THE HONOURABLE SRI JUSTICE N.V. RAMANA
Criminal Petition No. 1950 of 2008
05-10-2012
Boddu Yohan
The Sub Inspector of Police,Chinthalapudi Police Station, West Godavari
District,And another.
Counsel for the Petitioner: Sri P. Govind Reddy
Counsel for the Respondent: Public Prosecutor
<GIST:
>HEAD NOTE:
? Cases referred
1 1997 Laws (Raj) 83
2 AIR 1972 SC 2609 = 1972 (2) SCC 680
Criminal Petition No. 1950 of 2008
Order:
The petitioner, who is accused No. 1, in C.C. No. 107 of 2006 on the file
of Judicial First Class Magistrate, Chintalapudi, West Godavari District, has
filed this petition under Section 482 Cr.P.C. praying to quash the said
proceedings against him.
Briefly stated the facts of the case are, on 22.11.2005, respondent No.2
filed a private complaint before the Judicial First Class Magistrate,
Chintalapudi, West Godavari District, stating that the petitioner, namely Boddu
Yohan and another, namely T.D. Kargilin, are working as Secretary and Treasurer
respectively of Church of South India, Krishna-Godavari Diocese, Vijayawada.
That herself and one Pandu Lakshmi Prasanna, are wives of Pandu Jagadish Chandra
Pratap Babu and Pandu Jamesh Israel Raju respectively, who are the sons of Pandu
Joseph, who is working as a Deanary Chairman, Chinthalapudi.
That there are differences between the family members of her father-in-law and
the petitioner and T.D. Kargilin. On 04.10.2005, the Bishop of Church of South
India, came to Chintalapudi for distribution of KASA kits to flood affected
victims in Shivapuram village of Chintalapudi Mandal. At that time, the
petitioner and T.D. Karglin, also came to Chinthalapudi, in their official
capacity as Secretary and Treasurer of Church of South India, and visited the
house of her father-in-law, namely Pandu Joseph at 10.30 a.m. At that time, the
petitioner and T.D. Karglin misbehaved with her and her co-sister. That they
reported the incident to their husbands, but they did not report the matter to
the police. Respondent No.2 in her complaint further stated that on 29.10.2005,
the petitioner and T.D. Karglin, in their official capacity, made a complaint to
the Bishop of Kirshna-Godavari Diocese, making certain allegations against her
father-in-law. They got printed phamphlets making derogatory remarks against
the family members of her father-in-law and distributed them to the public at
various places with an evil intention of defaming their reputation. Hence, she
prayed for taking necessary action against the petitioner and T.D. Karglin, for
the offences punishable under Sections 384, 509, 501 and 354 I.P.C.
The Judicial First Class Magistrate, Chintalapudi, West Godavari District,
referred the complaint under Section 156(3) to respondent No.1, namely the Sub
Inspector of Police, Chintalapudi for investigation. Thereupon, respondent No.2
registered a case in Crime No. 187 of 2005 of Chinthalapudi Police Station and
took up investigation. After completion of investigation, he laid charge sheet
alleging offences under Sections 509, 501 r/w. 34 I.P.C. Thereafter, the
learned Magistrate, took cognizance of the same under Sections 499, 501 and 509
I.P.C. against the petitioner and K.G. Karglin, numbered the same as C.C. No.
107 of 2006 and issued summons to the petitioner for facing trial. Questioning
the said action of the learned Magistrate, the petitioner, who is arrayed as
accused No.1 in the said case, has filed this criminal petition, to quash the
proceedings insofar as taking of cognizance against him.
The learned counsel for the petitioner submitted that the Magistrate has no
power or authority to take cognizance of the offence punishable under Chapter
XXI of IPC based on the charge sheet filed by the police. He submitted under
Section 199 Cr.P.C., which deals with prosecution for defamation, no court shall
take cognizance of an offence punishable under Chapter XXI of IPC, except upon a
complaint made by some person aggrieved of the offence. Since in the instant
case, the Magistrate has taken cognizance of the offence punishable under
Chapter XXI of IPC against the petitioner, based on the charge sheet, the
proceedings initiated by the Magistrate, are not maintainable. He further
submitted that once the police after investigating the case files the charge
sheet, the same has to be treated as a police case, and the charge sheet filed
by the police, cannot be treated as a complaint. To show that taking cognizance
of offence against the petitioner, based on the charge sheet filed by the police
is bad, he drew my attention to the definition of "complaint" as defined in
Section 199(2)(d) Cr.P.C. wherein, complaint is defined to mean any allegation
made orally or in writing to a Magistrate with a view to his taking action under
the Code that some person, whether known or unknown, has committed an offence,
but does not include a police report. Hence, he prayed that the criminal
petition be allowed and the proceedings before the trial Court insofar as the
petitioner be quashed.
