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Konath Madhavi Amma Vs. S.M. Sherief and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1985CriLJ1496
AppellantKonath Madhavi Amma
RespondentS.M. Sherief and anr.
Cases ReferredBalraj Khanna v. Motiram
Excerpt:
- - they have spoken to the bad character and antecedents of the complainant and her daughter which persuaded ext. therefore his contention is that the acquittal is perfectly justified. the purpose of a charge is to tell an accused person as precisely and concisely as possible of the matter with which he is charged and sections 221 -224, cr. absence of necessary allegations in the complaint cannot be made good by the evidence adduced during trial. delect in the complaint cannot be allowed to be made good by evidence adduced during trial......the accused mainly on two grounds:(i) the complaint is conspicuous by the absence of the specific defamatory statements and as such it did not disclose a cause of action; and(ii) no neighbour was examined to prove the reputation of the complainant and her daughter and pws. 2 to 5 are not persons of the locality competent to prove the reputation of the complainant and her daughter.5. it is true that pws. 2 to 5 are residing at some distance. some of them are not having personal acquaintance with the character, antecedents and reputation of the above said persons. some others are interested persons. therefore, it may not be incorrect if it is found that the reputation, if any, of the complainant and her daughter is not proved by examining these witnesses. but in a complaint for.....
Judgment:

S. Padmanabhan, J.

1. The appeal is by the complainant in C. C. No. 613 of 1977 on the file of the Chief Judicial Magistrate, Ernakulam and it is directed against the judgment dt. 30-5-1980 dismissing the private complaint filed for offences punishable under Sections 500 and 501 of the Indian Penal Code. The respondent-accused is the Editor, Printer and Publisher of a daily newspaper by name 'Geetha', published from Ernakulam. Exts. PI, P2 and P3 are respectively the publications made by him in the issues of his paper dt. 2-1-1977, 10-4-1977 and 21-8-1977. The complainant's case is that these publications are defamatory to her and her daughter, in having openly attacked their conduct especially morality. The learned Chief Judicial Magistrate acquitted the accused.

2. The main question arising in this appeal is whether the complaint is fatally defective inasmuch as it has not disclosed the allegations which specifically constituted the imputations affecting the reputation of the complainant and her daughter.

3. Exts. PI to P4 were marked on the side of the complainant. Of them Exts. PI to P3 are the impugned publications and Ext. P4 is a postal receipt for having issued notice to the accused. Pws. 1 to 5 are the witnesses of whom PW. 1 is the complainant. PWs. 2 to 5 were examined to prove that by reading Exts. PI to P3, the complainant and her daughter were lowered in their estimation. The defence documents are Exts. Dl and D2 and D2(a). Exts. D2 and D2(a) are the postal receipts. Ext. Dl is a mass petition addressed to the Deputy Superintendent of Police. It contains several allegations against the complainant and her daughter. DWs. 1 and 2 are signatories to Ext. Dl. They have spoken to the allegations in Ext. Dl as well as the alleged bad character, antecedents and reputation of the complainant and her daughter. A copy of Ext. Dl was sent to the accused and it is said to be the basis of the impugned publications.

4. The Chief Judicial Magistrate seems to have acquitted the accused mainly on two grounds:

(i) The complaint is conspicuous by the absence of the specific defamatory statements and as such it did not disclose a cause of action; and

(ii) No neighbour was examined to prove the reputation of the complainant and her daughter and PWs. 2 to 5 are not persons of the locality competent to prove the reputation of the complainant and her daughter.

5. It is true that PWs. 2 to 5 are residing at some distance. Some of them are not having personal acquaintance with the character, antecedents and reputation of the above said persons. Some others are interested persons. Therefore, it may not be incorrect if it is found that the reputation, if any, of the complainant and her daughter is not proved by examining these witnesses. But in a complaint for defamation, it is not necessary for the complainant to prove his or her reputation. PWs. 2 to 4 have read the publications and they said that by reading them the complainant and her daughter were lowered in their estimation.

