In cases of criminal defamation, the magistrate cannot direct the police to register a crime and investigate the offense under Section 500 of the IPC, as established by the judgments of the Apex Court and the High Court of Kerala.

ORDER

1. Petitioner is before this Court calling in question proceedings in Crime No.286 of 2020 pending before the 1st Additional Chief Metropolitan Magistrate, Bangalore registered for offences punishable under Sections 499 and 500 of the IPC read with Section 67 of the Information Technology Act, 2008 ('the Act' for short).

2. Heard Sri Adit Chandangoudar, learned counsel appearing for the petitioner, Smt. K.P.Yashodha, learned High Court Government appearing for respondent No.l and Smt. M.S. Roopa, learned counsel appearing for respondent No.2.

3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:-

The 2nd respondent is the complainant. The petitioner and the 2nd respondent have had certain transactions. It is the allegation in the complaint that the petitioner is a habitual money lender and the complainant comes in contact with him and also borrows money by way of hand loan. On such borrowings, the complainant had issued certain cheques in furtherance thereto, as security for the said loan. The complainant also appears to have deposited original property papers with the petitioner. The contention of the complainant in the complaint is that he had returned all the money. Notwithstanding return of money, the petitioner had registered two criminal cases against the complainant - one in Crime No. 127 of 2018 on 28-03-2018 and the other in Crime No. 165 of 2018 on 2-07-2018. Both the crimes were for offences punishable under Sections 506, 504, 420 and 323 of the IPC. The registration of both the crimes was called in question before this Court by the 2nd respondent in Criminal Petition Nos.5292 of 2018 and 5293 of 2019. This Court by orders of the same date i.e., 11-07-2019 dismissed both the petitions on the score that the power under Section 482 of the Cr.P.C. cannot be exercised in the teeth of the allegations made in those complaints. Further, proceedings in terms of the dismissal order appear to be in progress against the complainant in those cases.

4. The subject case concern a private complaint registered by the complainant herein, at a later point in time, after the dismissal of the aforesaid cases by this Court. The allegation in the present complaint is that the petitioner after dismissal of the cases (supra) has circulated messages on WhatsApp group depicting the complainant to be a 420; not only 420 he should be labeled as 840 because he has filed two cases against him. After the complaint, the Police have registered a crime in Crime No.286 of 2020 against the petitioner for offences punishable under Sections 499 and 500 of the IPC r/w Section 67 of the Act. It is the registration of the aforesaid crime against the petitioner that drives the petitioner to this Court in the subject petition.

5. The learned counsel appearing for the petitioner would vehemently argue and contend that the very complaint was not maintainable in the teeth of the Ninth exception to Section 499 of the IPC which takes away the effect of defamation to become punishable under Section 500 of the IPC and would submit that Section 67 of the Act also cannot be invoked as it is not even defamatory and circulated amongst a particular group.

6. On the other hand, the learned counsel representing the 2nd respondent/complainant would vehemently refute the submissions to contend that the statement made in WhatsApp group called 'Parivartane' against the complainant is on the face of it defamatory, as the complainant is yet to be guilty in any of the cases. Mere registration of crime against the complainant cannot mean that he could be defamed and his image be lowered in the likeminded people of the society. She would submit that it is a matter for trial as Ninth exception to Section 499 of the IPC is always a question of fact.

7. The learned High Court Government Pleader would also toe the lines of the learned counsel appearing for the 2nd respondent and would submit that it is a matter for trial.

8. I have