IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28th DAY OF MAY, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRL.P.NO.5135/2014 C/W CRL.P.NO.4900/2016 IN CRL.P.NO.5135/2014 BETWEEN:
1. V.M.GANGADHAR S/O MOTE GOWDA, AGED ABOUT 59 YEARS, R/O SOLLEPURA VILLAGE, MADDUR TALUK, MANDYA DISTRICT-571 428.
2. V.N.RAVI S/O NAGARAJU, AGED ABOUT 37 YEARS, R/O VOLAGEREHALLI VILLAGE, MADDUR TALUK, MANDYA DISTRICT-571 428.
3. K.M.NAGARAJU S/O K.C.MARISWAMY, AGED ABOUT 34 YEARS, R/O KONANAHALLI VILLAGE, KASABA HOBLI, MADDUR TALUK, MANDYA DISTRICT-571 428.
…PETITIONERS (BY SRI HANUMAIAH H.C., ADVOCATE) AND:
1. S.D.VIJAY S/O LATE S.C.DEVEGOWDA, AGED ABOUT 39 YEARS, MEMBER OF GRAMPANCHAYATH, R/O NO.2, VIJAY COMPLEX, GUTTALU ROAD, SUGAR FACTORY CIRCLE, MANDYA CITY AND DISTRICT-571 401.
2. STATE OF KARNATAKA BY MANDYA EAST POLICE STATION, BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE-560 001.
... RESPONDENTS (BY SRI BASAVARAJU P., ADV., FOR R1 SRI NASRULLA KHAN, HCGP FOR R2) THIS CRIMINAL PETITION IS FILED U/S.482 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DT.21.7.2012 IN C.C.NO.724/2012 PENDING ON THE FILE OF THE PRL.
C.J. (JR.DN.) AND JMFC., MANDYA DIRECTING THE ISSUE OF SUMMONS TO THE PETITIONERS FOR AN OFFENCE P/U/S. 500 OF IPC.
IN CRL.P.NO.4900/2016 BETWEEN:
1. V.M.GANGADHAR S/O MOTE GOWDA, AGED ABOUT 60 YEARS, R/O SOLLEPURA VILLAGE, MADDUR TALUK, MANDYA DISTRICT-571 428.
2. V.N.RAVI S/O NAGARAJU, AGED ABOUT 40 YEARS, R/O VALGERAHALLY VILLAGE, MADDUR TALUK, MANDYA DISTRICT-571 428.
3. K.M.NAGARAJU S/O K.C.MARISWAMY, AGED ABOUT 37 YEARS, R/O KONANAHALLI VILLAGE, KASABA HOBLI, MADDUR TALUK, MANDYA DISTRICT-571 428.
…PETITIONERS (BY SRI HANUMAIAH H.C., ADVOCATE) AND:
1. S.P.SHIVAPA ADVOCATE AGED ABOUT 38 YEARS, S/O PUTTASWAMY, NO.159/1, OOTY ROAD, GOWRISHANKARANAGARA, MYSORE-570 025.
2. STATE OF KARNATAKA BY MANDYA EAST POLICE, BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BANGALORE-560 001.
(BY SRI SIDDARAJU M., ADV., FOR R1 SRI NASRULLA KHAN, HCGP FOR R2) ... RESPONDENTS THIS CRIMINAL PETITION IS FILED U/S.482 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DT.19.10.2015 IN C.C.NO.2267/2015 (PCR.NO.44/2012) ON THE FILE OF THE PRL. C.J AND JMFC., MANDYA DIRECTING THE ISSUE OF SUMMONS TO THE PETITIONERS FOR AN OFFENCE P/U/Ss 499 AND 500 OF IPC.
THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners are aggrieved by the initiation of criminal proceedings against them in C.C.No.724/2012 and C.C.No.2267/2015 (PCR.No.44/2012) for the offences punishable under Sections 499 and 500 of IPC.
2. Heard learned counsel for petitioners, learned counsel for respondent No.1 and learned High Court Government Pleader for respondent No.2 - State and perused the records.
3. The case of respondent No.1 is that, petitioner No.1 lodged a false complaint against him, based on which, Crime No.30/2008 was registered against respondent No.1 and others for the offences punishable under Sections 376 and 302 read with Section 34 of IPC. In the said complaint, petitioner No.1 made false and baseless imputations with intent to harm the reputation of respondent No.1 stating that on 08.03.2008 in the night when his wife was alone in the house, respondent No.1 and his accomplices committed rape and murdered her. Further, it is stated that petitioner No.1/accused No.1 and other petitioners namely accused Nos.2 and 3 gave a statement before the Investigating Officer casting aspersions on respondent No.1 that he was responsible for the death of late Smt. Lakshmi.
4. Learned counsel for petitioners has urged two fold contentions:
Firstly, he contends that the learned Magistrate has proceeded to record the sworn statement of the complainant without taking cognizance of the alleged offence contrary to the provision of Section 200 of Cr.P.C. Further relying on Eighth Exception appended to Section 499 of IPC, he contends that the allegations made in the complaint as well as in the statement given before the Investigating Officer do not furnish a cause of action for the respondent to lodge complaint against the petitioners. The accusations made against any person to any of those persons who have lawful authority over that person does not amount to defamation. Hence, the prosecution of petitioners being illegal and abuse of process of court, seek to quash the proceedings in exercise of the jurisdiction under Section 482 of Cr.P.C.
