Bookmark
PDF
Share
CaseIQ

Kunhikannan v. Kalliani

Kerala High Court

Jul 13, 1972

Judgment

CaseIQ

Smart Summary (Beta)

Factual and Procedural Background

The complainant (petitioner before the revisional Court) filed a criminal complaint (C.C. No. 61 of 1970 before the Additional First Class Magistrate, Tellicherry) under Section 500 Indian Penal Code alleging that respondents, by a registered notice (Ext. P4) sent through their lawyer, referred to the complainant using a derogatory Malayalam expression and also stated that he was a constant defaulter in paying rent. The learned Magistrate discharged the accused on the ground that no offence was made out, finding that the expression only indicated the complainant was "the son of an unfortunate woman" and therefore not defamatory; the Magistrate did not make any finding on the allegation of habitual default in paying rent. The complainant challenged the discharge by way of revision (Criminal R.P. No. 10 of 1971) before the Sessions Judge, Tellicherry, who dismissed the revision and refused to refer the matter to the High Court, upholding the discharge. The present revisional petition to the High Court challenges those orders.

Legal Issues Presented

Whether the statements in the registered notice (Ext. P4), when read as a whole, constitute words which are prima facie defamatory under Section 499/500 IPC such that the accused should not have been discharged without framing a charge.
Whether the portion of Ext. P4 alleging that the complainant was a habitual defaulter in paying rent is defamatory and, if so, whether the complainant's admissions in preliminary proceedings negate the need to frame a charge on that ground.
Whether the revisional jurisdiction of the High Court should be exercised to interfere with the Magistrate's order of discharge given the manner in which the lower courts interpreted Ext. P4.

Arguments of the Parties

Petitioner's Arguments

Ext. P4 must be read as a whole; isolated words or phrases should not be construed detached from context. The overall tenor of the notice indicates an intention to draw a distinction between the complainant and another son of Achuthan, thereby implying illegitimacy of the complainant.
The particular Malayalam expression, when read in juxtaposition with the rest of Ext. P4, carries a vulgar import implying the complainant was not born of Achuthan's legal wife (i.e., illegitimate), which is per se defamatory and requires no proof of actual damage.
When words are ambiguous between a vulgar and a technical/legal meaning, the vulgar meaning should be adopted for prima facie consideration and the accused should then be required at trial to prove they intended a different (technical) meaning (reliance on Gour's Penal Code principle).
The Courts below erred in isolating the contested word and relying on dictionary meanings rather than considering the notice as a whole; therefore the discharge was improper and should be set aside for at least the second accused.
Regarding the allegation of habitual default in paying rent, the petitioner contended that the accused cannot successfully invoke exceptions under Section 499 IPC at the pre-charge stage; framing of charge should not be precluded by admissions elicited in cross-examination before charge is framed.

Respondents' Arguments

The respondents' counsel relied on dictionary meanings (multiple Malayalam and English dictionaries, and a Ramayana passage) to argue that the contested word connotes only an "unfortunate woman" or an "ugly woman" or "a woman not loved by her husband," which do not carry defamatory meaning as used in Ext. P4.
On the allegation of habitual default in paying rent, respondents pointed to an admission by PW1 in cross-examination that he had defaulted in paying rent (and that rent-control eviction petitions had been filed), arguing that this admission substantiates the truth of that portion of Ext. P4.
Respondents relied on established limits to revisional jurisdiction — interference with discharge orders is warranted only in cases of perversity or perfunctory disposal — to defend the lower courts' decisions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
D.N. Sen v. R.K. Bhadra (AIR 1970 Calcutta 216)	Scope of the definition of "defamation"; the classical definition quoted (via Scott v. Sampson) describing defamation as a "false statement about a man to his discredit" and the proposition that whether a publication is defamatory is a question of fact requiring full trial.	The court relied on and accepted the principle that whether the impugned publication is defamatory is ultimately a question of fact and that a full trial may be necessary; this supported the view that the matter required further enquiry rather than discharge without trial.
Scott v. Sampson ((1882) 8 Q.B.D. 491)	Classical definition of defamation: "false statement about a man to his discredit."	Quoted (via D.N. Sen) to emphasize that defamation is a mixed concept and that factual determination at trial may be necessary; used to justify that the impugned words might be defamatory when read in context.
C.C. Das v. Raghunath Singh (AIR 1959 Orissa 141)	When the alleged defamatory matter is contained in a document, the document should be read as a whole to find the main purport; avoid attaching undue importance to isolated passages.	The court expressly adopted this principle and faulted the lower courts for considering the contested word detached from the whole of Ext. P4; applied it to hold that Ext. P4 should be read as a whole and that the lower courts erred in their approach.
Kuttysankaran Nair Alias Chinnakuttan Nair v. Kumaran Nair & Others (1963 KLT 845)	Illustration that accusations describing a person as habitually defaulting in paying salaries can be defamatory.	Cited by the petitioner to support the contention that an allegation of habitual default (here, in paying rent) can be prima facie defamatory; court considered the authority while assessing the rent-default allegation.
Deepchand v. Sampathraj (AIR 1970 Mysore 34)	Example where calling a person a smuggler was held defamatory.	Relied upon by petitioner to show that serious imputations (like being a smuggler or habitually dishonest) are defamatory; used to buttress argument on the rent-default allegation.
Raghavan Pillai v. Gourikutty Amma & Another (1959 KLT 945)	Principle limiting revisional jurisdiction — interference against discharge is called for only when the order is perverse or perfunctory.	Respondents cited this authority; the court acknowledged the principle but distinguished the present facts and held that revisional interference was justified because the courts below had erred in their approach to Ext. P4.
Varkey George v. Vasu Pillai (1963 KLT 538)	Another authority stating the limited scope of revisional jurisdiction in cases of discharge.	Cited by respondents; the High Court agreed with the principle generally but concluded that the present case warranted intervention because of defects in the lower courts' reasoning regarding Ext. P4.

