IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 12TH MARCH 2009 / 21ST PHALGUNA 1930 Crl.MC.No. 129 of 2006() ------------------------ CC.1437/2004 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... PETITIONER(S): ACCUUSED. ------------------------ 1. SRI.CHERIAN.J. PUNNATHARA, FLAT NO.C.2. ARVIN RIVER DALE, APARTMENTS, VRINDAVAN, CHETTICHIRA ROAD, ELAMKULAM, KOCHI 682 019. 2. SMT. SHERY CHERIAN, W/O.CHERIAN, ARWIN RIVER DALE APARTMENTS, FLAT NO.C2, VRINDAVAN, CHETTICHIRA ROAD, ELAMKULAM, KOCHI 682 019. 3. SRI. C.R.ANOOP, FLAT NO.D2, ARWIN RIVER DALE APARTMENTS, VRINDAVAN, CHETTICHIRA ROAD, ELAMKAULAM, KOCHI 682 019. 4. SMT. SREELEKHA ANOOP, W/O.C.R.ANOOP, FLAT NO.D2, ARWIN RIVER DALE APARTMENTS, VRINDAVAN, CHETTICHIRA ROAD, ELAMKULAM, KOCHI 682 019. BY ADVS. SRI.P.VIJAYA BHANU SRI.PRASUN.S RESPONDENT(S): COMPLAINANT AND STATE. ------------------------------------- 1. GOPIKA DAS AJI KAMATH, W/O.AJEE DAS KAMATH, FLAT NO.D1, ARWIN RIVER DALE APARTMENTS, VRINDAVAN, CHETTICHIRA ROAD, ELAMKULAM, KOCHI 682 019. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. AMJATH ALI -R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON 12.3.2009 PASSED THE FOLLOWING: ORDER IN CRL. M.A. NO. 236 OF 2006 IN CRL. M.C. NO.129 OF 2006. DISMISSED 12.3.2009 Sd/-(C.T. RAVIKUMAR, JUDGE) C.T. RAVIKUMAR, J. -------------------------------------------- CRL. M.C. NO. 129 OF 2006 -------------------------------------------- Dated this the 12th day of March, 2009 O R D E R The petitioners herein are arrayed as accused in C.C. No.1437 of 2004 on the file of the Judicial First Class Magistrate’s Court II, Ernakulam alleging commission of offence under Section 499 punishable under Section 500 of the Indian Penal Code. The said case has its genesis from Annexure C private complaint dated 30.1.2004 filed by the first respondent herein before that court. The petitioners seek to quash Annexure C complaint and all further proceedings pursuant thereto in C.C. No.1437 of 2004. 2. The main grounds on which the petitioners assail Annexure C complaint are that the same does not make out any offence at all and that it does not attribute any imputation or publication on their part against the first respondent-complainant either by words or signs or any visible representations made with the intention to lower her reputation. It is their further case that Annexure-C is absolutely silent about the specific overt acts or misrepresentations made by them so as to constitute an offence CRL.M..C. NO. 129/2006 2 under Section 499 I.P.C. In the circumstances, relying on the decision of this Court reported in Madhavi Amma v. Sherief, 1985 K.L.T. 330 and the decision of the Honourable Apex Court reported in State of Haryana v. Bhajan Lal, AIR 1992 SC 604, it is contended that Annexure C and all proceedings thereto are liable to be quashed. 3. The allegation against the petitioners in Annexure C complaint is that they have committed offence under Section 499 I.P.C. and thus made themselves liable for punishment under Section 500 I.P.C. In this context, it is preferable and profitable to extract the relevant allegations made in Annexure C complaint. Paragraph 2:- “And when during the 1st week of May, 2003 the complainant had gone to her husband’s house with the child entrusting the keys of the flat as well as the duplicate keys of the terrace door and the letter box in order to complete the wooden fittings and to fix them inside the flat, the accused unnecessarily scolded the workers and quarreled with them saying that the work is prolonging. Thereafter in the 1st week of May just after the complainant had left to her husband’s place the accused conspired together and clandestinely removed the keys of the terrace door keeping it locked, along with the key of the letter box in a bunch, that had been kept in the key hole of the terrace door lock by the workers as usual, with a view to cause obstructions to the CRL.M..C. NO. 129/2006 3 complainant and the workers in completing the work. ............ Seeing that the workers managed to continue the work after few days obstruction by the accused, they conspired together and designed to injure and defame the complainant and family by giving false complaint to the police alleging that the workers destroyed the lock of flat No.C-2 after removing the lock of the terrace door by the accused and illegally keeping the said lock and the said 2 keys of the complainant with them. On such false complaint the accused managed to bring 2 police men in their uniform to the residence of the complainant on 10.5.2003 when she was away from home, and thus created an awkward situation and scene there inducing the policemen to scold the workers falsely imputing the blame of their mischief on the workers. But when the police knew that there is no problem in the place, no offence is committed by any or nothing happened to attract their visit of the flat they went feeling regret for coming to the flat on no reasonable grounds.” Paragraph 3:- “ ............. The complainant could reach her flat after the said shameful incident was over on 10.5.2003. Then she was surprised to see the people and around the apartment being mislead and misunderstood by the willful false complaint of the accused and bringing policemen in police dress to the flat. The above said wrongful scandalizing scenes amounts to visible representations publishing imputation on the complainant injuring her reputation giving an impression to the public that the complainant and family had engaged the workers to commit some crimes that attracts action and investigation by the police. The neighbours and others in the public thereafter started looking at the complainant with a scornful eye and behaved in a CRL.M..C. NO. 129/2006 4 contemptuous manner as if she is involved in some criminal activities and that she is devoid of decency, credit, nobility, humility and worth expected of her in her status, learning. calling, family background and community.” Paragraph 6:- “ The accused has not acted as per the spirit of the notice and instead they caused a reply notice dated 30.6.2003 containing false statements accusing the complainant and the workers and justifying their wrongs and mischief. Even thereafter the accused continue to spread false defamatory stories about the incident among the general public whenever there is occasion for the same. The members of the public hearing the distorted version of the accused used to shun the complainant and the family with a contemptuous eye, and thus it has lowered the good name of the complainant in the general public.” Paragraph 7:- “It is respectfully submitted that the above said visible representations and false complaint, bringing police in police dress to the residence of the complainant and such other after incidents were intended to harm the reputation to the complainant and family and in fact seriously injured their reputation and professional prospects of the complainant...............” It is based on the above said allegations that the first respondent alleged commission of offence under Section 499 punishable under Section 500 I.P.C. against the petitioners/accused persons. CRL.M..C. NO. 129/2006 5 4. Before scanning the above extracted allegations in the light of Section 499 I.P.C. to find out whether there are ingredients to constitute an offence under the said section, it is relevant to note certain aspects in the complaint. From Annexure C complaint itself, certain admitted facts are deducible. The petitioners and the first respondent are occupants of Arwin River Dale Apartments in Kochi. The husband of the first respondent entrusted the work of wooden fittings to one contractor by name Sudhish and thereupon the workers of Sudhish entered the open terrace which is the common area and started the work. Later, the door of the terrace was locked and on the next day, the lock was damaged. Subsequently, the matter was taken up with the police authorities who came to the apartment and conducted the necessary investigation. What exactly are the defamatory visible representations made by the accused persons intending to harm the reputation of the first respondent, knowing or having reason to believe that such imputations will harm her reputation? 5. I have carefully gone through the aforesaid extracted paragraphs and also every other single line in the said complaint. Reading of the said lines or even, reading in between the lines did not bring forth anything to constitute the ingredients for an offence under Section 499 I.P.C. The CRL.M..C. NO. 129/2006 6 long and short of the allegations in Annexure C is that the actions on the part of the accused persons in bringing the policemen in uniforms to the residence of the first respondent amounts to misrepresenting before others that she had done some offence and thereby the accused have lowered the credit, intellectual, moral and professional character and decorum of the first respondent