CRL RC/1529/2002 of J.S.CHITHARANJAN Vs DR.S.USHA KALYANI on 19 December 2003

:O R D E R

This revision has been filed against the order passed by the VIIMetropolitan Magistrate, George Town, Madras in Crl.M.P.No.1800 of 2002 inC.C.No.7919 of 1998, declining to discharge the accused/ petitioner from theprivate complaint preferred by the complainant/respondent of an offence underSection 500 IPC.

2. The circumstances under which the said order came to be passed isas follows:

a) The respondent/complaint is a Lecturer in English in Bharathiar College for Women, Madras and hails from a respectable family. Shewas married to the accused/petitioner herein and out their wedlock a femalechild was born, but unfortunately the marriage tie broke up and due to certainthings happened in the course of their wedlock, she was forced to give acomplaint against her husband for offences under Section 420 and 406 IPC. Thedetails of which are totally not necessary for the purpose of disposing ofthis revision, suffice to state that the said complaint was filed before theAdditional Chief Metropolitan Magistrate, Egmore, Chennai, who referred thematter to the Crime Branch, Egmore, Chennai. The Crime Branch on receipt ofthe same, registered a case and investigated the matter. Theaccused/petitioner being afraid that he may be arrested sought forAnticipatory Bail before this Court by filing an application in Crl.O.P.No.8639 of 1998. Notice was given only to the Public Prosecutor andwhen the matter came up for hearing, the complainant/respondent sought toimplead herself by engaging a counsel to appose the said application. Thecounsel for the accused/petitioner sought time and filed an affidavit of thepetitioner on the next hearing in support of the application for AnticipatoryBail. In the said affidavit, the following averments have been made"10. I state that in the month of July 1986 Usha Kalyani brought the said Abdul Razack to the house and when I suddenly went home for lunch andfound the motor bike I was under the impression that my friend would havecome. The door was closed and I range the bell. Since there was no powersupply at that time, I went to the back yard to see if I could call UshaKalyani. When I peeped in through the window, I saw that the said AbdulRazack having sexual intercourse with Usha Kalyani. After seeing me the saidAbdul Razack fled and I had a mental shock. From that day onwards, I refusedto have marital relationship with Usha Kalyani and I had to tolerate this forthe sake of my daughter Ramya.

11. I further state that in furtherance to this I gathered information and found that Usha Kalyani has continued sexual relationship withmany persons including Aslam and Assistant Flight person, Indian Airlines,residing at Anna Nagar and Kalyanaraman working at Bombay. I also got severalinformation that many persons were visiting my house in my absence. When mydaughter was 9 years old in the year 1992 she herself witnessed her mother inbed with a stranger and informed me about the same. When I questioned UshaKalyani she physically assaulted my daughter and starved my daughter for twofull days and I had to admit her in the hospital. Several alcohol were foundin my wife's cup board and later I was informed by my daughter that UshaKalyani has the habit of consuming alcohol regularly"

b) According to the complainant/respondent the above

imputations were made in the affidavit by the accused/petitioner with theintention to harm the reputation, knowing fully well that the same is falseand had been made made with the intention to malign her reputation andcharacter. Hence, the complainant/respondent filed the present complaintbefore the VII Metropolitan Magistrate for the offence punishable underSection 500 IPC against the accused/petitioner.c) On appearance the accused/petitioner filed a petition for discharge taking up a plea that the averments made in the affidavit would beprotected under Exception 8 and 9 of Section 499 IPC. However, the learnedMagistrate dismissed the said petition on the ground that the exceptions hasto be necessarily pleaded during the course of the trial and cannot bepre-judged. It is against this order, the present revision has been filed.

3. The imputations made in the affidavit by the accused/petitionerprima facie is defamatory and there is no quarrel and rightly so no argumentswere advanced in relation to that. But the learned counsel appearing for theaccused/petitioner would only say that this will certainly come underException 8 and 9 of Section 499 IPC and hence the complaint deserves to bedismissed.

4. In support of his contention, the learned counsel first took me to Exception 8 of Section 499 IPC IPC, which reads as follows:

"It is not imputation to prefer in good faith an accusation againstany person to any of those who have lawful authority over that person withrespect to the subject of accusation."

5. Furtherance to it, Exception 9 of Section 499 IPC was also takenthrough by the learned counsel, which reads as follows:"It is not defamation to make an imputation on the character ofanother, provided that the imputation be made in good faith for the protectionof the interest of the person making it, or for any other person, or for thepublic good."

6. While referring to the above stated two exceptions, the learnedcounsel would stress more on Exception 9 of Section 499 IPC, wherein the lawsays that imputation made on the character of another, if made in good faithfor the protection of the interest of person making it, is not defamation.According to the learned counsel the imputation in this case was made by theaccused/petitioner in the affidavit filed before the High Court to only bringit to the notice of the Court that "can the words of such a woman of badvirtues be believed and Anticipatory Bail should be rejected and that thisstatement would not have been made had not the defacto complainant (thepresent complainant) sought intervention in the bail application.

