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1991 Supreme(Mad) 571
High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE PADMINI JESUDDURAI
Dr. J. Sudarshan - Appellant
Versus
R. Sankaran - Respondents
Criminal Misc. Petition No. 687 of 1990
Decided On : 16 August 1991
Defamatory statements made in a plaint are not absolutely privileged and can form the basis of a criminal prosecution. The privilege is qualified and the petitioner must establish good faith as required under Exception 8 of Section 499 of the IPC.
Headnote:
Defamation - Indian Penal Code - Section 500 - The court held that defamatory statements made in a plaint are not absolutely privileged and can form the basis of a criminal prosecution. The privilege is qualified and the petitioner must establish good faith as required under Exception 8 of Section 499 of the IPC. The court also held that the pendency or result of a civil suit does not prevent a parallel criminal prosecution for defamation.
Fact of the Case:
The petitioner is facing trial for an offence under Section 500 of the Indian Penal Code (IPC) for defamatory allegations made in a civil suit. The petitioner filed an application to quash the proceedings invoking the inherent powers of the court under Section 482 of the Criminal Procedure Code (Cr.P.C). The allegations made in the plaint were per se defamatory and false. The petitioner argued that the civil suit should be allowed to be disposed of on merits before any criminal complaint can be filed. The respondent argued that the defamatory statements in the plaint are not absolutely privileged and the petitioner must establish good faith as required under Exception 8 of Section 499 of the IPC. The court held that at this stage, the court must only determine whether the averments in the complaint, if accepted, constitute an offence. If they do, the court cannot stifle the prosecution and must give the complainant an opportunity to prove their case. The court also held that the privilege to statements made in judicial proceedings is qualified and not absolute. The court dismissed the petition and clarified that the observations made in the order will not affect the parties in the civil litigation or the criminal prosecution.
Finding of the Court:
The court held that the defamatory statements made in the plaint can form the subject matter of a criminal prosecution and the privilege is only qualified. The court also held that the present prosecution is not premature and the respondent can choose to prosecute the petitioner irrespective of the pendency or result of the civil suit. The scope of the civil and criminal proceedings is different.
Ratio Decidendi: The court held that defamatory statements made in a plaint are not absolutely privileged and can form the basis of a criminal prosecution. The privilege is qualified and the petitioner must establish good faith as required under Exception 8 of Section 499 of the IPC. The court also held that the pendency or result of a civil suit does not prevent a parallel criminal prosecution for defamation.
Result: The court dismissed the petition and allowed the criminal proceedings to continue.
This application is by the accused in C.C. No. 450/90 on the file of the VII Metropolitan, Magistrate, George Town, Madras facing trial for an offence u/S. 500, IPC, on a complaint filed by the respondent herein, invoking the inherent powers of this court u/S. 482, Cr.P.C. to quash the above proceedings.
2. The complaint has been filed by the respondent on the allegation that after nearly 55 years of meritorious service in the Bank of Baroda in various capacities, he relinquished his office for personal reasons and thereafter on 20-11-1988, he attended an interview before the petitioner for a suitable placement for him. The petitioner informed him that a membership fee of Rs. 5, 000/-, refundable in the event of the petitioner not being able to provide a job, had to be paid and accordingly, he paid the same. Later on found that the interview was only a hoax and he demanded the return of Rs. 5, 000/-. To prevent the respondent from initiating action against the complainant for return of the above amount obtained on false and fraudulent representation, the petitioner filed O.S. 9681/80 on the file of VII Assistant City Civil Judge, Madras against him at the 7th defendant and others for a token damage of Rs. 400/- for alleged illegal and unlawful acts. In paragraph 5 of the plaint, the petitioner had alleged as follows :-
"7th defendant claiming himself as General Manager of the Bank of Baroda forged the signature of the 8th defendant for obtaining top level employment in the private sector having done malpractices in the Bank of Baroda." *
3. The above allegations were per se defamatory and were totally false. The 8th defendant, who was a former Minister, had never been met by the respondent. The respondent's reputation had been greatly lowered in the estimation of others and hence the complaint u/S. 500, IPC. On process being issued to the petitioner, the present application has been filed by him to quash the proceedings.
4. Dr. J. Sudershan the petitioner herein, who initially appeared as party-petitioner and later on enrolment as an advocate, would submit that the civil suit he has filed must be allowed to be disposed of on merits and while it is still pending, there could be no parallel proceeding like a criminal complaint of the present type as laid down by the Supreme Court in Ram Sumer Puri Mahant v. State of U.P., 1985 AIR(SC) 472, 1985 (91) CRLJ 752, 1984 (2) Scale 1014, 1985 (1) SCC 427, 1985 CRLR 1, 1985 BLJ 409, 1985 BBCJ 37, 1985 BLT 134, 1985 SCC(Cr) 98, 1985 ACC 45, 1985 All(LJ) 240, 1985 (2) All(CriC) 45, 1994 (3) RCR 217 : 1985 AIR(SC) 472, 1985 (91) CRLJ 752, 1984 (2) Scale 1014, 1985 (1) SCC 427, 1985 CRLR 1, 1985 BLJ 409, 1985 BBCJ 37, 1985 BLT 134, 1985 SCC(Cr) 98, 1985 ACC 45, 1985 All(LJ) 240, 1985 (2) All(CriC) 45, 1994 (3) RCR 217 ). It was further urged that it is premature to file a criminal complaint and there was time enough for the respondent, if the suit is dismissed to initiate action against the petitioner and whatever has been stated in the plaint, would be substantiated by the petitioner during trial of the civil suit and averments in the plaint are absolutely privileged and cannot form the subject matter of a prosecution u/S. 500, I.P.C. Reference was made to certain decisions, which I shall refer to in the course of discussion.
5. Per contra, Thiru A. Raghunathan, learned counsel for the respondent would urge that the averments in a plaint or court proceedings, are not absolutely privileged and the passage being per se defamatory, it is for the petitioner to bring his case within any one of the exceptions to S. 499, I.P.C., which would be done only during trial, that the allegations made were motivated and not necessary for the purpose of the civil suit, which itself is a frivolous one and filed merely to blackmail parties, as is seen from the status of the various defendants, against each of whom, highly defamatory statements are made. The learned counsel relied upon a judgment of a
