IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 Crl.MC.No. 660 of 2010() ----------------------------------- CC.196/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... PETITIONERS/ A1 AND A2 -------------------------------------- 1. M.M. JAYAN GEORGE @ JAYAN GEORGE @, JAYAN GEORGE MATHEW, 18/52 MULAMOOTTIL BUNGALOW, UNNIYOORKONAM, KULASEKHARAM PO, THUMBAKKODU VILLAGE, KALKULAM TALUK, KANYAKUMARI DISTRICT, TAMIL NADU. 2. ELIZABETH MATHEW, 18/52, MULAMOOTTIL BUNGALOW, UNNIYOORKONAM, KULASEKHARAM PO, THUMBAKKODU VILLAGE, KALKULAM TALUK, KANYAKUMARI DISTRICT, TAMIL NADU. BY ADV. MR.SASTHAMANGALAM S. AJITHKUMAR, MR.P.M.SANEER RESPONDENT(S): -------------------------- 1. SMITHA SUSAN THOMAS, T.C.4/2550-1, PATTOM P.O., THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.660 OF 2010 ------------------------------------------ Dated 25th February 2010 O R D E R Petitioners are the accused in C.C.196/2009 on the file of Judicial First Class Magistrate-II, Thiruvananthapuram taken cognizance for the offence under Section 499/500 of Indian Penal Code on Annexure-I complaint. Petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that the allegations raised in the statement before the Family court in O.P.1066/2006 that petitioner could get reliable information that respondent was having an affair with one Bavin Shah alias Bhavin, even after marriage and subsequent enquiries had revealed that he is already Crmc 660/10 2 a married man with one child and on the first night itself, first respondent disclosed that she is having an affair with Bave and she was not willing to marry the petitioner, are not defamatory and in any case, it is saved by exception 8 and 9 to Section 499 of Indian Penal Code and therefore, the case is to be quashed. Reliance was placed on the decision in Rajendra Kumar Sitaram Pande and others v. Uttam and another (1999 (3) SCC 134). 2. Learned counsel appearing for the petitioner was heard. On hearing the learned counsel I find no ground to quash the proceedings as sought for. Question whether exception 8 or 9 would apply cannot be settled in this petition filed under Section 482 of Code of Criminal Procedure without evidence. Decision relied on by the learned counsel in Rajendra Kumar Sitaram Pande's case Crmc 660/10 3 cannot be made applicable to the facts of the case. That was a case where the complainant had filed a petition before the Treasury Officer, who is the superior officer to take disciplinary action against the accused in that case and an enquiry was conducted by the Treasury officer and it was found that the allegations raised are correct and disciplinary actions were initiated against the complainant. on the material produced it was clear that petition filed by the accused before the Treasury Officer was bonafide. Therefore, it was held that “report of the Treasury officer clearly indicates that pursuant to the report made by the accused persons against the complainant, a departmental enquiry had been initiated and the complainant was found to be guilty and under such Crmc 660/10 4 circumstances, the fact that the accused persons had made a report to the superior officer of the complainant alleging that he had abused treasury officer in a drunken state which is the gravamen of the present complaint and nothing more would be covered by Exception 8 to Section 499 of Indian Penal Code.” That cannot be made applicable to the allegations raised by the petitioner against first respondent. Therefore, case cannot be quashed as sought for. Petitioner is entitled to raise all the contentions before the learned Magistrate at the time of trial. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.