Madras High Court
R.Vivekanandan vs P.Jagan on 16 November, 2021
Crl.O.P.No.19740 of 2017 and
Crl.M.P.Nos.11908 & 11909 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date: 16.11.2021
CORAM:
THE HONOURABLE MR. JUSTICE N.SATHISH KUMAR
CRL.O.P.No.19740 of 2017 and
CRL.M.P.Nos.11908 & 11909 of 2017
R.Vivekanandan ...Petitioner
Vs
P.Jagan ...Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Code of
Criminal Procedure, to call for the records relating to the impugned
complaint in C.C.No.625/2017 on the file of the VII Metropolitan
Magistrate, George Town, Chennai and quash the same.
For Petitioner : Mr.R.Karthikeyan
For Respondent : No appearance
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Crl.O.P.No.19740 of 2017 and
Crl.M.P.Nos.11908 & 11909 of 2017
ORDER
This petition has been filed to quash the private complaint filed for
the offence under section 500 of IPC in C.C.No.625 of 2017 on the file of
the VII Metropolitan Magistrate, George Town, Chennai.
2. It is the contention of the defacto complainant that the petitioner
has caused imputation by calling him as impotent in the public and also in
front of relatives and not stopping with that, the petitioner has filed an
Original Petition in O.P.No.2992 of 2015 before the I Additional Judge,
Family Court, Chennai against the defacto complainant and his mother and
in that Original Petition, he has filed an interlocutory application in
I.A.No.2552 of 2016, wherein he has stated that “Since the first respondent
has no potency to have the child on his own.” Hence, it is the contention of
the petitioner that the above statement is made in public which damaged his
reputation, thereby initiated proceedings under section 500 of IPC.
3. The learned counsel for the petitioner submitted that O.P.No.3992
of 2015 has been filed for custody of the child of the petitioner and he is the
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Crl.O.P.No.19740 of 2017 and
Crl.M.P.Nos.11908 & 11909 of 2017
father of the child. The defacto complainant is the brother-in-law of the
petitioner. After the death of the wife of the petitioner, the respondent and
his mother detained the child and the petitioner has filed a petition for
custody of the child. Therefore, some allegations made in an interlocutory
petition cannot be taken as a defamatory statement. It is his further
contention that there is no materials available on record to show that such
statement has in fact harmed the reputation of the petitioner. Hence, prayed
to quash the proceedings as against the petitioner.
4. Despite service of notice and name printed in the cause list, there
is no representation for the respondent.
5. The petitioner is the brother-in-law of the defacto complainant and
the defacto complainant has filed a petition before the I Additional Judge,
Family Court, Chennai for custody of the child. These facts are not in
dispute. The defacto complainant filed a private complaint against the
petitioner stating that he has harmed his reputation by calling him as
impotent in public and also in front their relatives. Further, he has made a
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Crl.O.P.No.19740 of 2017 and
Crl.M.P.Nos.11908 & 11909 of 2017
statement in an interlocutory application filed before the I Additional
Family Court stating that “Since the first respondent has no potency to have
the child on his own.”
6. It is not in dispute that that private complaint has been filed for
lowering reputation of the respondent. It is the contention of the defacto
complainant that statements made in the interlocutory application filed by
the petitioner amounts to imputation. It is to be noted that the Original
petition has been filed for the custody of the petition. The allegations in the
interlocutory application cannot be considered as imputation at all. If the
statements stated in the interlocutory applications are considered as an
imputation and complaint is entertained and there will be a prosecution as a
counter blast for every application. In this regard, it is relevant to refer a
judgment of this Court in Geetha Vs. A.K.Dhamodharan in Crl.R.C.No..784
of 2009, dated 28.06.2021, wherein it has been held as follows :
“Here, it is pertinent to note that admittedly, the case is
subjudice and it is yet to be disposed of. It is confined to
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Crl.O.P.No.19740 of 2017 and
Crl.M.P.Nos.11908 & 11909 of 2017
comments on cases which are decided by Court and not to
those cases which are subjudice. It does not cover pending
matters in Court. Pending matters are immune from
comments. Considering the same, the respondent/husband
herein has filed a divorce petition on the ground of adultery
and cruelty. He also filed a suit and made an allegation
against her wife, stating that she is leading adultery life with
one Anju @ Prakash, who is none other than friend of her
elder son. He also pleaded that it is an illegal act and the case
is yet to be disposed of. In such circumstances, whether the
fact has been true or not is yet to be decided. Hence, whether
the statement is true or defamatory and that has been decided
after the disposal of the case. In such circumstances, I am of
the opinion, as per the dictum of 1987 (3) SCC 34, pending
matters are immune from comments made by the parties. The
averments mentioned in the pleadings filed before the judicial
forum is not coming under the purview of Section 499 I.P.C.,
wherein the proceedings are pending and subjudice. Hence,
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Crl.O.P.No.19740 of 2017 and
Crl.M.P.Nos.11908 & 11909 of 2017
there is no prima facie case has been made out for taking
cognizable offence under Sections 499, 500, 501 and 502 of
I.P.C. against the respondent/husband. So the learned
Magistrate has considered all the aspects in proper
perspective and came to the correct conclusion and hence, the
criminal revision is dismissed as devoid of merits.”
7. In the light of the above judgment, the averments made in the
pending matters before the judicial forum will not come under the purview
of Section 499 I.P.C., wherein the proceedings are pending and subjudice.
In this present case also, the main petition filed for custody of the child is
pending before the I Additional Family Court and there is no material
available from the complaint that such an imputation or statement has
lowered the reputation of the defacto complainant. Therefore, complaint for
prosecution for the alleged offence punishable under Section 499 of the
Indian Penal Code cannot be entertained. Therefore, this Court is of the
considered view that continuation of prosecution is nothing but a waste of
time.
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Crl.O.P.No.19740 of 2017 and
Crl.M.P.Nos.11908 & 11909 of 2017
8. Accordingly, this Criminal Original Petition is allowed and the
private complaint filed in C.C.No.625 of 2017 on the file of the learned VII
Metropolitan Magistrate, George Town, Chennai is quashed. Consequently,
connected miscellaneous petitions are closed.
16.11.2021
vrc/kbs
Index : Yes
Internet : Yes
Speaking Order
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.19740 of 2017 and
Crl.M.P.Nos.11908 & 11909 of 2017
N.SATHISH KUMAR, J.
vrc/kbs
CRL.O.P.No.19740 of 2017 and
CRL.M.P.Nos.11908 & 11909
of 2017
16.11.2021
https://www.mhc.tn.gov.in/judis
