Madras High Court
J.P.Vijayaraj vs P.Mohan on 2 September, 2021
Crl.OP.No.18512/2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 02.09.2021
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
Crl.OP.No.18512/2015 & MP.No.1/2015
[Video Conferencing]
1.J.P.Vijayaraj
2.S.Murugavel ... Petitioners
Versus
P.Mohan ... Respondent
Prayer : - Criminal Original Petition filed under Section 482 of Cr.P.C to
call for the records and quash the respondent/complainant's complaint in
CC.No.83/2015 pending on the file of the learned Judicial Magistrate-I,
Kancheepuram.
For Petitioners : Mr.R.Thanjan
For Respondent : Mr.K.M.Balaji
ORDER
(1) Mr.K.Jothiraman, aged 60 years, working as a Document Writer, in
Chinna Kancheepuram, had given a complaint to the Superintendent
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of Police, Kancheepuram District and thereafter, on that basis, the
Superintendent of Police, Kancheepuram District, had, by
communication in K2/844/42254/2013 directed, G.Anjalatchi, Sub-
Inspector of Police, Crime Branch, in Kancheepuram District to
examine and register a FIR. A FIR in Crime No.74/2013 was
registered on 26.09.2013 under Sections 406, 420, 467, 468E and 471
of IPC by the District Crime Branch, Kancheepuram, against Mohan,
Sridhar and Raghu, on the basis of the said complaint given by
K.Jothiraman.
(2) I have no intention of examining the contents of the complaint. That
is not relevant to the discussion now required to dispose of this
Original Petition.
(3) After the FIR had been registered, the newspapers particularly in
Kancheepuram, thought that it contained information which could be
disseminated to the general public and accordingly, the fact that the
FIR had been so registered, had been published in various
newspapers, among others, by the Daily Thanthi newspaper. The
Daily Thanthi newspaper published the same on 10.10.2013. They
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reduced the facts mentioned in the FIR. Thereafter, they put a small
sub heading that the police are in search of three persons, obviously,
the aforementioned three individuals against whom the FIR had been
registered. It had been further stated in the vernacular version as
follows:-
3 ngUf;F tiytPr;R
''...khtl;l nghyP!; Ng;gpuz;L tp$aFkhh; cj;jutpd; nghpy; khtl;l
Fw;wg;gpupt[ nghyP!; Jiz Ng;gpuz;L khzpf;fntY nkw;ghh;itapy;
rg; ,dp!;bgf;lh; m";ryhl;rp tHf;Fg;gjpt[ bra;J gl;L bjhHpyjpgh;
nkhfd; cs;gl 3 ngiu tiytPrp njotUfpwhh;.''
(4) The free translation of the above is that Mr.Vijayakumar,
Superintendent of Police, Kancheepuram District, had given
directions and under the supervision of Mr.Manickavelu, District
Crime Branch Deputy Superintendent of Police, Ms.Anjalatchi, Sub
Inspector of Police, had registered the FIR and had spread a dragnet
to secure the first named individual, silk cloth businessman, Mohan
and others.
(5) This particular information given in the Daily Thanthi newspaper on
10.10.2013 had been considered to be a defamatory material by the
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said Mohan, who in turn, had given a private complaint in that regard
which was taken cognizance as CC.No.83/2015 by the learned
Judicial Magistrate No.1, Kancheepuram. Seeking to quash the said
Calendar Case, the petitioners herein, viz., Vijayaraj, Author and
Publisher of Daily Thanthi and Murugavel, Reporter of the said
News Daily, have filed the present Original Petition.
(6) It is contended by Mr.R.Thanjan, learned counsel for the petitioners
that the newspaper item was only a reflection of the FIR which was
already in the public domain. It was not a secret document. It was a
document which necessitated information to be given to the general
public about the occurrence of a particular incident and according to
the learned counsel for the petitioners, this information was adjudged
to be newsworthy and therefore, it was published in the newspapers.
