IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 3.07.2009 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.OP.No.3278/2006 Crl.MP.No.796/2006 B.Sreenivasan Petitioner Vs M.K.Thirumurugan Respondent Prayer:- This Criminal Original Petition is filed to call for the records in CC.No.708/2004 on the file of the Judicial Magistrate I, Coimbatore and quash the same. For Petitioner : Mr.Sundar Mohan For Respondents : Mr.Murugappan for M/s.AL.Ganthimathi ORDER This Criminal Original Petition is filed to quash the complaint in CC.No.708/2004 on the file of the Judicial Magistrate I, Coimbatore. The Petitioner is arrayed as the accused in the complaint. 2. The Respondent had filed the complaint in CC.No.708/2004 for the offences punishable under Sections 182 and 500 of IPC. The allegation in the complaint is that the Respondent is practicing as a Lawyer and the Petitioner is his neighbour and in order to wreck vengeance on the Respondent, on 26.8.2004 at 10.30 p.m. the Petitioner, gate crashed into the compound wall of his house along with a man in police uniform and started shouting at the Respondent. As the Respondent was shocked on seeing the behaviour of the Petitioner and other men in police uniform, he did not open the door and therefore, both the Petitioner and the police man left the place. Since he apprehended that a complaint would have been given against him, he verified with the concerned police and came to know about the complaint given by the Petitioner to the Thudiyalur Police Station on 28.8.2004, suspecting that the Respondent had caused damage to his drainage pipe. Thereafter, it is said that the Respondent moved the higher officers in the Police Department and on enquiry, the complaint given by the Petitioner was dropped on the ground that it is false. Therefore, the Respondent had preferred the present complaint against the Petitioner 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 the Magistrate for the offences punishable under Section 182 and 500 of IPC on the following two grounds:= (1) There is an express legal bar engrafted in Section 195 of Cr.PC, prohibiting the entertainment of a complaint for the offence under Section 182 of IPC, without a complaint in writing of a public servant as required by Clause (a) of Sub clause (1) of Section 195 of Cr.PC and (2) a protection is given to the Petitioner by Exception 8 to Section 499, if the accusation is preferred in good faith to a person in authority, which would not attract an offence under Section 500 of IPC. 4. The Respondent has alleged in the complaint that the Petitioner has given a false information to the police officer, Thudiyalur Police Station on suspicion that the Respondent had caused damage to his drainage pipe and thus induced the police concerned to visit the house of the complainant in the night hours to enquire into the said complaint. It is also stated in the complaint that a false complaint has been given by the Petitioner and used the power of the Police to take action on such a false complaint against the Respondent and therefore, the said act of the Petitioner is punishable under Section 182 of IPC. 5. Section 182 of IPC has to be read in conjunction with Section 195(1)(a) of Code of Criminal Procedure, which requires a complaint for offences under Sections 172 to 188 of IPC to be filed by the public servant concerned or by some other public servant, to whom he is administratively subordinate. Admittedly, in this case, the complaint is not given by the concerned police official, who registered the case or any other police officer, who had come to know that it is a false information. 6. The object and scope of Section 195 (1)(a) is well defined by the Honourable Supreme Court in the case State of UP Vs. Mata Bhikh and others (1994-SCC-Cri-831), that the object of the said section is to protect a person from being vexatiously prosecuted upon inadequate materials or insufficient grounds by person actuated by malice or ill-will or frivolity of disposition at the instance of private individuals for the offences specified therein. The relevant passage is extracted as here under:- "The provisions of this section, no doubt, are mandatory and the Court has no jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing of 'the public servant concerned' as required by the section without which the trial under Section 188 of the IPC become void ab initio." https://hcservices.ecourts.gov.in/hcservices/ 7. A complaint in writing by the police officer concerned is a condition precedent for the Magistrate to take cognizance of an offence under Section 182 of IPC and that condition must be strictly complied with. On the complaint given by the Respondent, who is not a public servant, the Magistrate has taken cognizance and failed to notice the prohibition contained in Section 195 of Code of Criminal Procedure. The court was not competent to take cognizance 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 do not attract an offence under Section 182 of IPC. In this case, it is alleged in the complaint that the Petitioner gave a false information to the police that the Respondent had damaged the drainage pipe and thus he is said to have induced the police to take action. It is alleged by the Respondent that the said complaint 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 giving false information should have knowledge that it is false or believed to be false intending, thereby to cause the public servant concerned to do some act. A statement or report to the police on suspicion that the Respondent has committed an offence cannot be construed as an information false to the knowledge of the Petitioner, even if the said information was unfounded. There must be positive knowledge or belief on the part of the Petitioner that it is false. The suspicion entertained by the Petitioner that the Respondent had damaged the drainage pipe due to previous enmity would only show that there was some reasonable ground for the Petitioner to believe the information to be true. 10. In the complaint, the Respondent has stated that the Deputy Superintendent of Police, who conducted enquiry informed him that it is false. Only based on that, he had made accusation against the Petitioner under Section 182 of Indian Penal Code. No such material is pressed into service by the Respondent along with the complaint. Even assuming it to be true, it can only be an opinion of the Officer and it cannot be construed as a legal evidence and therefore, it could not be the basis of a finding. Therefore, even on the said ground, the complaint cannot stand to legal scrutiny. 