Heard the learned counsel for the petitioner and the learned Public Prosecutor
for respondent No.1. None appeared for respondent No.2.
The offences under the Indian Penal Code are divided into several categories.
Some offences relate to or against individuals; some relate to offences against
public or persons or disturbing peace in the society; some are in respect of
charges of defamation against individuals and some relate to marriages etc.
Chapter XXI of the Indian Penal Code deals with defamation. Defamation is
defined under Section 499 and is made punishable under Section 500 I.P.C.
Section 499 I.P.C., which defines defamation, reads:
Section 499 - Whoever, by words either spoken or intended to be read, or
by signs or by visible 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, to defame that person.
Explanation 1 - It may amount to defamation to impute anything to a
deceased person, if the imputation would harm the reputation of that person if
living, and is intended to be hurtful to the feelings of his family or other
near relatives.
Explanation 2 - It may amount to defamation to make an imputation
concerning a company or an association or collection of persons as such.
Explanation 3 - An imputation in the form of an alternative or expressed
ironically, may amount to defamation.
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.
Section 199 Cr.P.C., which deals with prosecution for defamation, reads as
follows:
199: Prosecution for defamation
(1) No Court shall take cognizance of an offence punishable under Chapter XXXI
of the Indian Penal Code (45 of 1860) except upon a complaint made by some
person aggrieved by the offence:
Provided that where such person is under the age of eighteen years, or is an
idiot or a lunatic, or is from sickness or infirmity unable to make a complaint,
or is a woman who, according to the local customs and manners, ought not to be
compelled to appear in public, some other person may, with the leave of the
Court, make a complaint on his or her behalf.
(2) Notwithstanding anything contained- in this Code, when any offence falling
under Chapter XXI of the Indian Penal Code, is alleged to have been committed
against a person who, at the time of such commission, is the President of India,
the Vice-President of India, the Governor of a State, the Administrator of a
Union territory or a Minister of the Union or of a State or of a Union
territory, or any other public servant employed in connection with the affairs
of the Union or of a State, in respect of his conduct in the discharge of his
public functions, a Court of Session may take cognizance of such offence,
without the case being committed to it, upon a complaint in writing made by the
Public Prosecutor.
(3) Every complaint referred to in sub-section (2) shall set forth the facts
which constitute the offence alleged, the nature of such offence and such other
particulars as are reasonably sufficient to give notice to the accused of the
offence alleged to have been committed by him.
(4) No complaint under sub-section (2) shall be made by the Public Prosecutor
except with the previous sanction, -
(a) of the State Government, in the case of person who is or has been the
Governor of that State or a Minister of that Government;
(b) of that State Government, in the case of any other public servant employed
in connection with the affairs of the State;
(c) of the Central Government, in any other case.
(5) No Court of Session shall take cognizance of an offence under sub-section
(2), unless the complaint is made within six months from the date on which the
offence is alleged to have been committed.
(6) Nothing in this section shall affect the right, of the person against whom
the offence is alleged to have been committed, to make a complaint in respect of
that offence before a Magistrate having jurisdiction or the power of such
Magistrate to take cognizance of the offence upon such complaint.
Thus reading Section 199 Cr.P.C., the intention of the Legislature is to
bar the FIR or any consequent investigation and submission of charge sheet in
any court by the police. Such grievance can be raised by aggrieved party
through a private complaint to the Magistrate alone. Any defamatory act against
a person injures the reputation of the person defamed. It is not an offence
against the society in general. Therefore, the framers of law have decided to
keep it out of the purview of investigation by police. The above said intention
of the Legislature cannot be frustrated by taking recourse to the provision of
Section 156(3) Cr.P.C. No Magistrate is authorized to direct investigation in
view of the categorical bar imposed by the provision of Section 199 Cr.P.C.
These offences are treated on a different level because otherwise they will
impede the administration of justice and fair play.