It is also contended that there was no mala fide behind the publication
and the report was not handpicked with an intention to defame
anybody, much less the respondent herein and that, a fact alone was
stated and while stating as a fact that the FIR had been lodged and
registered, the contents of the FIR had been reduced and thereafter,
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since on that particular date, the named individuals against whom the
FIR had been lodged, were not taken into custody it had been stated
that the police had spread a net to secure them. The learned counsel
for the petitioner therefore stated that by no stretch of imagination can
the said publication be termed as defamatory.
(7) This contention of the learned counsel for the petitioners is very
seriously disputed and challenged by Mr.K.M.Balaji, learned counsel
for the respondent. The learned counsel stated that if the news item
was restricted to a reduction of the facts as stated in the FIR, the
respondent herein would have had no grievance since that was a
document which was in the public glare and can be brought out to the
knowledge of the general public. However, the last portion of the
vernacular version of the news item, which had been extracted above
and the free translation had also been stated above, is what has
aggrieved the respondent herein, necessitating him to give a private
complaint before the jurisdictional Magistrate Court. It is stated that
the reputation of the respondent had been damaged and he has been
portrayed as somebody who is on the run and who is avoiding police
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net and therefore, it is stated that as a respectable citizen, the
respondent has a right to question this particular publication by filing
a private complaint for making out the offences under Sections 499
read with 500, 501 and 502 of IPC.
(8) In this connection, the learned counsel for the respondent also relied
upon the decision reported in 2018 [1] SCC 615 [Mohd.Abdulla
Khan V. Prakash.K.], wherein the Hon'ble Apex Court had examined
Sections 499, 500, 501 and 502 of IPC and stated the difference
between making of an imputation and publishing the same. It had
also been stated that printing and engraving a defamatory material
and offering the same for sale, is an offence.
(9) The learned counsel also relied on the decision reported in 2000 [9]
SCC 87 [Vivek Goenka and Others V. Y.R.Patil] wherein, the
Hon'ble Supreme Court of India had actually directed prosecution to
be continued against A1 and A4 and had however, directed that A2
and A3 need not be retained in the array of accused. It had been
stated that it is for the accused to show that they are protected by any
one of the exceptions to Section 499 of IPC as the publication was
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not disputed. It is that particular portion which is relied on by the
learned counsel for the respondent, who stated that the during the
course of trial, the petitioners herein can establish that they come
under any one of the exceptions under Section 499 of IPC and that, at
this preliminary stage, the Calendar Case cannot be interfered with.
(10) Further reliance has been placed by the learned counsel for the
respondent on the decision reported in 2020 [4] SCC 162 [Google
India Private Limited V. Visaka Industries] and the learned counsel
drew the specific attention of this Court to paragraph No.139,
wherein it had been stated that if defamatory matter is published, as to
who published it, is a question of fact. It had been stated that
publication involves bringing defamatory matter to the knowledge of
a person or persons other than the one who is defamed. Pointing out
this particular portion, the learned counsel pointed out that the
reputation of the respondent herein had been seriously affected by the
said publication and therefore, urged that the Calendar Case should
continue in its normal course and does not warrant interference by
this Court.
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(11) I have carefully considered the arguments advanced on either side.
(12) The fact that the petitioners herein had published in the Daily Thanthi
newspaper on 10.10.2013 a report about the registration of a FIR
against respondent herein, cannot be denied or disputed. It is a fact.
A copy of the said publication had been produced for reading of this
Court. The article proceeds on the line of speaking about the
registration of the FIR and the contents of the FIR, which contents are
not now examined by this Court. It is further stated that Anjalatchi,
Sub Inspector of Police, under the direct supervision of Manickavelu,
Deputy Superintendent of Police, who acted under the direct
instructions of Vijayakumar, Superintendent of Police,
Kancheepuram District, was spreading a net to catch the three persons
named in the FIR.
(13) Whether this statement would constitute defamation, is the issue now
to be examined by this Court.
(14) If this is not a fact, then the primary persons who should object to the
same, are the officials named, viz., [1]Anjalatchi, Sub Inspector of
Police, [2]Manickavelu, Deputy Superintendent of Police and [3]
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Vijayakumar, Superintendent of Police. They have been named as
being the officers involved in searching for the accused herein.
