IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.1752 OF 2016 BETWEEN:
RANJAN RAO YERDOOR S/O. LATE SHIVASHANKAR RAO, AGED ABOUT 60 YEARS, R/AT "SASYODAYANA", SHAKTHINAGARA, P.O. GURUVAYANAKERE-574 217, BELTHANGADY TALUK, DAKSHINA KANNADA DISTRICT. ... PETITIONER (BY SRI: PRAMOD N. KATHAVI, ADVOCATE) AND SRI. D. VEERENDRA HEGGADE S/O. RATHNAVARMAN HEGGADE, AGED ABOUT 66 YEARS, DHARMADHIKARI, SHREE KSHETHRA DHARMASTHALA DHARMASTHALA, DAKSHINA KANNADA., REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, RATHNAVARMA BUNNU, AGED ABOUT 52 YEARS, S/O. SHRIVARMA BUNNU, R/AT RAJATHAGIRI DHARMASTHALA, BELTHANGADY TALUK-574 216.
(BY SRI: P P HEGDE, ADVOCATE) ... RESPONDENT THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE PROCEEDINGS IN C.C.NO.57/2016 PENDING ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, BELTHANGADY (ANNEXURE-A).
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard learned counsel for the petitioner and learned counsel appearing for the respondent.
Petitioner is accused in C.C.No.57/2016 for the offence punishable under section 500 of Indian Penal Code, Petitioner has sought to quash the said proceedings pending on the file of the Principal Civil Judge & JMFC, Belthangady, on the ground that presentation of the complaint against the petitioner is contrary to the provisions contained in section 199 Cr.P.C.
2. It is contended that the respondent/complainant sought prosecution of the petitioner for the offence punishable under section 500 Cr.P.C., on the ground that the petitioner has made defamatory remarks against the respondent in the complaint lodged by him before the Belthangady Police in Crime No.503/2015 (Annexure-‘C’). According to the complainant, the following substance contained in the said complaint amounts to defamation.
“6. Shri D.Veerendra Heggade assumed the office of the President BSMB Society, and along Shri Ratnavarma Bunnu, the Secretary fraudulently appropriated the entrusted property of 20 cents of land by surreptitiously registering it in the name of Shantivana Trust, of which Shri D.Veerendra Heggade is also the President. A copy of the said sale deed No.592/89-90 entered upon on 24.08.1989 is enclosed and marked as Annexure-6.”
3. The principal contention urged by the learned counsel for the petitioner is that the complaint in question is presented through Power of Attorney of the complainant which is not permissible in view of the bar contained in section 199 Cr.P.C. Learned counsel for the respondent however disputes the submission and submits that the learned Magistrate having taken cognizance of the offences and having permitted the Power of Attorney of the complainant to give his sworn statement, it is deemed that the learned Magistrate has granted leave to the Power of Attorney to present the petition and the same is in accordance with the proviso to section 199 of Cr.P.C. and hence there is no error or illegality whatsoever either in the presentation of the complaint or in the act of taking cognizance by the learned Magistrate. Further it is contended that there are clear averments in the complaint that the Power of Attorney of the complainant was also an aggrieved party and therefore, the Power of Attorney being the aggrieved person, complaint filed by him in respect of the alleged defamation is also tenable in the eye of law.
4. Considered the submissions and perused the records.
A reading of the complaint indicates that the complainant was represented by his Power of Attorney Shri Rathnavarma Bunnu. Section 199 Cr.P.C. reads as under:
199. Prosecution for defamation.
(1) No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860 ) except upon a complaint made by some person aggrieved by the offence:
Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court make a complaint on his or her behalf.
(2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 of 1860 ) is alleged to have been committed against a person who, at the time of such commission, is the President of India, the Vice- President of India, the Governor of a State, the Administrator of a Union territory or a Minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor.
5. Dealing with the said provision, the Hon’ble Supreme Court in FR. THOMAS MANIANKERIKALAM vs. THOMAS J.PADIYATH reported in LAWS (SC) 2005 4 3 = 2005(7) SCALE 187, has held as under:
“By the impugned order, the High Court refused to quash prosecution of the appellants under S.500 of Indian Penal Code. The point involved in this case is as to whether the complainant was justified in authorising Power of Attorney Holder to file the complaint under proviso to S.199(1) of the Code of Criminal Procedure, 1973, which lays down that where a complainant is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf. In the present case, the complainant himself did not file the complaint because he was residing in Dubai, which was not a ground under the said proviso. As such the complainant was not justified in authorizing the Power of Attorney Holder to file the complaint on his behalf. This being the position, we are of the view that the complaint, having not been presented in accordance with the provisions of S.199(1) of the Code of Criminal Procedure, 1973, as such prosecution of the appellants is fit to be quashed.”
(underlining supplied) 6. The decision relied on by the learned counsel for the petitioner is rendered in the context of section 200 Cr.P.C. Section 199 Cr.P.C. lays down an exception to the general procedure contemplated under section 200 Cr.P.C. By virtue of section 199 of Cr.P.C., when the accused is sought to be prosecuted for the offence under Chapter XXI of the Code, no court shall take cognizance of the offence except upon a complaint made by some person aggrieved by the said offence.
The proviso appended to the section makes it abundantly clear that except the persons exempted under the proviso to section 199 Cr.P.C., namely the person below the age of eighteen years, or is an idiot or a lunatic, or is suffering from sickness or infirmity or is a woman who, according to the local customs and manners ought not to be compelled to appear in public, only aggrieved person could present the complaint as held by the Hon’ble Supreme Court in the above decision. The section does not require the complaint to be made only by the person defamed. The collocation of the words “by some person aggrieved” indicates that even a person aggrieved by the defamation can maintain the complaint for defamation. But the section does not authorize the power of attorney to present the complaint on behalf of the aggrieved person. Therefore, without entering into any further discussion on the issue, I hold the complainant was not justified in authorizing his power of attorney to file the complaint on his behalf.
7. Insofar as the contention urged by the learned counsel for the respondent that the Power of Attorney of the complainant was also an aggrieved person and therefore, he is entitled to present the complaint on behalf of the complainant is contrary to the specific provision of section 199 Cr.P.C. That apart, it is a matter of record that the Power of Attorney himself has filed a separate complaint in his individual capacity and it is stated in the memorandum of the instant petition that the complaint filed by the Power of Attorney is numbered as PC.No.2/2016. Therefore, having filed a separate complaint, the Power of Attorney cannot seek to sustain the instant complaint filed on behalf of the complainant on the specious plea that he is also aggrieved by the alleged offences. In view of the above, the complaint is liable to be quashed. Hence the following order:
(i) Petition is allowed.
(ii) The compliant filed through the Power of attorney of the complainant for the offence punishable under section 500 of Indian Penal Code in C.C.No.57/2016 on the file of the Principal Civil Judge & JMFC, Belthangady is quashed.
(iii) The matter is remitted to the trial court.
(iv) Liberty is granted to the complainant/respondent to file a fresh complaint in accordance with law.
(v) Limitation, if any, in presenting the fresh complaint on the same cause of action shall stand excluded.
In view of disposal of the main matter, I.A.No.1/2016 for stay does not survive for consideration. Accordingly, it is dismissed.
Sd/- JUDGE Bss/mn/-