CRL OP/37509/2004 of 1.REV.SAMUEL D.STEPHENS Vs PASTOR A. SAMUEL RAMASAMY on 29 December 2004

1. Rev.Samuel D.Stephens2. Pastor Paulraj...Petitioners/Accused-vs-Pastor A. Samuel Ramasamy...Respondent/Complainant Petition filed under section 482 Cr.P.C. to call for therecords relating to proceedings in C.C.No.655/2003 on the file ofthe Judicial Magistrate, No.II, Poonamallee and quash the same. For Petitioners : Mr.K.S.DinakaranFor respondent : Mr.Thomas Acquinas----ORDERThis petition is filed praying to quash the proceedingsin C.C.No.655/2003 on the file of the Judicial Magistrate, No.II,Poonamallee.

2. The petitioners allege that the respondent has givena private complaint against the petitioners for the commission ofan offence punishable under section 500 IPC in CC.No.655/2003. Therespondent's case is that he is a Co-ordinate Pastor of World WideVision run by the Indian Gospel League of which, the firstpetitioner is the President and the second petitioner is theGeneral Co-ordinator; that both the petitioners/accused on falseallegations levelled charges against the respondent and directedhim not to proceed with the activities and despite several lettersno reply was given; that the petitioners held the All IndiaConference between 22.1.2003 and 24.1.2003 at Salem; that in spiteof all efforts including the lawyer's notice dated 6.1.2003 issuedto stop the conference, had no effect but only four goondas weresent from whom the respondent was saved by the Police; that therespondent also gave a report at Vepery Police Station.

3. According to the respondent, the first petitionersent a circular dated 16.1.2003 through the second petitioner toall Pastors stating that the activities of the respondent was notsatisfactory and so monthly meeting of the Vision is stoppedcompletely; that the contents of the circular are defamatory andlowering the petitioner's reputation; that therefore, therespondent filed a complaint on 17.2.2003 and it was taken on fileunder section 500 IPC; that the petitioners raised preliminaryobjection, but based on the Rule of the Supreme Court in AdalatPrasad's case that in a case of summons procedure, the lower courthas no right to discharge and as such, the petitioners have tofile this petition under section 482 Cr.P.C.

4. According to the petitioners, the respondent havingfiled the present complaint on 22.7.2003, anti dating, andsuppressing material facts about the earlier complaint and theenquiry under section 202 Cr.P.C. and also in view of the factthat the records were misplaced and therefore cognizance of theoffence by the court below is an abuse of process. Hence, thispetition.

5. During arguments, the learned counsel appearing onbehalf of the petitioners, reading out from the complaint and thedocuments regarding the proceeding initiated on the basis of thecomplaint of the respondent by the lower court, would point outthat by Judicial Magistrate, No.II, Poonamallee, the cognizance ofthe complaint had been arrived at after recording of the swornstatement of the respondent/complainant on 22.7.2003 and wouldclarify that only before recording of the sworn statement suchcognizance could be arrived at regarding the taking on file of thecomplaint and it is a big flaw committed on the part of the Courtin taking cognizance of the complaint after recording the swornstatement of the complainant which could be seen from the returnmemo of the learned Magistrate dated 26.2.2004 thereby revealingthat inspite of recording of the sworn statement of thecomplainant as early as on 22.7.2003 till 26.2.2004 the complainthad not been taken on file and the filing procedures have not beencompleted which comes to be known from the said return memo,requiring the documents to be filed along with the complaint,further specifying the documents to be furnished.

