Malyakel Abraham Joy and others vs John Raphael

S.L. Jain, J.

Invoking extraordinary jurisdiction of this Court u/s 482, Criminal Procedure Code the petitioners have filed this petition for quashing the criminal complaint case No. 861/02 pending in the Court of CJM., Sagar.

The case of the petitioners is that they are permanent resident of Kerala State and respectable senior religious leaders of the Christian Community of international fame. They are spiritual priests of Brethren Church, which is situated in Trichur and Kochi, Kerla State. The Brethren Church recognizes persons and awards title i.e. ''Commendation'' to those persons who are members of the Church and desire to engage themselves in full time God''s work on the understanding that person will strictly abide by the principles of bibles. The names of such person is printed in Church Bulletin so that members of the Church may take note of the said Commendation. On 10-10-1990 respondent John Raphael was awarded commendation by Brethren Assembly East Fort, Trichur. Petitioner No. 1 being the elder of the said church signed the letter of commendation. As a result of his commendation, respondent enjoyed the support of the members of the churches. Before commendation, petitioner No. 1 M. A. Joy solemnized the marriage of respondent No. 1 on 12-8-1990 in East Fort Brethren Assembly, Trichur.

During the year 1997-98, respondent''s wife Smt. Sheela Raphael was in Trichur with her parents for her fourth delivery and during this time, she complained to the elders of the Brethren Assembly regarding the ill-treatment and cruelty of respondent (her husband). Smt. Sheela Raphael apprised the elders of the church that respondent was not taking care of her and not taking her and her children back to Sagar for last 1 1/2 years. She also complained about the physical and mental cruelty meted out to her. She stated that respondent used to beat her almost daily and he also sent a legal notice for divorce from Sagar.

The elders of the church wrote to the respondent requesting him to come to Trichur for amicable settlement of the matter but the respondent did not come. Thereafter, church stopped sending financial gifts to the respondent and instead passed those gifts to his wife Smt. Sheela Raphael. The respondent filed divorce petition against his wife, who apprised this fact to the Church.

Respondent''s divorce petition and his cruel behaviour to his wife was considered to be breach of principles of bible, therefore, the Brethren Assembly Church took a unanimous decision to withdraw the ''Commendation'' and the ''Commendation'' given to the respondent was withdrawn on 15-1-1999 and this fact was also apprised to the respondent and the matter was sent for information to be printed in bulletins i.e. ''Suviseshadhwani'' and ''Dharamadeepthi''. These bulletins are published in Malayalam language only from State of Kerala and they are not available in the market. They are circulated among the members who subscribe to it. The English translation of the matter which was published in the aforesaid bulletins has been produced in the petition.

The respondent''s wife Smt. Sheela Raphael, apprised the wife of petitioner No. 1 that the respondent is very annoyed with the elders of the church including the petitioners and he wants to harass, humiliate and teach them a lesson for supporting her and also for withdrawal of the Commendation.

In reply to the legal notice served or the respondent, it was informed to him that petitioner No. 1 has not sent or signed any letter withdrawing the commendation. Petitioner No. 1 further informed him that he has not sent any letter to the aforesaid bulletins. Petitioners No. 2 and 3 signed the letter withdrawing the ''Commendation'' being elders and that also on behalf of the East Fort Brethren Assembly, Trichur and not on their personal capacity. It is also averred in the petition that the respondent filed a complaint before CJM, Sagar for an offence punishable u/s 500, Indian Penal Code after two years of the withdrawal of the ''Commendation'' wherein incorrect statements have been made. The CJM Sagar, without directing any investigation to be made by the police u/s 156(3), Criminal Procedure Code to ascertain the genuineness of the complaint, registered the complaint and issued warrant of arrest against the applicants without appreciating the fact that the complaint does not disclose any offence. The publication in the bulletins regarding withdrawal of the ''Commendation'' reveals that there is no material which comes within the definition of defamation as defined u/s 499 of the Indian Penal Code. It is also the case of the applicants that the Court at Sagar had no jurisdiction to take cognizance of the matter. After service of notice, respondent appeared and submitted his reply.

