IMPORTANT POINT
The court held that for defamation to be established, publication of the defamatory statement is essential, and the learned Magistrate's cognizance under Section 182 IPC was invalid due to procedural non-compliance.

ORDER :

P.G. AJITHKUMAR, J.

The petitioner is the accused in C.C.No.159 of 2022 pending before the Judicial Magistrate of the First Class-I, Thiruvananthapuram. On the basis of Annexure-IV complaint filed by the 1^st respondent, summons was issued to the petitioner to answer the offences punishable under Sections 182 and 500 of the Indian Penal Code, 1860 (IPC). The petitioner seeks to quash Annexure IV complaint and all further proceedings in C.C.No.159 of 2022.

2. The petitioner produced Annexures I to V. The 1^st respondent filed a counter affidavit producing therewith Annexures R1(a) to R1(g). The 1^st respondent would contend that Annexure II complaint filed by the petitioner before the Commissioner of Police, Thiruvananthapuram contains defamatory statement and when such statements were made with the intention of lowering reputation of the 1^st respondent among his friends and well-wishers and with the oblique motive of implicating him in offences under the Protection of Children from Sexual Offences Act, 2012 (PoCSO Act), her intention to make defamatory imputations is quite evident. The 1^st respondent would categorically contend that the petitioner is liable to be proceeded against based on Annexure IV complaint.

3. Heard the learned counsel for the petitioner, the learned counsel for the 1^st respondent and the learned Senior Public Prosecutor.

4. The offences alleged in Annexure IV complaint are punishable under Sections 182 and 500 of the IPC. Annexure V is a copy of the proceedings of the learned Magistrate in that complaint. Annexure R1(b) is a copy of the statement given by the 1^st respondent before the learned Magistrate under Section 200 of the Code of Criminal Procedure, 1973 (Code) and Annexures R1(c) to R1(g) are copies of the sworn statements given by the five witnesses before the learned Magistrate under Section 202 of the Code. After considering the allegations in the complaint and statements of those witnesses, the learned Magistrate issued summons to the petitioner. The offences for which cognizance was taken and summons issued are under Sections 182 and 500 of the IPC.

5. Insofar as the offence under Section 182 of the IPC is concerned, it has been contended by the petitioner that its cognizance is bad in view of the bar created under Section 195 of the Code. Section 182 of the IPC makes an act of giving false information to a public servant, which he knows or believes to be false, intending to cause such public servant to take action, is made penal. Section 195(1) of the Code lays down the procedure for taking cognizance of offences punishable under Sections 172 to 188 of the IPC. It envisages that in order for taking cognizance of any of the said offences, a complaint in writing by the public servant to whom such false information was given or some other public servant to whom he is administratively subordinate is mandatory. Therefore, except upon a complaint to whom Annexure II complaint was given, or his administrative superior, the learned Magistrate could not have taken cognizance of the offence under Section 182 of the IPC. Since that procedure was not followed, the order of the learned Magistrate issuing summons to the petitioner to answer that offence is illegal.

6. Three instances of imputation are alleged in Annexure IV complaint that constitute the offence of defamation. The first allegation is that ". The second is that the petitioner abused and used slanderous words in a telephone conversation with the 1^st respondent. The said conversation extracted in paragraph No.6 of the complaint, if published, undoubtedly is defamatory. The third is that while the 1^st respondent along with his friends appeared in the Sreekaryam Police Station in pursuance of the direction for his appearance as part of enquiry on Annexure II complaint, the petitioner repeated the allegations against the 1^st respondent in front of his friends.

7. This Court in Malayalam Communications Ltd. v. K.C. Venugopal [2024 KHC 1545] reitera