6. It is not necessary to prove that the complainant directly or indirectly suffered from the scandalous imputations. Proof of intention, knowledge or reasonable belief on the part of the accused regarding the possible harm to reputation is sufficient. Whether harm was actually caused or not is immaterial. Even the intention to cause harm to the reputation is not a necessary factor to be proved. It is enough, if it is shown that the accused had reason to believe that the imputations are likely to harm the reputation.

7. Exts. PI to P3 contained reckless imputations which are likely to affect the reputation of the complainant and her daughter and capable of lowering them in the estimation of others. They were published in a daily newspaper. Their morality and reputation were openly challenged. They were even depicted as prostitutes extending uncultured behaviour to the society. The complainant and her daughter were described as prostitutes engaging brokers. Another allegation is that they are in the habit of supplying their body to politicians and officials including police personnel for gaining their ends. There cannot be any dispute that the imputations contained! in the publications are per se defamatory.

8. The press has great power in impressing the minds of the people. They are expected to take due care before publishing anything likely to harm the reputation of others. It appears that even the accused admitted the fact that he is the Editor, Printer and Publisher of the paper and that the publications came in his paper. One would naturally expect him to exercise due care and caution before publishing such statements.

9. It appears that there was an attempt on the part of the accused to justify Exts. PI to P3 by proving that the imputations were only reproductions of the contents of Ext. Dl mass petition by the local public on the basis of which the Circle Inspector of Police warned the complainant and her daughter. DWs. 1 and 2 were among the signatories to Ext. Dl. They have spoken to the bad character and antecedents of the complainant and her daughter which persuaded Ext. Dl complaint. The evidence further shows that on the basis of Ext. Dl the complainant was summoned to the Karayogam of which she was a member. It is also seen from the evidence of DWs. 1 and 2 that on account of her misbehaviour in the office of the Karayogam she was dismissed from its membership. From the evidence of PWs. 1 itself, there are reasons to think that on the basis of Ext. Dl she was summoned by Circle Inspector of Police. So also, there is evidence to show that she was warned by him. Though the above facts are capable of causing some aspersions on the conduct and reputation of the complainant, they cannot be taken as legal evidence.

10. The stand taken by the complainant was that by the conduct of accused he must be held responsible for Exts. PI to P3 which are per se defamatory and hence without further proof he ought to have been found guilty and convicted. But the contention of the accused is that in the absence of necessary averments in the complaint, the court is bound to find that no cause of action is made out. Therefore his contention is that the acquittal is perfectly justified. If so, the only remaining question to be considered is whether the absence of incorporation of the defamatory imputations in first person or at least a substantial account of the same in the complaint is fatal to the prosecution or not.

11. I have already adverted to the gist of the accusation contained in Exts. PI to P3. The contention of the accused is that the complaint in a defamation case is equivalent to the charge in a case. In this connection he relied on the decision in Balakrishnan v. State, 1957 Ker LT 1230 : (1958 Cri LJ 516) wherein it was laid down:

The purpose of a charge is to tell an accused person as precisely and concisely as possible of the matter with which he is charged and Sections 221 - 224, Cr. P. C, give clear and explicit directions as to how a charge should be drawn up. The framing of a proper charge is vital to a criminal trial and this is a matter on which the judge should bestow the most careful attention. In this case the charge against each of the accused is a long rambling document cluttered with irrelevant details telling him not merely what he himself but also what the other accused persons did in the course of the transaction, but at the same time failing to tell him - and it is here that the objection lies - of the matters making out the offences with which he was eventually convicted.

12. In a defamation case, the only paper containing the accusation of offences given to the accused is the complaint. What he is called upon to answer are the accusations in the complaint. Absence of necessary allegations in the complaint cannot be made good by the evidence adduced during trial. Cause of action is the allegation in the complaint alone. What is required further is only adducing evidence in support of those allegations. Accused is entitled to know what are the allegations against him. Then only he will be able to answer the allegations and shape his defence. For that purpose, he cannot be asked to look into the evidence, oral or documentary. Such evidence is intended only as proof of accusations. Delect in the complaint cannot be allowed to be made good by evidence adduced during trial. In this case by going through Exts. PI to P3, the accused may be aware of the imputations. Even otherwise, he may be aware of them because the publications came in his paper. But that is not the question. From the complaint itself, he is entitled to know what are the accusations which formed the basis of the complaint.