as an advocate. It also contains an allegation that even after receipt of her lawyer's notice dated 3.6.2003, the accused persons did not act as per the spirit of the notice and instead caused reply dated 30.6.2003 and thereafter they continued to spread false and defamatory stories about the incident among the general public whenever an occasion arose and that hearing the distorted version, they used to shun her and her family with a contemptuous eye and thus lowered her good name. The said allegations are too vague and did not make out an offence under Section 499 I.P.C. against the accused. Even my viewing Annexure C complaint microscopically failed to fetch prima facie satisfaction of the existence of a cognizable offence against the petitioners. In fact, it ingrained no ingredients to constitute an offence under Section 499 I.P.C. Even if the entire allegations, as extracted above, are taken at their face value and accepted in their entirety, no such offence can be made out against the accused/petitioners. They would only go to show that the petitioners had approached police authorities and in pursuance thereof, CRL.M..C. NO. 129/2006 7 policemen in uniforms came to the apartment. Be that as it may, it cannot constitute an offence as alleged. I may also hasten to add that the allegations in Annexure C complaint is absolutely absurd and it is inherently improbable to think that any prudent man would ever reach a just conclusion that there are sufficient grounds for proceeding against the accused persons alleging commission of offence under Section 499 I.P.C. in the light of the allegations made in Annexure C. 6. In the decision reported in Madhavi Amma v. Sherief, 1985 K.L.T. 330, this Court held that absence of incorporation of defamatory imputations in first person or at least a substantial account of the same in the complaint is fatal to the prosecution. Absence of necessary allegations in Annexure C complaint to constitute an offence under Section 499 I.P.C. against the petitioners/accused persons cannot be made good by adducing evidence during trial. In fact, it is settled position of law that one can be permitted to adduce evidence only to support the allegations because it is that allegation which finds a place in the complaint that the accused persons are liable to answer. In the decision reported in State of Haryana v. Bhajan Lal, AIR 1992 SC 604, the Honourable Apex Court held that categories of cases given thereunder would invite exercise of extraordinary CRL.M..C. NO. 129/2006 8 power under Section 482 Cr.P.C. either to prevent abuse of the process of the court or to secure the ends of justice. Category 1 and 5 reads thus: "116. Scope and ambit of power to quash criminal proceedings.-- (1)Where the allegations made in the first information report or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) xx xx (3) xx xx (4) xx xx (5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused." 7. As already stated a bare perusal of Annexure C complaint would make it absolutely clear that there is absolute absence of ingredients to constitute an offence under Section 499 IP.C. against the accused and therefore, in the light of the decision this Court reported in Madhavi Amma v. Sherief, 1985 K.L.T.330 and the decision of the Honourable CRL.M..C. NO. 129/2006 9 Apex Court in reported in State of Haryana v. Bhajan Lal, AIR 1992 SC 604, I am inclined to accept the contentions of the petitioners that the allegations contained in Annexure C complaint do not constitute an offence under Section 499 I.P.C. against them and, therefore, it is liable to be quashed. In view of the conclusion that Annexure C does not constitute imputations or visible representations made with the intention to lower the reputation of the first respondent and consequently, the absence of ingredients to constitute an offence under Section 499 punishable under Section 500 I.P.C., Annexure C complaint is liable to be quashed. Allowing prosecution of petitioners based on Annexre C in the aforesaid circumstances would result in abuse of process of the court. Accordingly, I quash Annexure C complaint and consequently, no proceedings shall be continued against the petitioners/ accused in C.C. No.1437 of 2004 on the file of the Judicial First Class Magistrate’s Court II, Ernakulam. The Crl. M.C. is accordingly allowed. (C.T. RAVIKUMAR, JUDGE) sp/ CRL.M..C. NO. 129/2006 10 C.T. RAVIKUMAR, J. CRL. M.C. NO. 129/2006 O R D E R 12th March, 2009