Court's Reasoning and Analysis

The Court undertook a close textual and contextual analysis of the impugned registered reply (Ext. P4) and the manner in which the lower courts interpreted it:

The Court rehearsed the factual matrix: the parties lived in different portions of the same house, electrical meter in the complainant's father's name, a dispute over payment of charges, and consequent registered notices (Ext. P4) and reply forming the basis of the complaint.
The Court reviewed the Magistrate's approach: the Magistrate had discharged the accused primarily on the ground that the contested Malayalam word, when translated via dictionaries, meant an "unfortunate woman" or similar non-defamatory senses; the Magistrate did not decide whether the allegation of habitual default in paying rent was defamatory.
The Court examined the dictionary entries and literary citation placed before it by both sides and emphasized that dictionary meanings alone are not decisive where a document must be read as a whole to ascertain intention and meaning.
Relying on C.C. Das v. Raghunath Singh, the Court reiterated the controlling principle that, when alleged defamatory matter is contained in a document, the document must be read as a whole to discover its main purport; isolated passages should not be given undue weight.
Applying that principle to Ext. P4, the Court found that the latter portion of the notice — where a distinction is drawn between the complainant and another son of Achuthan (Madanamohanan) — places the contested expression in a context that prima facie suggests an intention to indicate illegitimacy. Thus the Court concluded the lower courts erred by considering the contested word in isolation.
The Court referred to the statement in Gour's Penal Code that where an expression admits both a vulgar and a technical meaning, the vulgar import should be taken prima facie, and the maker of the statement should be called upon to prove that a technical meaning was intended. Applying this, the Court held that Ext. P4 could legitimately bear a vulgar import implying illegitimacy, and therefore the accused should have been subjected to trial to explain their intended meaning.
On the separate allegation that the notice described the complainant as a habitual defaulter in paying rent, the Court considered the evidence: PW1 (the complainant) had admitted in cross-examination before framing of charge that he had defaulted in paying rent and that eviction petitions were filed. The Court observed that such admissions meant that, to the extent of that allegation, the averment in Ext. P4 was justified; therefore the complainant was not entitled to demand framing of a charge on that ground.
The Court addressed the scope of revisional jurisdiction. Although agreeing with authorities that revision against discharge is limited and interference is appropriate only for perverse or perfunctory orders, the Court held that the lower courts' erroneous approach to Ext. P4 — ignoring material parts of the notice and treating a passage in isolation — rendered their orders defective and justified interference by revision.
On balances of responsibility as to the two accused, the Court found that a prima facie case was not made out against the first accused but that the discharge order as to the second accused (who was the specific subject of the relevant portion of Ext. P4) could not be sustained without further enquiry.

Holding and Implications

Holding: The High Court set aside the order of discharge passed by the Additional First Class Magistrate, Tellicherry, in C.C. No. 61 of 1970 so far as it related to the second accused, and remanded the case for further enquiry in accordance with law.