11. The Respondent has averred in the complaint that the Petitioner has made defamatory insinuations in the false complaint given by him to the Thudiyalur Police Station on 26.8.2004 and thus, he is punishable under Section 500 Code of Criminal Procedure. To constitute an offence under Section 500 of IPC, it must be shown that the accused has made imputation by words, which intended to harm the reputation of the complaint and further he knew 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 to Eight Exception to Section 499 of IPC and submit that it would not attract the ingredients of offence of defamation, if accusation is made in good faith to an authorised person or Authority. He would further contend that if without any malice if a person makes a defamatory charge, which he bona fidely believes to be true against a person whom he believes to have caused the injury, to an Authority whose duty is to enquire into and redress such injury, the occasion is privileged because the person making the charge has an interest in its subject matter of the accusation and the person to whom the complaint is made has a duty to discharge in respect of it. 13. There is every force in the contention of the learned counsel for the Petitioner. In determining as to whether the Petitioner acted in good faith, it is material to consider who he was and whether he had any concern in the matter complained of which would justify him in making the said complaint. In this case, the Petitioner is the neighbour of the Respondent and the drainage pipe in front of his house had been damaged and he had bonafidely believed that it had been done by the Respondent due to previous enmity. In order to come within the Eight Exception to Section 499, it is sufficient if he shows that on reasonable grounds he believed the accusation to be true and in that belief, he bona fidely made the complaint to the police. It is pertinent to point out that he has given the said complaint to protect his own interest. The complaint does not disclose any malice on the part of the Petitioner. 14. On identical set of facts, the Honourable Supreme Court in the case of Rajendrakumar Sitaram Pande and others Vs. Uttam and another (1999-3-SCC-134) has held that it is not a defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with regard to the subject matter of accusation in view of Exception 8 to Section 499 of IPC. The observations made on facts in the said decision are extracted below:- "The gravamen of the allegations in the complaint petition is that the accused persons made a complaint to the Treasury Officer, Amravati, containing false imputations to the effect that the complainant had come to the office in a drunken state and abused the Treasury Officer, Additional Treasure Officer and the Collector and circulated in the office using filthy language and such imputations had been made with the intention to cause damage to the reputation and services of the complainant. In order to decide the correctness of this averment, the Magistrate instead of issuing process had called upon the Treasury Officer to hold an enquiry and submit a report and the said Treasury Officer did submit a report to the Magistrate. https://hcservices.ecourts.gov.in/hcservices/ The question for consideration is whether the allegations in the complaint read with the report of the Magistrate make out the offence under Section 500 or not. Section 499 of the IPC defines the offence of defamation and Section 500 provides the punishment for such offence. Exception 8 to Section 499 clearly indicates that it is not a defamation to prefer in good faith an accusation against any person with regard to the subject matter of accusation." 15. The learned counsel for the Respondent pointed out to the allegations made in the complaint that the Petitioner came to the house of the Respondent with a police officer in the night hours and shouted at the Respondent and used abusive language. The false information given by the Petitioner brought down the image of the Respondent under the estimation of his colleagues, who accompanied him to the Police Station to enquire about the report given by the Petitioner. He would contend that the abusive language used by the Petitioner would attract an offence punishable under Section 500 of IPC. He has not given a complaint based on the incident that had occurred on 26.8.2004. The Respondent only refers to the complaint given by the Petitioner to the Police Station, which according to him, is false and the imputation has lowered his image. 16. The learned counsel for the Respondent in the course of arguments put forth a different contention that the abusive language 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 absence of any material to show the defamatory imputations made by the Petitioner, it cannot be said that those imputations were made with an intention to harm or with the knowledge that it would harm the reputation of the Respondent. Hence, the contention of the learned counsel for the Respondent cannot be accepted. 17. In view of the above said reasons, this court is of the considered view that there is no justification for the court below to take cognizance of the complaint and therefore the complaint is liable to be quashed and accordingly, it is quashed. This Criminal Original Petition is allowed. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar Srcm 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 in Crl.OP.No.3278/2006 PA {CO} TP/20.7.2009. https://hcservices.ecourts.gov.in/hcservices/