Defamatory statements made during judicial proceedings not free from criminal liability under IPC: High Court of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI WEDNESDAY THE 10TH DAY OF MARCH 2021 19TH PHALGUNA 1942 Crl.MC.No.534 OF 2016(F AGAINST THE ORDER IN ST 1877 2015 OF CHIEF JUDICIAL MAGISTRATE THRISSUR AGED 57 YEARS S O.ANTONY THARAKAN HOUSE AYYANTHOLE THRISSUR S O.RAPPAI CHALAKKAL HOUSE OLARIKKARA PULLAZHY P.O. THRISSUR 680012 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM 682031 R1 BY ADV. SMT.MITHA SUDHINDRAN R1 BY ADV. SRI.V.C.SARATH R1 BY ADV. SRI.P.VIJAYA BHANU SR R2 BY SRI S SREEKUMAR SR ADV SRI B JAYASURYA SR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03.03.2021 THE COURT ON 10.03.2021 PASSED THE FOLLOWING Crl.MC.No.534 OF 2016(F R. NARAYANA PISHARADI J Crl.M.C.No.5316 Dated this the 10th day of March 2021 O R D E R The petitioner is the sole accused in the case S.T.No.1877 2015 pending in the Court of the Chief Judicial Magistrate Thrissur The aforesaid case is one instituted upon the complaintfiled by the first respondentNo. 5239 2013) before this Court against the University of Calicut and the petitioner and some other persons. Suffice it to state here that the writ petition was filed for issuing directions with regard to the domestic enquiry conducted against the petitioner on the allegation that while working as a Senior Lecturer in the St.Thomas College he had also engaged in the business activities of the company The allegation in Annexure K complaint is that in the counter affidavit filed by the petitioner in W.P.(C) No 5239 2013 he had stated that the writ petitioner was an associate of Adv.C.R.Jaison who was the former Director and Legal Advisor of the company and he Adv.C.R.Jaison) was removed from the company on proved misconduct and misappropriation of the funds of the company It is also alleged in Annexure K complaint that in the Directors Report contained in the 30th annual report of the company it was Crl.MC.No.534 OF 2016(F mentioned that the complainant resigned from the company on account of dereliction of duty in conducting the cases for and on behalf of the company This petition is filed under Section 482 Cr.P.C by the accused for quashing Annexure K complaint and all proceedings against him pending in the Court of the Chief Judicial Magistrate Thrissur based on the complaint 8. Heard learned senior counsel who appeared for the petitioner and also the first respondent and the learned Public Learned senior counsel for the petitioner has raised the following contentions:The statements made about the complainant in the annual report of the company and the counter affidavit filed by the petitioner in the writ petition are not defamatory in nature.Making a statement in the counter affidavit filed in a writ petition before this Court does not amount to publication. No criminal liability would arise on making any defamatory statement in a judicial proceeding before a court of law.(4) The petitioner is entitled to the benefit of the fifth and the eighth exceptions provided to Section 499 of Crl.MC.No.534 OF 2016(F the Indian Penal Code 10. The offence of defamation is defined under Section 499 and it is made punishable under Section 500 of the Indian 11. Section 499 of the Indian Penal Code provides that whoever by words either spoken or intended to be read or by signs or by visible representations makes or publishes 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 except in cases where the exceptions are provided to defame that person Under Section 499 of the Indian Penal Code in order that an offence of defamation may be committed there must be making or publication of any imputation concerning any person by words either spoken or intended to be read or by signs or by visible representations intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person. To constitute the offence of defamation there must be making or publication of an imputation concerning any person and the making or publication must be with intent to harm or knowing or having reason to Crl.MC.No.534 OF 2016(F believe that such imputation will harm the reputation of such 13. As per Annexure K complaint two statements made about the complainant are alleged to be defamatory to him. The first statement is the one made in the annual report of the company that the complainant resigned from