7. Just because the complainant/respondent came as an intervenor inthe application preferred by the accused/petitioner seeking bail, it does notmean to say that he had a right to accuse about her moral virtues, whichaccording to her is totally false. The accused/ petitioner cannot escape orgo without being challenged claiming that it has been done in good faith andin the protection of the interest of the person making it.

8. A reading of Exception 9 of Section 499 IPC would only reveal thatsuch an accusation is not an imputation, provided, it has been made in goodfaith. Here, the word provided has to be necessarily given a meaning. So, myreading of the exception clause would be to say that the imputation on thecharacter of another is definitely a defamation, unless that imputation beproved or established that it has been made in good faith for the protectionof the interest of the person making it, which means that it has to benecessarily shown in the course of trial that the imputation has been made ingood faith. Therefore, I am not inclined to accept the argument of thelearned counsel as far as the claiming of protection under Exception 9 ofSection 499 IPC.

9. The next ground of attack is that it has been done in good faithbefore a lawful authority. Thus the question as to who is the lawfulauthority has to be decided. In the Anticipatory application, the lawfulauthority was the High court, but there the subject matter was only inrelation to an offence under Section 406 and 420 IPC. In effect, the positionis that the application before the lawful authority has been made only togrant Anticipatory Bail for the grounds raised by him and the subject matterof the present complaint, which shows the attack made on chastity and morality is not the subject matter in the Anticipatory Bail application. Even thoughthe defacto complainant had intervened in the said application and opposed thesame, it is only with reference to the offence in that application theobjection has been made. On the otherhand, if her chastity had been thesubject matter before the lawful authority and if an accusation has been madein respect of that then it could very well be said that an accusation has beenmade before the lawful authority, who is called upon to decide that issue.But in that application there was no reason at all for him to have accused herin so many words. Therefore, here again my reading in respect of Exception 8is that if an accusation has been made against any person, who has lawfulauthority means the lawful authority who is to decide that particular issue ofthe matter, which relates to defamatory in character and not mattersincidental thereto. Therefore, what comes to be known from the above is thatif something has been stated about the facts of offence under Section 406 and420 IPC, it may well be said to be protected. But to accuse her of hermorality and say that she should not be believed, is a matter which has to benecessarily tried and decided only after a full-fledged trial.

10. The learned counsel appearing for the accused/petitioner relied

10. The learned counsel appearing for the accused/petitioner relied on a decision of the Delhi High Court reported in Pabitra Pradhan Vs. Stateof Orissa (2002(1) Crimes 593) wherein His Lordship Justice Agarwal has heldto the effect that where it is apparent that the imputation was made in goodfaith by the petitioner to get the order of summoning quashing, the samecannot be said to have been made with intention or knowledge to cause harm tothe reputation of petitioner. I am afraid that the said decision will not beof help to the accused/ petitioner herein, since that is a case where theallegations of the offence punishable under Section 499 IPC was made and thesubject matter of the imputation was in relation to that particular offenceand the Apex court was the lawful authority to decide that issue andtherefore, the Delhi High Court has held that it was apparent and henceprotected him under Exception 8. But in the case on hand, this Court in theAnticipatory Bail application was not called upon to decide whether she wasimmoral or not. The subject matter of the issue before this Court was onlyfor an offence under Section 406 and 420 IPC, in which case theaccused/petitioner has no reason to file such an affidavit.

11. The learned counsel appearing for the complainant/respondent onhis side relied on a decision of the Apex Court reported in M.N. Damani Vs.S.K.Sinha and others (2001 Crl.L.N. 2571), wherein Their Lordships have heldthat it is not the province of this Court to appreciate at this stage theevidence or scope of and meaning of the statement. Further they went to holdthat the High Court cannot at this stage say that there was no reasonableprospect of conviction resulting in case after trial and that questionswhether imputations were made on good faith, in what circumstances, with whatintention etc., are to be examined on the basis of the evidence in trial. Imost respectfully agree with the said proposition and therefore, I have nohesitation to dismiss this revision. However, it is open for the respondentto claim the benefit of Exception 8 and 9 of Section 499 IPC as the case maybe during the course of trial.

12. Apart from the above, yet another broad factor which remains to be answered is that when the accusation has been made against the complainantin a proceedings and if it is said that it has been made in good faith withouta trial after and the proceedings has been quashed, the said accusation goesunchallenged. Further, the question, will not the aggrieved person beentitled to erase the shabby comments on her. It is more in the light of thisthat I am not inclined to go into the factual question without a trial beingproceeded to decide that it has been done in good faith. Therefore, on theabove premise, I feel that there are no merits in this revision and therevision is hereby dismissed.

csh

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To

1. The VII Metropolitan Magistrate,George Town, Chennai.

2. -Do- Thro' The Chief MetropolitanMagistrate, Egmore, Chennai.