiate the cognizance taken ? These interesting questions of law are raised on behalf of the petitioner by Adv.Sujith Mathew Jose in this Crl.M.C. 2. Petitioner faces indictment in a prosecution under Section 500 I.P.C. Proceedings have been initiated on the basis of a complaint filed by the complainant/respondent herein who happens to be the son of the Chief Minister. The petitioner herein, a public activist and a political leader is alleged to have made defamatory imputations against the complainant in a press Crl.M.C. No.5014 of 2008 2 conference held by him. He is alleged to have raised per se defamatory imputations. The crux of the defamatory imputations is that the complainant, the son of the Chief Minister had stayed in Dubai for some time; had held secret parleys. On account of such secret meetings a contract has been executed by the State Government with a company at Dubai conferring on the company huge undeserved benefits. 3. The said press conference was reported in the print and visual media extensively. According to the complainant he was brought down in the assessment of right thinking members of the society by such defamatory imputations. The complainant filed the complaint before the learned Chief Judicial Magistrate, Trivandrum. It is submitted at the bar that the sworn statement of the complainant was recorded. No other witness was examined. Cognizance was taken and summons was issued to the petitioner herein. The petitioner on receipt of summons appeared before the learned Magistrate. He was enlarged on bail. Particulars of offence allegedly committed by the petitioner were read over to him. He pleaded not guilty. 4. At that stage the petitioner came to this Court with a revision petition assailing the cognizance taken against him by the learned Magistrate. Another Bench of this Court as per Crl.M.C. No.5014 of 2008 3 order dated 26.08.2008 in Crl.R.P.No.2894 of 2008 disposed of the revision petition with the observation that the petitioner can move the learned Magistrate with a petition to discontinue the proceedings under Section 251 Cr.P.C in case there are no sufficient materials to proceed against the accused. Reliance was placed in the decision in Kamala Rajaram v. State of Kerala [2005(3) KLT 617]. The question posed in para.8 of the said judgment whether Section 251 clothes a Magistrate with powers to discontinue a prosecution for a summons offence instituted on a private complaint was not considered by the learned Judge in detail in the order dated 26.08.08. That question was not decided in Kamala Rajaram v. State of Kerala (supra) and was only left open. Notwithstanding the inadvertent errors in para.7 of Kamala Rajaram v. State of Kerala (supra) it is evident that the dictum is only that Section 251 read with Section 258 Cr.P.C clothes the criminal courts with jurisdiction to discontinue only a prosecution for a summons offence initiated otherwise than upon complaint. 5. The petitioner went back to the learned C.J.M and filed an application to drop proceedings against him in terms of the dictum in Kamala Rajaram v. State of Kerala (supra). That petition was dismissed by Annexure-IV order. The learned Crl.M.C. No.5014 of 2008 4 C.J.M took the view that the stage of Section 251 Cr.P.C had already been crossed and in the light of the decision in Adalat Prasad v. Rooplal Jindal [A.I.R 2004 S.C 4674] it was not possible or permissible for him to retrace his steps and consider the question afresh under Section 251 Cr.P.C. The petitioner has, in these circumstances, come to this Court again. The learned counsel for the petitioner has advanced detailed arguments. The matter is at the stage of admission and I have not ordered notice to the respondent. The learned counsel for the petitioner assails the impugned order on two grounds. First of all it is contended that by the impugned order the learned C.J.M has denied to the petitioner the benefit of the order in Crl.R.P.No.2894 of 2008. This is incorrect. The learned C.J.M has not followed the directions in Crl.R.P.No.2894 of 2008 faithfully. 6. The contention appears to be impressive at the first blush, but cannot obviously stand closer scrutiny. A reading of the order dated 26.08.2008 in Crl.R.P.No.2894 of 2008 clearly shows that the learned Judge of this Court was not apprised of the fact that the stage of 251 Cr.P.C had already been crossed. The counsel contends that a careful look at the sequence of events which preceded the said order must convince this Court Crl.M.C. No.5014 of 2008 5 that the learned Judge was aware of the fact that the stage of Section 251 Cr.P.C had already been crossed. I need only mention that the order does not say so. It is also of crucial importance that the learned Judge had not set aside the reading over of the particulars of the offence or the recording of the plea which had preceded the order dated 26.08.2008 in Crl.R.P.No.2894 of 2008. That again suggests that the learned Judge was not apprised of the fact that the stage of Section 251 Cr.P.C had already been crossed. In this view of the matter, I am of the opinion that the learned C.J.M committed no error or impropriety in taking the view that in the light of Adalat Prasad v. Rooplal Jindal (supra) he cannot retrace his steps, go back and land himself at a point prior to the recording of the plea under Section 251 Cr.P.C which had already taken place. The first contention raised cannot, in these circumstances, succeed. 