In the present case on hand, the learned Magistrate after receiving the
complaint from the complainant, has forwarded the same to police for conducting
investigation. The police after investigating the same, filed charge sheet.
The learned Magistrate has taken cognizance basing on the report.
As a general rule, complaint can be filed by anybody, whether he is a
aggrieved person or not. Section 199 Cr.P.C. engrafts an exception to that
general rule. In relation to offences covered under Sections 499 to 502
occurring in Chapter XXI of I.P.C., an aggrieved person alone can move the
Court. This section is mandatory.
A reading of Section 199 Cr.P.C., it makes it clear that when a complaint is
filed before the Magistrate, he has to read the complaint as a whole and has to
find out whether the allegations disclose or constitute an offence under Section
499 I.P.C. which is triable by a Magistrate. If the Magistrate prima facie
comes to the conclusion that the allegation might come within the definition of
"defamation", he has to take cognizance of the same. The Magistrate cannot take
cognizance basing on the report of the police because Section 199(2)(d) Cr.P.C.
specifically says that complaint does not include police report.
Similar issue fell for consideration before the High Court of Rajasthan in Asu
Lal v. State of Rajasthan1, wherein the Munisf Magistrate has forwarded the
complaint given under Section 500 and 505 I.P.C. to the Station House Officer
for investigation. Later, he took cognizance basing on the police report. This
action of Magistrate was questioned by filing a quash petition before the High
Court. The Court has allowed the quash petition, relying on the judgment of the
Hon'ble Apex Court in G. Narasimhan v. T.V. Chokkappa2, wherein the Hon'ble Apex
Court has held that (a) if a person who is not aggrieved by an offence
punishable under Chapter XXI of the I.P.C. files a complaint, no cognizance of
the offence can legally be taken on it. Non-compliance with the mandatory
provisions contained in sub-section (1) of Section 199 I.P.C. renders the trial
of an accused person illegal. Their Lordships further pointed out that "Section
198 lays down an exception to the general rule that a complaint can be filed by
anybody whether he is an aggrieved person or not and modifies that rule by
permitting only an aggrieved person to move the Magistrate in cases of
defamation. The section is mandatory so that if a Magistrate were to take
cognizance of the offence of defamation on a complaint filed by one who is note
an aggrieved person, the trial and conviction would be void and illegal" and
accordingly allowed the quash petition.
The statute has prescribed distinct procedure for the making of the complaint
under the provisions of the Criminal Procedure Code and when the prescribed
procedure has been followed, the Court is bound to take cognizance of the
offence complained of.
I am of the opinion that the procedure adopted by the Magistrate, is in gross
violation of the mandatory provisions contained in the Criminal Procedure Code,
and therefore, taking cognizance of the complaint against the petitioner, is
illegal. The Magistrate has no jurisdiction to either refer the case under
Section 156(3) Cr.P.C. to the police for investigation or can take cognizance on
the police report under Section 501 I.P.C.
Along with Section 501 I.P.C., the Magistrate has taken cognizance of offence
under Section 509 I.P.C., which reads as follows:
509. Word, gesture or act intended to insult the modest of a woman, - Whoever,
intending to insult the modest of any woman, utters any word, makes any sound or
gesture, or exhibits any object, intending that such word or sound shall be
heard, or that such gesture or object shall be seen, by such woman, or intrudes
upon the privacy of such woman, shall be punished with simple imprisonment for a
term which may extend to one year, or with fine, or with both.
When a person is guilty of two distinct offences one is against public justice
and the other offence under Section 494, the offence under the latter section
can be taken cognizance. When a complaint discloses commission of several
offences being fundamentally distinct in nature, the Magistrate has to take
cognizance separately as per the procedure contemplated under the Criminal
Procedure Code.
As far as taking cognizance of the offence under Section 509 I.P.C. by the
Magistrate against the petitioner is concerned, I do not find any illegality,
and as such, I am not inclined to interfere with the taking of cognizance by the
Magistrate for the offence under Section 509 I.P.C. against the petitioner.
In the result, the criminal petition is partly allowed. Consequently, the
proceedings in C.C. No.107 of 2006 on the file of Judicial First Class
Magistrate, Chintalapudi, West Godavari District, insofar as taking of
cognizance for the offence under Sections 499 and 501 I.P.C. against the
petitioner, are hereby quashed.
___________________
N.V. RAMANA, J.
Dated: 5th October, 2012