Implications:

The Court concluded that Ext. P4, when read as a whole, prima facie suggests that the complainant was being portrayed as not the legitimate son of Achuthan; that characterisation can be per se defamatory and therefore required further enquiry rather than immediate discharge.
The allegation in Ext. P4 that the complainant was a habitual defaulter in paying rent was, to an extent, substantiated by the complainant's own admission in cross-examination; therefore the complainant was not entitled to have a charge framed on that ground alone.
The Court emphasized the procedural principle that where allegedly defamatory words are ambiguous between a vulgar and technical meaning, the vulgar meaning should be taken prima facie and it is for the maker to prove a non-vulgar meaning at trial; this supported remanding for fuller investigation rather than disposing by discharge.
The decision remedies a defect in the lower courts' approach (reading an isolated word apart from its context) and clarifies that revisional jurisdiction may be exercised where such a legal error leads to an improper discharge; however, the Court did not purport to lay down a new, broad precedent beyond applying established principles (reading documents as a whole, applying authorities cited) to the facts of this case.
Practical outcome: the second accused will face further proceedings; there was no prima facie case against the first accused on the evidence before the Court.

Remand: The matter was remanded for further enquiry in accordance with law.

Show all summary ...

1. The complainant in C.C No. 61 of 1970 on the file of the Additional First Class Magistrate, Tellicherry, is the petitioner before me. A complaint was filed under S. 500 I.P.C alleging that the respondents in a registered notice sent through their lawyer referred to the complainant as and also that he is a constant defaulter in paying rent. The learned Magistrate discharged the accused on the ground that no offence was made out. He found that the expression only indicated that he is the son of an unfortunate woman and therefore there was nothing defamatory in that statement. No finding was entered by the learned Magistrate on the second ground, namely, whether the reference in the notice that the complainant was a constant dafaulter in paying rent constituted defamation. Aggrieved by the order of discharge, the complainant took the matter before the Sessions Judge, Tellicherry, in Criminal R.P No. 10 of 1971. The learned Sessions Judge dismissed the revision and refused to make a reference to this Court holding that the order of discharge was correct. It is against this that the present revision is filed.

2. The facts averred in the complaint relevant for purposes of this revision are that the complainant and the accused are residing separately in portions of the same house; the accused is residing in downstairs and the complainant is residing in the upstairs. The first accused is the sister of complainant's father, and the second accused is the son of the first accused. This building has only one electric metre. Since the registration of the metre stood in the name of the father of the complainant, he was paying electric charges. As the accused refused to pay their share of electric charges a registered notice was sent by the complainant to which he received a reply. It will be useful to extract the exact words in the registered notice. The relevant portion of the notice reads thus:

3. It is this statement in Ext. P4 that affords the foundation for this case. It is said that the notice was read out by his counsel in the presence of persons present there and this notice has lowered him in the estimate of the public. The statements aforementioned were made in. Ext. P4 deliberately to defame him and they are per se defamatory.

4. The complainant examined 3 witnesses including himself and produced 8 documents. The learned Magistrate discharged the accused even without questioning them.

5. The contention of the learned counsel for the petitioner is that the Courts below have not approached the case in the proper perspective and that there has been a miscarriage of justice on account of non-appreciation of the ingredients of the offence of defamation and also on account of the fact that Ext. P4 was not properly construed. The trial Magistrate found that the statements in Ext. P-4 will not constitute defamation. He discussed the various meanings given to the word in several dictionaries which were brought to his notice. I am giving below the various meanings given to the word in the dictionaries brought to my notice.

6. In the Milayalam—English dictionary by Rev. H. Gundert, at page 487, the word is translated as ‘an unfortunate woman’. In the Sanskrit-Malayalam dictionary by Kanipayyoor Sankaran Namboodiripad, the word is translated to mean In the Malayalam—English—Hindi dictionary published by Sreerama Vilasam Press and Publications (P.) Ltd., the meanings given to the word are In the dictionary of High and Colloquial Malayalam—English by Rev. B. Bailey, the word is translated as ‘a wife not loved or liked by her husband, ugly woman’. In the Sabdatharavali by Sreekanteswaram G. Padmanabha Pillai at page 1058, the word is said to mean A passage from the epic “Ramayana” was also brought to my notice in which Manthara addresses Kaikeyi as Here, Kaikeyi the affectionate wife of Dasaratha is referred to as From these translations it was contended by the learned counsel for the respondents that the only connotation for the word is either an unfortunate woman or an ugly woman or a woman who did not enjoy the love of her husband. These meanings, according to respondents' counsel, do not spell out anything defamatory. It was this approach that both the trial Court and the learned Sessions Judge made to the facts of the case.