`6. The learned counsel would further point out that thecomplaint does not say whether witnesses were present so as toexamine them prior to summoning the petitioners, for prima faciecase to be made out. The learned counsel would also cite thefollowing decision rendered in NITIN V. BHIMANI vs. A.R.BASU (1995Crl.LJ 1974) wherein it is held that:- "Having heard the learned Advocates forthe parties and considering the materials onrecord, I find that while taking cognizance onthe complaint of the opposite party herein,the learned Magistrate committed wrong andillegality in not taking cognizance first buthe took cognisance of the offence afterexamination of the complainant. That is notthe imperative of the law. On the contrary, itis the mandatory provision under Section 200of the Code of Criminal Procedure thatcognisance is to be taken first and thereafterthe complainant and his witnesses so presentto be examined. Thereafter, the question ofissuance of summons will be coming in. Theorder impugned also suffers from anotherillegality i.e. the court has failed to recordwhether other witnesses for the complainantwere present in court or not on that day. Thetrial court has failed to record that no otherwitnesses of the complainant were present. Insuch circumstances, the initial order oftaking cognisance by the learned Magistratedated 4.10.91 cannot be sustained in law andalso the subsequent orders thereto, namelydated 4.10.91 are also not sustainable inlaw."

7. The next judgment cited on the part of thepetitioners is one rendered in BRAHMANAND GOYAL vs.N.C.CHAKRABORTY (1974 Crl.LJ.1079) wherein it is held that if theprosecution witnesses are absent at the time of taking cognisance,the Magistrate must record in the order sheet the fact that theywere not present. Otherwise, the cognisance is bad and improperand the whole proceedings are vitiated.

8. The third judgment cited by the learned counsel forthe petitioners is one reported in REVANAPPA vs. S.N.RAGUNATH(1983 Crl.LJ 321), wherein it is held:- "As the entire proceedings are beforethe trial court and as the initiation ofproceedings viz., after examination of thewitnesses taking of the cognizance itself isillegal, the entire proceedings starting fromthe stage of examination of the complainantand his witnesses also cannot be sustained.It is needless to say that when a complaint ispresent under section 200 Cr.P.C it isincumbent upon the Magistrate to have considered whether it is a fit case to takecognisance of the offences as contemplatedunder Section 190 Cr.P.C and if he thinks totake cognizance then he ought to takecognisance and thereafter to examine thecomplainant and witnesses, present, if any,and thereafter to issue process ascontemplated under law......."

9. Yet another judgement would also be cited on thepart of the petitioners rendered in M.MURUGAN vs. RANJINI MURUGAN(1990 LW Crl. 409), wherein the learned single Judge of this Courthas decided to dismiss the complaint on the ground that it was asecond complaint on the same set of facts, as a previousproceeding was quashed by the High Court, further ruling that notplacing of facts before the Court in the prior prosecution woulddisentitle the complainant from preferring a second complaint andthe facts cannot be placed before Court in instalments dependingupon the success or otherwise of a prior litigation on a wait andwatch basis.

10. On such arguments the learned counsel would end upsaying that for all the above irregularities and inconsistencieswhich would form basis for the complaint to be taken on file,vitiates the proceedings which has to be declared void since thevery complaint has been lodged and entertained not in the mannerknown to law.

11. In reply, the learned counsel appearing on behalf ofthe respondent would submit that there was no two complaints, oneearlier and the other later, but there was only one complaintfiled. The learned counsel would also point out from the compliantthe relevant facts that the commission of an offence under section500 IPC is a serious affair wherein the reputation of a man in theeyes of society is involved. The learned counsel would say thatimputations made in the circular by the petitioners aredisparaging, degrading and lowering the status of the respondentin the society. The learned counsel would further deny theallegations that the Magistrate failed to take cognisance of thecomplaint immediately on its file but did the same only afterrecording the sworn statement which is irregular. Anyhow,according to the learned counsel the trial that is to be held willbe the answer and the petitioners could very well establishedtheir contentions before the trial court at the time of trial andwould pray to dismiss the above petition.

12. In consideration of the facts pleaded, havingrecord to the materials placed on record and upon hearing thelearned counsel for both, what comes to be assessed by this Courtis that a private complaint filed under section 200 Cr.P.C. in the

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Court of Judicial Magistrate, NO.II, Poonamallee contemplating theoffence punishable under section 500 IPC against the petitionersherein is under challenge in the above petition by them praying toinvoke the inherent powers of this Court to quash the complaint asillegal and void on certain legal grounds.

