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Dr.Joy Anto vs. C.R.Jaison - (High Court of Kerala) (10 Mar 2021)

Section 499 of the IPC does not give absolute privilege to statements made in a Court of law in the judicial proceedings

MANU/KE/0632/2021

Criminal

Present petition is filed under Section 482 of Code of Criminal Procedure, 1973 (Cr.P.C) by the accused for quashing complaint and all proceedings against him pending in the Court based on the complaint. The Petitioner submitted that, statements made about the complainant in the annual report of the company and the counter affidavit filed by the Petitioner in the writ petition is not defamatory in nature. Further, making a statement in the counter affidavit filed in a writ petition before this Court does not amount to publication. No criminal liability would arise on making any defamatory statement in a judicial proceeding before a court of law. Petitioner is entitled to the benefit of the fifth and the eighth exceptions provided to Section 499 of the Indian Penal Code, 1860 (IPC).

As per complaint, two statements made about the complainant are alleged to be defamatory to him. The first statement is the one made in the annual report of the company that the complainant resigned from the company on account of dereliction of duty. The second one is the statement made by the Petitioner in the counter affidavit filed in the writ petition that the complainant is a person against whom misconduct was proved and that he is a person who has misappropriated the funds of the company.

As far as the first statement is concerned, the averments in the complaint, by themselves, would show that, the complainant had omitted to file suits on behalf of the company. Further, there is no specific allegation that, it was the Petitioner who made the statement in the annual report of the company and that, he was the person who published it. In such circumstances, as far as the first statement is concerned, it is doubtful whether it would attract the ingredients of the offence defined under Section 499 of the IPC as against the petitioner.

However, the statement that the complainant was removed from the company on proved misconduct and on misappropriation of the funds of the Company is prima facie, defamatory to him. The complainant is a lawyer. The statement that, he is a person against whom misconduct has been proved would definitely harm his reputation as a lawyer. The Petitioner has got no plea that any competent authority had found the complainant guilty of misconduct.

There is no basis for the plea raised by the Petitioner that, making a statement in the counter affidavit filed before this Court in the writ petition does not amount to publication. The essence of publication in the context of Section 499 of the IPC is the communication of the defamatory imputation to persons other than the person against whom the imputation is made. If the pleadings filed in the Court contain defamatory statements, it amounts to publication. Once a statement is filed in a Court of law, it can be considered as published.

There is also no merit in the contention of the Petitioner that, the statement made by the petitioner in the counter affidavit filed before this Court in the writ petition enjoys absolute privilege and it excludes criminal liability. Freedom of speech and expression is a fundamental right under the Constitution. But, all fundamental rights are subject to reasonable restrictions. Section 499 of the IPC does not give absolute privilege to statements made in a Court of law in the judicial proceedings. The privileges recognised under Section 499 of the IPC are qualified. However, in a civil action for defamation, plea of absolute privilege is a valid defence.

Another plea raised by the Petitioner is that he is entitled to the fifth and eighth exceptions provided to Section 499 of the IPC. Whether the Petitioner is entitled to get the benefit of any of the exceptions provided to Section 499 of the IPC, whether he had made the statement in the counter affidavit filed in the writ petition in good faith for protection of his interest etc. are matters which cannot be decided by this Court in this petition filed under Section 482 of CrPC. Ordinarily, the question as to whether the statement in a given case falls under any of the ten exceptions to Section 499 of the IPC will have to be decided only after trial. They are matters of evidence. The prayer made by the Petitioner for quashing complaint and the criminal proceedings initiated against him by the complainant cannot be allowed.

Tags : ABSOLUTE PRIVILEGE   COMPLAINT   QUASHING OF  

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