Nagendran Servai vs Balakrishnan Servai

Arunachalam, J.—In C.C. No. 160 of 1985, the Petitioner was convicted for offences punishable under Sections 500 and 504, IPC. and

sentenced to pay a fine of Rs. 350/- for each of the offences, in default to undergo simple imprisonment for two months. Out of the fine, if

collected, Rs. 600/- was directed to be paid as compensation to the Respondent, on whose private complaint this prosecution was initiated. The

aggrieved Petitioner challenging the sustain-ability of the verdict of the trial Magistrate preferred Criminal Appeal No. 186 of 1986, before the

Court of Sessions, Pudukkottai. The appellate Court concurred with the findings rendered by the trial Magistrate and dismissed the appeal. Hence

this revision.

The prosecution case will have to be stated in brief, for the disposal of this revision. The Respondent was a member of the Legislative Council in

the erstwhile State of Pudukkottai for over 14 years. He is a man of status and was a member of the State Legislature and certain Select

Committees. He was also for short time a Minister under the erstwhile Pudukkottai King. He was a member of the Legislative Assembly, Tamil

Nadu, for about five years. He was widely respected in his locality.

The Petitioner is the son of the elder sister of the Respondent who would claim to have gifted some property to the Petitioner and his mother.

The Petitioner''s father was managing the property of the Respondent. From 1974, the father of the Petitioner chose to act against the interest of

the Respondent. The Petitioner and his father chose to join the opponents of the Respondent in a civil suit in which ultimately the Respondent

succeeded. While the Respondent was in Pudukkottai, on 17.11.1984, he received information that his elder brother V. Ramanathan Servai had

expired in Sri Lanka. The Petitioner on getting to know of this information met the Respondent and condoled him. The Petitioner requested the

Respondent, to proceed on the next day to Vennavalkudi, to facilitate many close friends and relations to condole him. According to the

Respondent, he went over to Vennavalkudi, on

In both the courts below, the Petitioner had claimed benefit of Exception 9 to Section 499, I.P.C. and pleaded alibi as well. For a variety of

reasons stated, in the judgment of both the courts below, rightly it was held, that there was not even an iota of evidence to facilitate application of

Exception 9. It was specifically found, that there Was no good faith in the defamatory words aimed at the Respondent and no question of

protection of interest of the Petitioner himself was involved in making of imputations, against the Respondent. It was also not intended for

protection of any other person or for public good. D.W. 1 was mainly examined to substantiate the plea of alibi, but his evidence did not inspire

confidence, and was rightly rejected by both the courts below. It appears from the evidence, that P.W. 2 is more closely related to the Petitioner

than the Respondent. His evidence fully corroborates the version of the Respondent who had examined himself as P.W. 1. The Petitioner had not

taken any step, even to remotely produce evidence, to justify his action. There was not only lack of good faith, but recklessness on the part of the

Petitioner is patent. The Petitioner had not exercised due care and attention, while making imputations of a grave nature, which are per se

defamatory, against the Respondent.

In this revision, Mr. S. Pitchai, learned Counsel appearing for the Petitioner, did not rightly take up the plea of the applicability of Exception 9 to

Section 490, I.P.C. or even persisted in harping on the alibi, pleaded. However, he would contend, that the use of common abuse, in the heat of a

quarrel, would not amount to defamation. He also went on to argue, that abuse in the heat of a quarrel would not be defamation, if there was no

intention to harm the reputation of the complainant. He further contended that the Petitioner could not be convicted for both the offences, and the

conviction u/s 504, I.P.C. cannot co-exist. His conviction u/s 504, I.P.C. may have to be set aside. Finally, he contended that the word ''injury''

referred to in Section 357, Code of Criminal Procedure permitting compensation to be ordered, could take in its fold, only physical injury and it

will not apply to a case where the offence alleged is defamation .I have heard Miss. Yamini, learned Counsel appearing on behalf of the

Respondent. I have carefully considered the submissions of Mr. S. Pitchai and I have no hesitation in rejecting all his contentions. My reasons for

such a course are as hereunder.

It is not a case, where the intention of the Petitioner was not to harm the reputation of the Respondent. The manner in which defamatory words

were hurled at the Respondent, have been narrated by me earlier. The mens rea of the Petitioner is patent and his only idea was to bring down the

reputation of the Respondent, in the eyes of persons, who had gathered at the residence of the latter to offer condolences to him. It is not as

though, the provocation was by the Respondent, which resulted in a quarrel between the Petitioner and the Respondent. It was the Petitioner who

commenced questioning the Respondent about certain acts which he had failed to perform in the past. This naturally led to the Respondent

informing the Petitioner that he did not want to have anything to do with persons who had exhibited ingratitude, inclusive of the Petitioner''s father.

This answer cannot be taken to be a provocative act on the part of the Respondent. It is at this point of time, that the Petitioner went on abusing in

defamatory language, the Respondent. Though, as rightly observed by P.R. Gokulakrishnan, in Seetharama Iyer v. K.C. Ramulu (1972 L.W.

(Crl.) 226 , it would not be defamation if the words uttered were only vulgar without any intention on the part of the accused to harm or defame

the complainant, this will be purely within the realm of facts available in each case. The facts in this prosecution clearly indicate, that the intention of

the Petitioner was to harm as well as defame the Respondent.

The offence under Sections 500 and 504 I.P.C. can co-exist. They are distinct offences committed in the course of the same transaction.

Section 504, I.P.C. takes in its fold provocation offered by the offender which had the likelihood of leading the person offended to commit any

other offences or break public peace. It is not the capacity of the individual, who is alleged to have been insulted, to retaliate, which is the true test

for the application of Section 504, I.P.C. The true test is whether a normal person, in the position of the person insulted, would have reacted to the

use of the particular insulting words, by retaliation, in a violent manner and thereby a breach of peace would have been caused. It is the Petitioner,

as stated earlier, who had not only provoked the Respondent but had also intentionally defamed him.

It is true that Section 357, Code of Criminal Procedure speaks of injury simpliciter. ''Injury'' has been defined u/s 44, Indian Penal Code, to

denote harm whatever, illegally caused to any person, in body, mind, reputation or property. Section 2(y) of the Code of Criminal Procedure

which reads as hereunder, ""words and expressions used herein and not defined but defined in the Indian Penal Code have the meanings

respectively assigned to them in that Code"" would permit the meaning of ''injury'' defined in Section 44 of the Indian Penal Code, being applied to

the provisions of Section 357, Code of Criminal Procedure. Obviously, ''injury'' denotes harm caused to any person, in mind and reputation as

well. All the contentions having been negatived, this revision will have to be necessarily dismissed and accordingly it shall stand dismissed.