IMPORTANT POINT
Defamation – Without going to trial, Court cannot jump into conclusion that there is no defamatory statement made by accused persons or there is no criminal intention or Mens Rea to defame complainant.

ORDER

The Crl.P.No.4359/2022 is filed by the petitioner/accused No.3 and Crl.P.No.4451/2022 is filed by the petitioners/accused Nos.1 and 2 under section 482 of Cr.P.C for quashing the criminal proceedings against them in CC.No.30741/2021 pending on the file of VIII ACMM, Bengaluru, for the offence punishable under Sections 499 of IPC.

2. Heard the argument of learned counsel for both parties.

3. The case of the petitioners is that the respondent/complainant who is an advocate filed a complaint under section 200 of Cr.P.C before the Magistrate for the offence punishable under Section 499 of IPC and the learned Magistrate previously dismissed the complaint on 2.2.2019. Thereafter, the complainant approached the Sessions Court under section 397 of Cr.P.C by filing revision petition and the revisional Court had set aside the order of dismissal of the complaint and remanded the matter back to the Magistrate to take cognizance against the petitioners. Subsequently, the learned Magistrate have taken the cognizance and issued the process, under section 204 of Cr.P.C which is under challenge before this court.

4. The complainant has averred in the complaint that the petitioner/accused No.3 is a practicing advocate at Dakshina Kannada. The accused Nos.1 and 2 (petitioners in Crl.P.No.4451/2022) have engaged the service of accused No.3 for filing objections/written statement before the Upalokayuktha in a complaint against the accused Nos.1 and 2, wherein the accused No.3 filed a statement of objections by making defamatory allegation against the complainant, with an intention to tarnish the image of the complainant. Therefore, he has filed the complaint before the Magistrate and also said to have filed a civil suit for claiming damages of Rs.1 crore which is pending in the Civil Court.

5. The learned counsel for the petitioner who is appearing for accused No.3, has contended that this petitioner is an advocate practicing at Dakshina Kannada, he has filed statement of objection on behalf of his client, i.e., accused nos.1 and 2 and there is no personal interest or no intention to tarnish the image of the complainant. The accused Nos.1 and 2 were running the quarry business and the complainant had filed a public interest litigation and later withdrawn the same. Subsequently, complainant filed a complaint to the Lokayuktha and this petitioner appeared as an advocate. Therefore, there is no criminal intention to defame the complainant, he has only acted in a good faith for protecting his client, therefore, the advocate cannot be held for defamation. The entire documents should be looked into and it should not be pick and choose of Men’s Rea or criminal intention to defame the complainant. Hence, prayed for quashing the complaint against the accused No.3.

6. The learned counsel for the petitioners/accused Nos.1 and 2 also taken similar contention that the complainant already filed civil suit for Rs.1 crore damages, now the suit is in the stage for evidence. There is no allegation or statement made by these accused in order to attract Sections 499 or 500 of IPC. Exception of 5 and 9 of the Section 499 of IPC, there is protection available to these petitioners. Further contended the advocate filed objection, they have not obtained signatures of the accused Nos.1 and 2, therefore, the question of punishing the accused Nos.1 and 2 does not arises. Hence prayed for quashing the criminal proceedings against them.

7. Per contra, learned counsel for the respondent has contended, whether there is intention or Mens rea to defame the complainant, is matter of trial. The accused Nos.3 has acted as a counsel for the accused Nos.1 and 2 and accused No.3 alone signed the written statement. The complainant is an advocate and he has put in 41 years of practice. The complainant also has filed a public interest litigation and as per the direction of the High court he has withdrawn the writ petition and approached the Upalokayuktha. In the said proceedi