the company on account of dereliction of duty. The second one is the statement made by the petitioner in the counter affidavit filed in the writ petition that the complainant is a person against whom misconduct was proved and that he is a person who has misappropriated the funds of the company 14. As far as the first statement is concerned the averments in the complaint by themselves would show that the complainant had omitted to file suits on behalf of the company Further there is no specific allegation that it was the petitioner who made the statement in the annual report of the company and that he was the person who published it. In such circumstances as far as the first statement is concerned it is doubtful whether it would attract the ingredients of the offence defined under Section 499 of the Indian Penal Code as against Crl.MC.No.534 OF 2016(F 15. However the statement that the complainant was removed from the company on proved misconduct and on misappropriation of the funds of the company is prima facie defamatory to him. The complainant is a lawyer. The statement that he is a person against whom misconduct has been proved would definitely harm his reputation as a lawyer. The petitioner has got no plea that any competent authority had found the complainant guilty of misconduct 16. There is no basis for the plea raised by the learned senior counsel for the petitioner that making a statement in the counter affidavit filed before this Court in the writ petition does not amount to publication 17. The essence of publication in the context of Section 499 of the Indian Penal Code is the communication of the defamatory imputation to persons other than the person against whom the imputation is made KLT 19. There is also no merit in the contention of the learned senior counsel for the petitioner that the statement made by the petitioner in the counter affidavit filed before this Court in the writ petition enjoys absolute privilege and it excludes criminal liability. 20. After a survey of the decisions on the point in Varghese Cor Episcopa v. State of Kerala : 2020KHC 390 this Court had occasion to hold that the privilege defined by the exceptions to Section 499 of the Indian Penal Code must be regarded as exhaustive as to the cases which they purport to cover and recourse cannot be had to the English Common Law to add new grounds of exception to those contained in the statute and in determining the criminality of an act under the Indian Penal Code the Courts will not extend the scope of special exceptions by resorting to the rule peculiar to English 21. Freedom of speech and expression is a fundamental right under the Constitution. But all fundamental rights are subject to reasonable restrictions. Section 499 of the Indian Penal Code does not give absolute privilege to statements made Crl.MC.No.534 OF 2016(F in a Court of law in the judicial proceedings. The privileges recognised under Section 499 of the Indian Penal Code are qualified. However in a civil action for defamation plea of absolute privilege is a valid defence. 22. Yet another plea raised by the petitioner is that he is entitled to the fifth and eighth exceptions provided to Section 499 of the Indian Penal Code. Whether the petitioner is entitled to get the benefit of any of the exceptions provided to Section 499 of the Indian Penal Code whether he had made the statement in the counter affidavit filed in the writ petition in good faith for protection of his interest etc. are matters which cannot be decided by this Court in this petition filed under Section 482 Cr.P.C. 23. Ordinarily the question as to whether the statement in a given case falls under any of the ten exceptions to Section 499 of the Indian Penal Code will have to be decided only after trial. They are matters of evidence.6 SCC 263 Balraj Khanna v. Moti Ram : AIR 1971 SC 1389 and Jeffrey J. Diermeier v. State of West Bengal 2010) 6 SCC 243 24. The result of the discussion above is that the prayer Crl.MC.No.534 OF 2016(F made by the petitioner for quashing Annexure K complaint and the criminal proceedings initiated against him by the complainant cannot be allowed Consequently the petition is dismissed Sd R. NARAYANA PISHARADI JUDGE Crl.MC.No.534 OF 2016(F PETITIONER S S EXHIBITS TRUE COPY OF LETTER DATED 03.10.2009 ISSUED BY THE 1ST RESPONDENT TRUE COPY OF UNDERTAKING DATED 23.03.2000 ISSUED BY