13. For the commission of the offence alleged to havebeen perpetrated by the petitioners as per the complaint of therespondent the ingredients are given under Section 499 IPC, whichif come to be proved, becomes punishable under section 500 IPC andin fact the respondent is the Regional Co-ordinator of anorganisation called World Wide Vision run by the Indian GospelLeague of which the first petitioner is the President and thesecond petitioner is the General Co-ordinator. It seems that thepetitioners in exercise of their powers as the President andGeneral Coordinator, on certain allegations levelled against therespondent had directed him not to proceed with the activities anddespite several letters, no reply was given and ultimately, thefirst petitioner seems to have sent a circular through the secondpetitioner to the members of the region stating that "theactivities of Pastor Samuel Ramsamy who has been elected by thePastors of the region who acts voluntarily are not satisfactoryand so the monthly meeting of vision is stopped temporarily".

14. The above statement according to the respondent/complainant is a deplorable and pernicious and would harm thereputation, lowering the social status and moral character of therespondent/complainant in the eye of the society and hence, wouldcome forward to file the above complaint before the jurisdictionMagistrate seeking to punish the petitioners for the commission ofoffence under section 500 IPC.

15. For the commission of offence punishable undersection 500 IPC, the ingredients as contemplated under section 499IPC should be fulfilled, that is, there must be an imputationagainst the complainant and the imputation must be likely to lowerthe reputation and dignity of the complainant in the eye of thesociety and that the imputation shall be false.

16. From the statement alleged to have been made in acircular dated 16.1.2003 by the first petitioner to the members ofthe Regional Committee of the League does not seem to be eitherdefamatory so as to deteriorate or affect the reputation of therespondent in the society in order to lower his status orcharacter of the respondent in the eye of others which impressioncould only be formed on a plain reading of the statementcirculated by the first petitioner herein.

17. The first petitioner in his capacity as thePresident of the League commenting that the respondent in actingvoluntarily his services are not satisfactory thereby stopping themonthly meeting of the vision temporarily is plain remark made onthe part of the first petitioner in the usual course of hisbusiness in total realization of his duties and responsibilitiesas the President and even if this statement is proved to be falseit cannot in any manner be termed as either disparaging ordefamatory and therefore, factually it should be ruled that to therequirements of law no offence of defamation could be contemplatedand it is worth mentioning that the lower court without going intothis factual aspect has taken cognizance of the offence since noprima facie case could be made out on the face of the complaint atall.

18. Further coming to the other legal factor that theMagistrate prior to taking cognizance of the complaint, hasrecorded the sworn statement of the complainant which is false hasbeen borne out by the first two judgments cited supra and in thatscore also, the proceedings initiated by the Court of JudicialMagistrate, No. II, Poonamallee becomes liable to be quashed.

19. Thirdly, the non production of witnesses on thedate of filing of the very complaint and the non production of thedocuments which are basis of the complaint would only lead towilful suppression of material evidence and would lead to vitiatethe proceedings initiated by the lower court.

20. On a overall consideration of the facts andcircumstances of the case registered by the Court of JudicialMagistrate, No.II, Poonamallee on the complaint of the respondentagainst the petitioners herein, the same cannot be sustained inlaw for the above reasons assigned and the said proceedings onlybecomes liable to be quashed and is quashed accordingly.

In result,

(i) The above Criminal Original Petition succeeds and thesame is allowed.

(ii) The proceedings initiated in C.C.No.655/2003 on the fileof the Court of Judicial Magistrate, NO.II, Poonamallee is quashedas illegal and void.

(iii) Consequently, connected Crl.MP.NO.11796 of 2004 isclosed. 29...12....2004bgSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Judicial Magistrate, No.II,Poonamallee2. -do- Thro' The Chief Judicial Magistrate Chingleput2 ccs to Mr.K.S.Dinakaran, Advocate, SR.58068jsk (co)dvOrder in Crl.OP.No.37509 of 2004