IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5609 OF 2015 BETWEEN:
1. SRI B V SEETHARAM S/O LATE VENKATARAMANA AGED ABOUT 59 YEARS 2. SMT.ROHINI S.
W/O B.V.SEETHARAM AGED ABOUT 59 YEARS BOTH RESIDING AT KARAVALI HOUSE VISHNUMURTHY TEMPLE ROAD KULAI, MANGALURU-575019 DAKSHINA KARNATAKA ... PETITIONERS (BY SRI: GANAPATHI C.V. ADVOCATE FOR SRI: SANKET M YENAGI, ADVOCATE) AND:
PADMABHOOSHANA DR D VEERENDRA HEGGADE DHARMAADHIKARI SHREE KSHETRA DHARMASTALA REPRESENTED BY HIS G.P.A HOLDER SRI.B.VARDHAMAN S/O SHANTHIRAJ SHETTY AGED ABOUT 54 YEARS RESIDING AT NO.14-4-407 PALNEER ROAD, MANGALURU, DISTRICT-DAKSHINA KANNADA-575001.
... RESPONDENT (BY SRI: P P HEGDE, ADVOCATE) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE PROCEEDINGS IN C.C.NO.2984/2013 PENDING ON THE FILE OF THE J.M.F.C.-III COURT, MANGALORE IN SO FAR AS THE PETRS. ARE CONCERNED AND CONSEQUENTLY QUASH OR SET ASIDE THE ORDER DATED 25.07.2015 PASSED BY THE I ADDL. DIST. AND S.J., D.K., MANGALORE IN REVISION PETITION NO.129/2015.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners are accused Nos.1 and 2 in C.C.No.2984/2013. They have sought to quash the above proceedings on two grounds.
Firstly, it is contended that the petitioners are neither the “Printers, Publishers or Editors” of “Karavali Ale” wherein the defamatory articles are said to have been published.
Secondly, the complaint in question is presented through the Power of Attorney of the complainant which is not permissible in view of the bar contained in section 199(1) Cr.P.C.
2. The facts leading to the institution of the above proceedings are as follows:-
The respondent herein filed a complaint in PCR.No.177/2012 under section 200 Cr.P.C., seeking action against the petitioners and another (hereinafter referred to accused No.3) for the offences punishable under sections 500, 501, 502, 505(1) read with 34 of IPC and sections 66A, 67A of Information Technology Act. The allegation made in the complaint is that the petitioner No.1 being the Managerial Editor and Chief Editor, petitioner No.2 being the Administrative Director and accused No.3 being the Publisher, Printer and Editor of an evening daily newspaper ‘Karavali Ale’, published defamatory matters pertaining to the complainant and Dharmastala Kshetra of which the respondent is the Dharmadhikari. It is also alleged that the defamatory statements were published regarding the management and the employees of the said religious centre.
3. Learned counsel for the petitioners has raised two fold contentions.
Firstly, he contends that the petitioners herein are neither the Publishers, Printers or the Editors of the said publication.
They are mere owners of the Chitra Publications. The newspaper is edited, printed and published by accused No.3. A declaration to this effect as required under the Press and Registration of Books Act, 1867 is printed in the said publication, making it evident that the said newspaper is being published, edited and printed by accused No.3 and hence, prosecution of the petitioners is wholly illegal and contrary to the provisions of the Press and Registration of Books Act, 1867.
Secondly, he contends that sub-section (1) and the proviso to section 199 of Cr.P.C., debars the court from taking cognizance of any offence punishable under Chapter XXI of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence. The proviso to the said section lays down that where such person is under the age of 18 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 her behalf. The respondent herein does not fall within any one of the disabilities provided under the proviso and moreover no leave of the court was obtained to present the complaint through the Power of Attorney and hence, presentation of the complaint itself being opposed to the provisions of section 199 of Cr.P.C., the entire proceedings are vitiated and are liable to be quashed.
In support of his arguments, learned counsel has placed reliance on the decision of the Hon’ble Supreme Court of India in FR. THOMAS MANIANKERIKALAM vs. THOMAS J.PADIYATH reported in 2003 Crl.L.J. 945.
4. Disputing the contentions, learned counsel appearing for the respondent would submit that the complainant is an “aggrieved person” as defined under section 199 of Cr.P.C. The Power of Attorney of the respondent is also aggrieved by the defamatory publications made by the petitioners and accused No.3. Necessary averments in this regard find place in the complaint. Therefore, there is no illegality in presentation of the complaint. In support of his argument, learned counsel has placed reliance on the decision of this court in B.V.SEETARAM & Others vs. Dr.D.VEERENDRA HEGGADE in Crl.P.No.4647/2004 and connected matters disposed of on 30.01.2008 and with reference to para 11 thereof, has emphasized that Power of Attorney holder also being one of the members of the management of Dharmastala Kshetra is also aggrieved by alleged defamatory statements and therefore, presentation of the complaint through Power of Attorney is in accordance with section 199 of Cr.P.C. Further learned counsel has referred to the decision in A.C.NARAYANAN vs. STATE OF MAHARASHTRA & Others reported in (2014) 11 SCC 790 and with reference to para 27 has emphasized that section 200 Cr.P.C. does not create any restriction in presentation of the complaint through Power of Attorney holder or legal representatives of the aggrieved persons. Therefore, the contention raised by the petitioners is liable to be rejected.