(15) On registration of any FIR, naturally, if a cognizable offence had
been made out, the police would concentrate their efforts in securing
the accused.
(16) It is also pointed out across the Bar by both the learned counsels that
on that particular date, the respondent herein was not in custody, nor
had been taken into custody and had obtained bail. He had actually
filed an application seeking anticipatory bail which also implies that
he had avoided getting into the custody of the Investigating Agency
on that particular date. Therefore, there was a cat and mouse drama
being enacted. On the one hand, the respondent herein had
approached this Court and filed an application for anticipatory bail.
Simultaneously, whether they had the knowledge or not of the same,
the Investigating Agency was also searching for him to take him into
custody with respect to the allegations in the FIR. That any
Investigating Agency would take steps to secure any accused is a
logical step to be presumed by any individual pursuant to the
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registration of the FIR, particularly, which brings out a cognizable
offence in the Report. The specific names of the police officials have
been given. It had also been further stated that they were searching
out for a person by name Mohan, who is doing silk business and
others. It is to be mentioned that the said Mohan is the respondent
herein. He has filed a complaint stating that because his name has
been introduced as if he is absconding from the police, defamatory
material had been published.
(17) Now, let me examine what actually constitutes a publication and
when it is considered to be defamatory.
(18) Section 499 of IPC speaks about defamation. It includes publication
and it also says that any publication would amount to defamation if it
imputes and if such imputation harms the reputation of a particular
person who is living. The exception for that is the imputation of truth
which public good requires to be made published.
(19) For better appreciation, Section 499 of IPC is extracted thus:-
''Section 499 IPC:-Whoever, by words either spoken
or intended to be read, or by signs or by visible
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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
the cases hereinafter expected, of defame that person.
Explanation 1......
Explanation 2......
Explanation 3......
Explanation 4-No imputation is said to harm a person's
reputation, unless that imputation directly or
indirectly, in the estimation of others, lowers the moral
or intellectual character of that person, or lowers the
character of that person in respect of his caste or of his
calling, or lowers the credit of that person, or causes it
to be believed that the body of that person is in a
loathsome state, or in a state generally considered as
disgraceful.
Illustrations
(a)......
(b)......
(c) A draws a picture of Z running away with B's watch,
intending it to be believed that Z stole B's watch. This is
defamation, unless it fall within one of the exceptions.
First Exception-Imputation of truth which public good requires
to be made or published: --It is not defamation to impute
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anything which is true concerning any person, if it be for the
public good that the imputation should be made or published.
Whether or not it is for the public good is a question of fact.''
(20) It is to be examined now whether this particular publication can be
brought under the first exception to Explanation 4 of Section 499 of
IPC. What has been published is merely a report indicating that the
named police officials were searching for an individual named in a
FIR, which FIR, as repeatedly pointed out, disclosed a cognizable
offence. This, in my view, cannot be categorised as being
defamatory. It is a fact that the police were on the look out for the
respondent on that particular date.
(21) Let me now now re-examine that particular view on the basis of the
judgments now produced by the learned counsel for the respondent.
(22) In paragraph No.17 of the decision reported in Mohd.Abdullah
Khan's case reported in 2018 [1] SCC 615, the Hon'ble Supreme
Court of India had stated as follows:-
''17. Whether the content of the appellant's
complaint constitutes an offence punishable under any
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one or all or some of the abovementioned sections was
not examined by the High Court for quashing the
complaint against the respondent. So we need not
trouble ourselves to deal with that question. We
presume for the purpose of this appeal that the content
of the appellant's complaint does disclose the facts
necessary to establish the commission of one or all of
the offences mentioned above. Whether there is
sufficient evidence to establish the guilt of the
respondent for any one of the abovementioned three
offences is a matter that can be examined only after
recording evidence at the time of trial. That can never
be a subject-matter of a proceeding under Section 482
CrPC.''