THE 1ST RESPONDENT IN O.S.NO.1515 2009 OF MUNSIFF S COURT TRUE COPY OF UNDERTAKING DATED 23.03.2000 ISSUED BY THE 1ST RESPONDENT IN O.S.NO.1539 2009 OF MUNSIFF S COURT TRUE COPY OF UNDERTAKING DATED 23.03.2000 ISSUED BY THE 1ST RESPONDENT IN O.S.NO.1540 2009 OF MUNSIFF S COURT TRUE COPY OF LETTER DATED 24.10.2011 ISSUED BY THE COMPANY TO THE 1ST TRUE COPY OF C.C.NO.140 OF 2012 FILED BY THE COMPANY BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM THRISSUR AGAINST THE 1ST RESPONDENT ON TRUE COPY OF C.P.NO.45 2012 FILED BY THE COMPANY BEFORE THE BAR COUNCIL OF KERALA AGAINST THE 1ST RESPONDENT TRUE COPY OF WRIT PETITION NO.5239 OF 2013 FILED BY THE 1ST RESPONDENT BEFORE THIS HON BLE COURT TRUE COPY OF COUNTER AFFIDAVIT IN W.P C) NO.5239 2013 FILED BY THE PETITIONER BEFORE THIS HON BLE COURT TRUE COPY OF JUDGMENT IN W.P.(C) NO.5239 2013 DATED 10.06.2013 OF THIS HON BLE COURT TRUE COPY OF COMPLAINT AS Crl.MC.No.534 OF 2016(F M.P.NO.2850 2015 FILED BY THE 1ST RESPONDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT THRISSUR RESPONDENTS EXHIBITS: NIL P.A TO JUDGE

Summary: Any defamatory statement during the judicial proceedings, does not fall under the exceptions listed in section 499 of IPC and cannot be excluded from criminal liability. This was decided in the case of Joy Anto vs. the State Of Kerala [Crl.MC.No.534 OF 2016(F)] in the High Court Of Kerala by single bench consisting of Hon’ble Justice Narayana Pisharadi. This is a defamation case which arose after a series of events. The petitioner, who was a professor in a college was also the chairman of a company, got into a rift with the legal advisor (complainant in this case) of the same company. The company had engaged the complainant to institute suits for realisation of money due from the subscribers and there was an allegation that he did not institute the suits after receiving money from the company towards the expenses and thereafter he resigned from the post. Later, a writ petition was filed for conducting domestic enquiry against the petitioner on the allegation that while working as a Senior Lecturer, he had also engaged in the business activities of the company. As a response to this in the affidavit, the petitioner in this case replied that writ petitioner was an associate of the complainant who was removed from the company for proved misappropriation of the funds of the company. This statement made is the reason for the FIR of defamation case under Section 500 of the IPC against the petitioner by the complainant. Counsel for petitioner made the following contentions: (1) The statements made about the complainant in counter affidavit are not defamatory in nature. (2) it does not amount to publication. (3) No criminal liability would arise on making any defamatory statement in a judicial proceeding before a court of law With respect to the contention of judicial proceedings was concerned, the court said there is no merit in the contention that the statement made by the petitioner in the counter affidavit filed before this Court in the writ petition enjoys absolute privilege and it excludes criminal liability. After a survey of the decisions on the point, in Varghese Cor Episcopa v. State of Kerala 2020 (1) KHC 390, this Court said “that the privilege defined by the exceptions to Section 499 of the Indian Penal Code must be regarded as exhaustive as to the cases which they purport to cover and recourse cannot be had to the English Common Law to add new grounds of exception to those contained in the statute”. The court observed that the statement that the complainant was removed from the company on proved misconduct and on misappropriation of the funds of the company, is prima facie, defamatory to him. It further went on to say that as the complainant is a lawyer, this would harm his reputation as a lawyer. The petitioner has got no plea that any competent authority had found the complainant guilty of misconduct. Also, the court asserted that once a statement is filed in a Court of law, it can be considered as published after relying upon the case of Google India Private Limited v. M/s Visakha Industries [AIR 2020 SC 350) where it was held that “The essence of publication in the context of Section 499 of the Indian Penal Code is the communication of the defamatory imputation to persons other than the person against whom the imputation is made”