13. According to the decided English cases dealing with libel the actual words alleged to be used must be stated in the indictment. In i our country such a strict standard is not insisted on while dealing with cases of defamation by spoken words. That may be because spoken words are difficult to be understood and remembered for reproduction in first person. But we are dealing with a case of written accusation that came in the papers and not spoken words. Even according to the law followed in our country it is desirable to reproduce the defamatory words in first person to the extent possible. When the defamatory statements are not unreasonably lengthy so as to make them impossible or difficult of reproduction in first person, law insist such reproduction. The object is to enable the accused to understand and answer the allegations against him. Even in cases of impossibility of reproduction in first person, law insists on a substantial account of the accusations being included in the complaint. Otherwise the complaint is considered defective.

14. In this connection it may be advantageous to extract the relevant portions from the decision in Balraj Khanna v. Motiram, 1971 SCC (Cri) 647 : (1971 Cri LJ 1110):

26. After a consideration of the various decisions referred to above, we are of the opinion that the propositions laid down in English decisions dealing with libel that the actual words alleged to be used must be stated in the indictment cannot be applied on all fours when dealing with the cases of defamation by spoken words under Section 499, I. P. C. It will be highly desirable no doubt if the actual words stated to have been used by an accused and which are alleged to be defamatory are reproduced by the complainant. The actual words used or the statements made may be reproduced verbatim by the complainant if the words are few and the statement is very brief. But in cases where the words spoken are too many or the statements made are too long, in our opinion, it will be the height of technicality to insist that the actual words and the entire statements should be reproduced verbatim. The object of having, if possible, the actual words or the statements before the Court is to enable it to consider whether those words or the statements are defamatory in nature. That purpose or object will be served if the complainant is able to reproduce in his complaint or evidence in a substantial measure the words of imputation alleged to have been uttered. If the statements or the words placed before the Court by the complainant are held to be not defamatory, it will mean that the complainant will have to lose. Therefore, it is to his interest to get a proper adjudication from the Court that as far as possible the words spoken or the statements actually made and which he alleges to be defamatory are before the Court. But a complaint cannot be thrown out on the mere ground that the actual words spoken or the statements made have not been stated in the complaint. From the point of view of accused also it is necessary that the matters alleged to be dafamatory in the complaint must be so stated as to enable them to know the nature of the allegations that they have to meet.

27. The further question is whether the complaint is defective for the reason that the actual statements alleged to have been made by the individual accused have not been stated therein. So far as this aspect is concerned, if the case of the complainant is that each of the appellants made different statements or spoke different words, which are defamatory, then it is absolutely necessary that the complaint must specify the words spoken or the statements made by each of the appellants. But that is not the allegation in the complaint.

15. Even the substance of the defamatory statements are not seen included in the complaint. What is stated in the complaint is : (This matter being in Malayalam we regret that we have to omit it here as we have no facilities for printing Malayam - ED.). Nothing else is in the complaint. Evidently, there are clear defamatory imputations in Exts. PI to P3. Such particulars or even their substance were not included in the complaint. It is not known why the person who drafted the complaint avoided at least a substance of the defamatory statements. A mere reading of the complaint alone will not impress anybody that the publications were defamatory to any extent. It goes without saying that the complaint by itself does not make out a cause of action at all.

16. I have already stated that in moulding his defence the accused is bound only to go through the averments in the complaint. If the averments in the complaint do not disclose a cause of action, the court may not be bound to take congnizance of the complaint. Cause of action which is absent in the complaint cannot be allowed to be substituted by subsequent evidence adduced in the case. Evidence could be allowed to be let in only for the purpose of substantiating the allegations and the cause of action made out in the complaint. Taking cognizance of a defective complaint which does not disclose a cause of action is definitely an illegality. It goes without saying that the action of the learned Magistrate in taking cognizance of the complaint and proceeding with the same was legal.

Therefore, I am of opinion that the learned Chief Judicial Magistrate was right in his finding that a case has not been made out against the accused-respondent. The acquittal does not require interference. Cri. Appeal is therefore dismissed.


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