5. Having considered the rival contentions, in the light of the law laid down by the Hon’ble Supreme Court in the above decisions, in my view, this petition could be disposed of on the short question as to whether a complaint under Section 499/500 Indian Penal Code can be filed through power of attorney of the aggrieved person?
6. Undisputedly, the complaint in the instant case is presented by Sri.B.Vardhaman, as the Power of Attorney of the complainant Padmabhushana Dr.D.Veerendra Heggade. Section 199 of Cr.P.C. lays down the procedure for prosecution for defamation. The section is extracted 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.
7. Dealing with the said provision, the Hon’ble Supreme Court in Fr. Thomas Maniankerikalam’s case referred to above, 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) 8. The decision relied on by the learned counsel for the petitioner is rendered under section 200 Cr.P.C. Section 199 Cr.P.C. lays down an exception to the general procedure that is 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 to the section makes it abundantly clear that except the persons who are exempted under the proviso could file complaint for the offence under Section 499 of Indian Penal Code. As held by the Hon’ble Supreme Court in the case of JOHN THOMAS VS. DR.K.JAGADEESAN in V(2001) SLT 200:
“The collocation of the words “by some persons aggrieved” definitely indicates that the complainant need not necessarily be the defamed person himself. Whether the complainant has reason to feel hurt on account of the publication is a matter to be determined by the Court depending upon the facts of each case. If a company is described as engaging itself in nefarious activities its impact would certainly fall on every Director of the company and hence he can legitimately feel the pinch of it. Similarly, if a firm is described in a publication as carrying on offensive trade, every working partner of the firm can reasonably be expected to feel aggrieved by it. If K.J.Hospital is a private limited company, it is too far-fetched to rule out any one of its Directors, feeling aggrieved on account of pejoratives hurled at the company. Hence the appellant cannot justifiably contend that the Director of the K.J.Hospital would not fall within the wide purview of “some person aggrieved” as envisaged in section 199(1) of the Code.”
9. Therefore, the law on the point leaves no manner of doubt that the “person aggrieved” as envisaged in Section 199(1) of Cr.P.C., can maintain the complaint for defamation. The section does not authorize the power of attorney to present the complaint on behalf of the aggrieved person. The stand of the learned counsel for the respondent, that the power of attorney of the complainant is also aggrieved by the impugned publication and therefore he is entitled to maintain the complaint cannot be accepted. It is trite law that power of attorney holder is the agent of the principal/grantor. When the principal authorizes the attorney holder to initiate legal proceedings on his behalf and the attorney holder accordingly initiates legal proceedings, he does so as the agent of the principal and not in his personal capacity. For all purposes, the legal proceedings are initiated by the principal represented by his power of attorney. During the subsistence of the agency, he cannot act against the interest of the principal nor can he ostensibly act as the principal. Therefore, without entering into any further discussion on the issue, the petition deserves to be allowed. Since I have decided to remand the matter, the other contentions urged by the learned counsel for the petitioner are kept open.
10. In so far as the offence under Section 67A of the I.T. Act is concerned, the bar contained under section 199 Cr.P.C. is not applicable to the offences under section 67A of the Information Technology Act. Section 67A reads as under:-
“67A. Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form.
-Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.
11. The contention of the petitioners is that the petitioners are neither the publishers nor the editors or the printers of the said publication and therefore, they are not answerable to the charge under section 67A of Information Technology Act. From the reading of the above section, it is clear that not only the publisher is answerable to the charges, but also the person who transmits or cause to be published or transmits in electronic form any material which contains sexually explicit act or conduct shall also be equally liable for the said offences. Since there are specific allegations that the petitioners herein transmitted or caused to be transmitted the defamatory contents, there is no escape from the proceedings initiated against the petitioners for the offences punishable under section 67A of the Information Technology Act.
Accordingly, answering the above points, I proceed to pass the following:-
ORDER (i) Petition is allowed-in-part.
(ii) Prosecution of the petitioners/accused Nos.1 and 2 in C.C.No.2984/2013 pending on the file of the JMFC (III Court), Mangaluru, for the offences punishable under sections 500, 501, 502, 505(1) read with 34 of IPC is quashed.
(iii) The order dated 25.07.2015 passed by the I Additional District and Sessions Judge, Dakshina Kannada, Mangaluru in Criminal Revision Petition No.129/2015 is set aside only insofar as petitioners herein namely accused Nos.1 and 2 in C.C.No.2984/2013 are concerned.
(iv) The matter is remanded to the trial court.
(v) Liberty is given to the complainant to file a fresh complaint in accordance with law.
(vi) Since the complainant has been bonafide prosecuting the complaint in C.C.No.2984/2013, following the decision in Fr.Thomas Maniankerikalam’s case, referred supra, the time taken for prosecution of the compliant should be excluded in computing period of limitation.
(vii) Trial of the petitioners under section 67A of the Information Technology Act read with 34 of IPC shall be proceeded with in accordance with law.
Sd/- JUDGE Bss/mn/-.