7. The learned counsel for the petitioner then contends that the petitioner's plea for quashing of proceedings may at least now be considered on merits. The petitioner wanted the same to be considered in Crl.R.P.No.2894/08. That attempt did not succeed in the circumstances explained above. At least now this Court may consider whether the cognizance taken against him is justified or not and whether the proceedings deserve to be Crl.M.C. No.5014 of 2008 6 quashed invoking the extraordinary inherent jurisdiction under Section 482 Cr.P.C. The learned counsel for the petitioner relies on the decision in Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5 S.C.C 749] and contends that taking of cognizance is a serious matter and unjustified cognizance taken deserves to be quashed invoking the extraordinary inherent jurisdiction. 8. I am in complete agreement with the learned counsel for the petitioner. The petitioner's prayer for quashing of proceedings was not considered on merits in Crl.R.P.No.2894 of 2008 as the learned Judge entertained the impression, it appears to me, that the petitioner's claim for termination of proceedings can be considered under Section 251 Cr.P.C. I agree with the learned counsel that his plea for quashing of proceedings must now be considered by this Court on its merits. 9. The learned counsel raises two contentions to justify his plea for premature termination of the criminal prosecution by invocation of the jurisdiction under Section 482 Cr.P.C. The counsel first of all contends that the sworn statement of no other witness except the complainant has been recorded and this, according to the learned counsel for the petitioner, must show that there was no sufficient ground to proceed against the Crl.M.C. No.5014 of 2008 7 accused. Consequently issue of process under Section 204 Cr.P.C is not justified, contends the counsel. The counsel has taken pains to analyse the provisions of Section 499 I.P.C to contend that it is important to place materials before court to show that there has actually been lowering of reputation of the complainant in the assessment of others. The counsel contends that this is not a matter which can be lightly inferred, but materials must be placed before the Magistrate to persuade the Magistrate to take cognizance of such lowering of reputation. Self serving statement of the complainant is not sufficient even at the threshold to induce the requisite satisfaction in the mind of the Magistrate. The learned counsel relies on the decision reported in Shri Ram S.S.Parihar v. Smt.Suniti Bhaduria & Ors. [2007(3) Crimes 321 (Bom.)] in support of this contention. He places particular reliance on para.12 of that decision. 10. At the stage of Section 204 Cr.P.C, it is not for the complainant to prove the offence alleged against the accused beyond doubt. At the threshold the complainant need only establish that there is sufficient ground to proceed against the accused. This is the threshold satisfaction which a criminal court looks for before issuing process under Section 204 Cr.P.C. Detailed and elaborate evidence need not be adduced. But Crl.M.C. No.5014 of 2008 8 undoubtedly there must be sufficient materials to induce the requisite satisfaction in the mind of the Magistrate that there are sufficient grounds to proceed. No litmus test can be prescribed about the quantity of materials that must be available in each case. That would depend upon the facts of each case. In the instant case I have already adverted in brief to the allegations. Though the learned counsel for the petitioner/accused does not make any concessions, I have not a semblance of doubt in my mind that the imputations raised are per se defamatory. Much of evidence is not required to be adduced at the threshold to induce the requisite satisfaction in the mind of the learned Magistrate that the imputations must have lowered the reputation of the complainant. Assertions on oath made by the complainant, I am satisfied, is more than sufficient to induce the requisite threshold satisfaction in the mind of the learned Magistrate. 11. I do not disagree with the decision of the Bombay High Court referred above. In a case where the nature of the imputations do not satisfy the Magistrate that they are defamatory to the complainant, certainly the dictum in that decision must apply. But not so in a case like the instant one where the imputations appear to be defamatory per se. In such a case ritualistic insistence on examination of more witnesses at Crl.M.C. No.5014 of 2008 9 the threshold need not be made by the learned Magistrate and the Magistrate commits no error in entertaining the requisite satisfaction on the basis of the sworn statement of the complainant. The complainant is the one who perceives the response of other members of the community towards him and it cannot be said that he is an incompetent person to speak about the alleged lowering of reputation suffered by him as a result of the alleged imputations made. 12. The law on the point