(23) In that case, the High Court, while quashing the complaint, had not
examined whether the contents of the complaint constitutes offence
punishable under any one or all of Section 499 or 500 of IPC. Here,
when we examine the first exception, which is imputation of truth
which public good requires to be disclosed, the fact is that the police
were searching for the respondent. The fact is that the respondent
was not under the custody of the police. The fact is that he had filed
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an anticipatory bail application which in itself reflects that he was not
under the custody of the police. All that has been published is that
the police are looking out for him. He had also not voluntarily
surrendered before the police. He had sought refuge behind an
application seeking anticipatory bail which application, he has a right
to file and which he had filed before the Court of competent
jurisdiction. But that is a fact known only to the respondent and there
are no materials to show it was made known to the petitioners herein.
Had the petitioners known about the anticipatory bail petition and had
still not published about that fact, but had published the fact that the
police are searching for the respondent, then defamation cam be
imputed. Here, that is not the case. The publication or report is only
a reduction of the action of the police had taken to search for a named
individual in the FIR. The facts in the instant case are therefore
distinguishable.
(24) The next judgment relied on by the learned counsel for the
respondent, is the decision reported in 2000 [9] SCC 87 [referred
supra], wherein the Hon'ble Supreme Court of India had directed that
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two of the accused need not be retained in the array of accused, but
had however, directed that trial can proceed against the other two
accused. It had been stated by the Apex Court that it is for the
accused to show that they are protected by any one of the exceptions
in Section 499 of IPC. In the instant case, it is very obvious that
protection is available since search of the respondent is a fact and a
true fact alone had been stated in the publication. If that fact, namely
that a search operation was on, was not true, then the persons to
object to the same in the first instance, should have been the named
police officers. They have not come to Court complaining that they
have been defamed or that their names have been unnecessarily
included in the publication, or that a wrong information had been
published. The focus of the publication was the act of the police
officials and not the fact that the respondent herein had absconded. It
was a fact that the police were searching for him. I would therefore
hold that even a cursory glance would indicate that the petitioners are
protected under the exception to the charge of defamation.
(25) In the decision reported in 2020 [4] SCC 162 [Google India Private
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Limited V. Visaka Industries], which again was relied on by the
learned counsel for the respondent, it had been pointed out by the
Hon'ble Supreme Court of India that publication involves bringing
defamatory matter to the knowledge of a person other than the one
who is defamed. The issue, is whether publishing the fact that the
police is searching for a named individual in the FIR, can be termed
as defamatory. It can be termed as defamatory if such search is not
established as a fact. It can be denied as a fact only by the police
officials who are actually conducting the search. They have not so
denied that fact.
(26) In view of the above reasons, I hold that further continuation of the
Calendar Case would be a futile exercise and I would therefore,
interfere with the same.
(27) I am conscious of the fact that the Hon'ble Supreme Court in the
decision reported in 2021 SCC Online SC 315 [Neeharika
Infrastructure Pvt Ltd Vs State of Maharashtra and Others], had
given comprehensive guidelines with respect to interference of
further progress of FIRs/complaints. But, as is seen, in the instant
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case, by no stretch of imagination, can it be said that a false
information had been published or rather, that information had been
published with intention to defame the respondent herein.
(28) A fact has been published. That fact cannot be denied by the
respondent. So long as it remains a fact, the petitioners herein have
the right to disseminate that particular fact to the general public in the
only manner in which they can do so, through their newspaper and
that is what they have precisely done.
(29) I would therefore interfere with the further progress of
CC.No.83/2015 now pending on the file of the Court of Judicial
Magistrate No.1, Kancheepuram and quash the same.
(30) In the result, the Criminal Original Petition stands allowed and the
complaint in CC.No.83/2015 on the file of the learned Judicial
Magistrate No.1, Kancheepuram, is quashed. Consequently,
connected miscellaneous petition stands closed.
02.09.2021
AP
Internet : Yes
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To
1.The Judicial Magistrate No.1
Kancheepuram.
2.The Public Prosecutor
High Court, Chennai.
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C.V.KARTHIKEYAN, J.,
AP
Crl.OP.No.18512/2015
02.09.2021
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