In support of his submission, learned counsel has placed reliance on the decision of the Hon’ble Supreme Court in Rajendra Kumar Sitaram Pande and Others Vs. Uttam and Another reported in (1999) 3 SCC 134 with reference to paragraph No.7 thereof.
5. Refuting the above submissions, learned counsel for respondent No.1 has drawn my attention to the relevant statement of petitioner No.1 in the complaint and other statements made by petitioner Nos.2 and 3 under Section 161 of Cr.P.C., and would contend that these statements are per se defamatory and scurrilous. The very fact that the Investigating Officer has filed ‘B’ report in the matter would indicate that the allegations made by the petitioners were false, baseless and were intended to malign the name of respondent No.1. The intention of petitioners is evident from the fact that, after lodging the complaint, wide publicity was given in newspaper, as a result, there being prima facie material in proof of the alleged offence, learned Magistrate was justified in issuing summons to the petitioners, hence, there is no reason to quash the proceedings.
6. I have considered the submissions and perused the records.
7. Dealing with the first contention urged by the learned counsel for the petitioners is concerned, the order sheet in PCR.No.58/2011 reveals that on 23.02.2011, learned Magistrate received the complaint from respondent No.1 and without taking cognizance of offence, straightaway recorded the statement of the complainant. The relevant order sheet reads as under:
“Complainant present. Sworn statement of the complainant recorded in part. For further sworn statement by 28.02.2011”.
8. Section 200 of Cr.P.C., reads as under:
“Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complainant; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them”.
Reading of the above provision makes it clear that the learned Magistrate could proceed to record the statement of the complainant and the witnesses present only upon taking cognizance of the offence on the basis of the complaint submitted before it. Since the learned Magistrate has failed to follow this mandatory requirement, the entire proceedings are vitiated on that count.
9. Coming to the merits of the case, undeniably the offending statements were made by the petitioners in the complaint lodged before the police and in the statement given by them before the Investigating Officer under Section 161 of Cr.P.C. Even in these statements petitioners have not imputed any aspersions against the respondent. They are in the nature of hearsay statements. Therefore, it cannot be said that the statements made by the petitioners were calculated to harm the reputation of respondent No.1, rather reading of the complaint indicate that the said information was given to the police authorities with a view to take action in respect of the unnatural death of the deceased. In the said statement except casting suspicion on respondent No.1 and his accomplices, no offending statements are made falling within the mischief of Section 499 of IPC.
In the statement recorded by the Investigating Officer, the only allegation made by the petitioners is that respondent No.1 was responsible for the death of the deceased. The said statement was made before the police under Section 161 of Cr.P.C. It is trite law that the statement made before the police has no evidentiary value except to the extent provided in Section 162 Cr.P.C. That apart, Eighth Exception to Section 499 of IPC provides an immunity with regard to the statement before the authority.
10. Eighth Exception of Section 499 of IPC reads as under:
“Eighth Exception.—Accusation preferred in good faith to authorised person.—It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation”.
11. Dealing with the said provision, the Hon’ble Supreme Court in Rajendra Kumar Sitaram Pande and Others Vs. Uttam and Another reported in (1999) 3 SCC 134 at paragraph No.7 held as under:
“The next question that arises for consideration is whether reading the complaint and the report of the Treasury Officer which was obtained pursuant to the Order of the Magistrate under sub-section (1) of Section 201, can it be said that a prima facie case exists for trial or Exception 8 to Section 400 clearly applies and consequently in such a case, calling upon the accused to face trial would be a travesty of justice. 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 Treasury Officer and the Collector and circulated in the office in the 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. 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 Indian Penal Code 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 to any of those who have lawful authority over that person with regard to the subject-matter of accusation. The report of the Treasury Officer clearly indicates that pursuant to the report made by the accused persons against the complainant, a departmental inquiry had been initiated and the complainant was found to be guilty. Under such circumstances the fact that the accused persons had made a report to the superior officer of the complainant alleging that he had abused to the 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 the Indian Penal Code. By perusing the allegations made in the complaint petition, we are also satisfied that no case of defamation has been made out. In this view of the matter, requiring the accused persons to face trial or even to approach the Magistrate afresh for reconsideration of the question of issuance of process would not be in the interest of justice. On the other hand in our considered opinion, this is a fit case for quashing the order of issuance of process and the proceedings itself. We, therefore, set aside the impugned order of the High Court and confirm the order of the learned Sessions Judge and quash the criminal proceeding itself. This appeal is allowed”.
12. In the light of these factual and legal position, the proceedings initiated against the petitioners cannot be sustained. The allegations made in the private complaint do not prima facie constitute the ingredients of the offence under Section 499 of IPC. As a result, the proceedings initiated against the petitioners being illegal and abuse of process of Court are liable to be quashed.
13. Accordingly, criminal petitions are allowed.
The proceedings initiated against the petitioners in C.C.No.724/2012 and C.C.No.2267/2015 (PCR.No.44/2012) are hereby quashed.
In view of disposal of main petitions, I.A.No.1/2014 does not survive for consideration and the same is disposed of.
Sd/- JUDGE PB