I have heard Shri G. S. Ahluwalia, learned counsel appearing for the petitioners and the respondent who appeared in person.

Learned counsel for petitioner submitted that the said bulletins are published in Malayalam language only from State of Kerala, therefore, the Court at Sagar had no jurisdiction to entertain the complaint.

It is true that the bulletins are admittedly published from Kerala but the cause of action of defamation accrues not only at the place where the bulletins were, published but also at the place where they are circulated. Therefore, not only the Court within whose jurisdiction bulletins are published but all other Courts within whose jurisdiction bulletins are circulated have jurisdiction to entertain the complaint.

In this regard, learned counsel for petitioners submitted that there is no material that the bulletins were circulated at Sagar.

This contention cannot be accepted. In para 6 of the complaint, complainant has specifically stated that the bulletins were distributed not only in the Kerala State but also other States of India and the overseas countries. The bulletins were distributed at Sagar also. In view of this specific averments in the complaint that the bulletins were distributed and circulated at Sagar also, it cannot be said that the Court at Sagar had no jurisdiction.

Learned counsel for petitioners further submitted that the alleged imputation is no defamation, the same being true and published for the public good.

The imputation which has been published is that the wife of the respondent reported to the Church that the respondent used to persecute her continually without reason and he has forsaken her and four children at Trichur. The respondent examined his wife as a witness who categorically stated that she did not inform to the Church that her husband used to persecute her therefore, at this stage, it cannot be said that the imputation made is true. It is for the petitioners to prove their defence at trial.

Learned counsel for petitioners also submitted the imputation was made in good faith for the public good. A caution was conveyed in good faith for the public good.

There is no material in the complaint or in the sworn testimony of the witnesses examined by the complainant which would bring the case within the exceptions 9th and 10th of section 499 of the Indian Penal Code. The burden of proving the exceptions is on the petitioners. It is for the petitioners to establish their defence.

Where a prima facie case is made out, trial Court committed no error in taking the cognizance. The imputations made are per se defamatory.

While exercising the jurisdiction u/s 482, Criminal Procedure Code this Court does not enter into the merits of the allegations made in the complaint. When averments made in the complaint disclose a prima facie case in respect of offence u/s 500, Indian Penal Code, applicability of exceptions to section 499, Indian Penal Code can be gone into only during the trial. When the imputation complained of is prima facie defamatory, Magistrate is bound to issue summons and is not at liberty to anticipate the defence of the accused.

Learned counsel for petitioners has also submitted that petitioner No. 1 had not send or signed any letter of withdrawing the commendation. He is not connected or responsible for editing, printing or publishing the aforesaid two bulletins. The respondent had implicated the petitioner No. 1 to get cheap publicity by misusing lawful process of the Court. He also submitted that petitioners No. 2 and 3 are also not responsible for publishing the bulletins. The bulletin ''Suviseshadhwani'' was edited, printed and published by the petitioner No. 4, on behalf of YMEF.

The contention is not acceptable. It has been specifically mentioned in the complaint that petitioners No. 1 to 3 got the imputation published with the help of petitioner No. 4 therefore, at this stage it cannot be said that no offence has been committed by petitioners No. 1 to 3.

Where the averments made in the complaint disclose a prima facie case, this Court should not interfere in exercise of jurisdiction u/s 482, Criminal Procedure Code. The trial Court on appreciation of evidence has come to the conclusion that a prima facie case u/s 500, Indian Penal Code is made out against the petitioners. This Court is not expected to reassess or review the evidence in exercise of jurisdiction u/s 482, Criminal Procedure Code.

No case for interference in exercise of jurisdiction u/s 482, Criminal Procedure Code is made out. The petition is, therefore, dismissed.