is clear. I accept that the sufficient materials must be placed before the Magistrate to induce the threshold satisfaction in the mind of the Magistrate. The satisfaction to be entertained is not that the offence has been proved and the accused deserves to be convicted but only that there is sufficient grounds to proceed. In a prosecution for defamation, materials must be placed before Court to induce the threshold satisfaction that the imputations have adversely affected the reputation of the complainant. But when allegations are per se defamatory, as in the instant case, it is not necessary to ritualistically parade all witnesses before the Magistrate at the stage of Section 200/202 Cr.P.C. The decision of the Bombay High Court in Shri Ram (supra) can have no application in a case where the alleged culpable imputations are per se Crl.M.C. No.5014 of 2008 10 defamatory. In such a case it is not necessary to embark on a ritualistic enquiry under Section 200/202 Cr.P.C and insist on examination of all witnesses to prove the lowering of reputation of the complainant. 13. The next contention raised by the learned counsel for the petitioner is that the records do not indicate whether the complainant had brought with him any other witness when he filed the complaint. The counsel relies on the mandate of Section 200 Cr.P.C, which obliges the Magistrate to examine on oath the complainant “and the witnesses present if any”. It is not possible to ascertain whether any witness was present or not. The materials available do not reveal whether the complainant had brought with him any witnesses. This, according to the learned counsel for the petitioner, is fatal and offends the stipulations of Section 200 Cr.P.C as explained in the decisions of the Calcutta High Court reported in Mac Culloch v. State [1974 Cri.L.J 182 (Single Bench)] and Brahmanand Goyal v. N.C.Chakraborty [1974 Cri.L.J 1079 (D.B)] as also the decisions of the Madras High Court in K.Chandran v. Chellappa Mudaliar [1996(1) Crimes13 (H.C)] and 1957 (1) MLJ 157 (Ramaswamy Nadar v. Vishwanathan). Crl.M.C. No.5014 of 2008 11 14. I have no quarrel with the proposition of law laid down in those decisions. In a case where sworn statement of the complainant alone has been recorded and his complaint is dismissed on the basis of such sworn statement, a complainant is entitled to urge before superior courts that his witnesses were present and the learned Magistrate had unjustifiably not recorded their sworn statements. In such cases, the complainant will be perfectly justified in contending that the statements of witnesses present must also have been recorded and that such statements if recorded would have tilted the scales in his favour. 15. But such grievance cannot obviously be advanced by an accused person against whom cognizance has been taken on the basis of the sworn statement of the complainant alone. The Magistrate must record whether any other witnesses in addition to the complainant are present or not and the purpose which such recording has to achieve is to avoid a contention by the complainant later on that sworn statements of his witnesses have unjustifiably not been recorded. The precedential rule cannot be applied without appreciating the purpose or the rationale of the rule. I am in respectful disagreement with the observations made in para.5 of K.Chandran v. Chellappa Mudaliar (supra) that this crucial divergence on facts cannot make any Crl.M.C. No.5014 of 2008 12 difference while interpreting the provisions under Section 200 Cr.P.C. The learned counsel for the petitioner fairly points out that a similar view has been taken by another Single Bench of the Kerala High Court earlier in Kunhayisu v. Kallyani [1986 K.L.T 546]. The challenge strenuously raised on the second ground with the aid of the decisions of the Calcutta and Madras High Courts cannot, in these circumstances, be accepted. If the said decisions of the Madras and Calcutta High Courts lay down a proposition that any omission in the court recording the presence or not of the witnesses of the complainant must invariably entail quashing of cognizance taken on the basis of the sworn statement of the complainant, I respectfully disagree with such dictum. That according to me, is not the rationale or the dictum in the said decisions. It remains that all Magistrates must make a note in the order sheet whether any other witness is present or not at the stage of Section 200 Cr.P.C. 16. No other contentions are raised. I am satisfied, in these circumstances, that the prayer for quashing of cognizance taken raised earlier in Crl.R.P.No.2894 of 2008 and now in this Crl.M.C cannot succeed. 17. This Crl.M.C is, in these circumstances, dismissed, but I may hasten to observe that the dismissal of this Crl.M.C will not Crl.M.C. No.5014 of 2008 13 in any way fetter the rights of the petitioner to raise all relevant and appropriate contentions before the learned Magistrate. I have not intended to express any opinion on any disputed questions. I have only chosen to take the view that the cognizance taken does not deserve to be quashed invoking the extraordinary inherent jurisdiction available to this Court under Section 482 Cr.P.C. (R.BASANT, JUDGE) rtr/-