7. The learned counsel for the petitioner forcefully argued that Ext. P4 document has to be taken as a whole and the proper meaning of these expressions has to be appreciated against the background of the tenor of the notice read as a whole. He invited my attention to the latter portion in Ext. P4 which reads as follows:—

8. This statement, according to counsel for the petitioner, clearly brings out the intention of the notice, that the accused or whoever was responsible for the notice made a clear distinction between the complainant and Achutban's other son by name Madanamohanan. The expression that Madanamobanan is the son of the legal wife of Achuthan and immediately in juxtaposition to that expression would clearly indicate that the notice intended to make out that the complainant was not the son of Achuthan by a legal wife. Read thus, according to the learned counsel for the petitioner, the expression gains its real import. In this context, the learned counsel for the petitioner analysed the word and submitted that the word means bad, and the word means the female organ. He brought to my notice the meaning given to the word in the Malayalam—English dictionary by Rev. H. Gundert at page 693. There the word is translated as ‘pudendammul; perinaenm’. In the Malayalam dictionary by Sir Williams, at page 641, the word ‘pudendum’ is referred to in the case of women In the Shorter Oxford English Dictionary, at page 1615, the meaning of the ‘pudendum’ is given as the privy parts; the external genital organ. In the Malayalam—English dictionary of Gundert at page 693, the word ‘pudendum’ is translated also as good fortune, love. Taken together, it is absolutely clear, according to him, that the real intention of the accused was to show that the complainant was the illegitimate child of Achuthan. If this intention is made out, then the statements in Ext. P4 are per se defamatory. If that be so, then he need not prove any damage to his reputation and it was for the accused to prove in a full-fledged trial whether his case comes within one or other Exceptions in S. 499 I.P.C

9. The learned counsel for the petitioner brought to my notice the decision reported in D.N Sen v. R.K Bhadra, (AIR. 1970 Calcutta 216). In that case, the scope of the definition of the term ‘defamation’ was considered. The relevant passage necessary for this case is as follows:

“The classical definition of the term however has been given by Mr. Justice Cave in the case of Scott v. Sampson, ((1882) 8 Q.B.D 491) as a “false statement about a man to his discredit”…………The concept of defamation is indeed a mixed concept partly subjective and partly objective………………………Upon ultimate analysis however, whether the impugned publication is defamatory or not is a question of fact and the same must abide a full fledged trial.”

10. In C.C Das v. Raghunath Singh, (AIR. 1959 Orissa 141) where some passage in a petition is alleged to be defamatory, it was held that the document should be read as a whole with a view to find out the main purport, and too much importance should not be attached to a few isolated passages here and there. This principle is pressed into service by the learned counsel for the petitioner to substantiate his contention that in every case where the impugned matter is contained in a document, it is necessary to take the document as a whole. I am in respectful agreement with the principles laid down in those cases. In cases of defamation where defamatory statements are contained in written matter, it will not be proper or fair to extract a particular portion from the document and try to understand its meaning divorced from the context of the entire written matter. The objected portion of the written matter will gain added significance and disclose the real intention of the maker of that statement only when the entire subject-matter is read and the intention clearly made out from the whole subject-matter.

11. On a reading of the reply notice Ext. P4, with specific reference to the latter portion where a distinction is made between the complainant and the other son of Achuthan, I am inclined to think that the Courts below erred in holding that an offence has not been made out. The findings of the Courts below are defective in the sense that this aspect of the case has not been properly discussed or appreciated by them. The Courts proceeded to find the meaning of the word detached from the other portion of the notice, which alone reflects the real intention of the notice. It is not permissible in law in cases like this to take one portion alone of the document which is the subject-matter under attack and consider it without reference to the whole matter which alone would help the Court to appreciate the real intention of the parties.

12. The learned counsel for the petitioner brought to my notice the passages from Gour's Penal Code. In the 1962 Edition, IV volume, the learned author states that in cases of defamation where the expression which affords the subject-matter of defamation is ambiguous and is possible for a vulgar import and a technical import, the Court has to take the vulgar import and not the technical or legal sense of the expression. After taking this vulgar import, it should make the person who made it responsible to prove that what was intended was not the vulgar import, but the technical or legal import. In this case also, the expression can have different meanings. If Ext. P-4 is taken as a whole, we get a vulgar import for the expression. If that be so, the accused should have been brought to trial and asked to discharge their liability to substantiate their case that they meant something other than the vulgar import for the expression.

13. In this connection, the learned counsel for the petitioner brought to my notice the passage from “Ramayana”, which has already been quoted above. Hera, Kaikeyi is referred as It is contended that the word here meant only ‘an unfortunate woman’. It is useful to remember the context in] which Kaikeyi is addressed as Sree Rama was to be the king and her son, Bharata is not to be rewarded at all in any manner. It was in this context that she, the mother of Bharata, is referred as an unfortunate woman. This in fact highlights the distinction that I am seeking to indicate in this decision. It is the context that is important and not the actual words that are used. Tue learned Magistrate, in my opinion, should have at least questioned the accused giving them an opportunity to explain what they really meant by the expression used in Ext. P4. Even this has not been done. The opinion of the learned Magistrate cannot be a substitute for the real intention of the maker of the statement as disclosed in Ext. P4. The learned Sessions Judge also fell into the same error. I therefore hold that the statement in Ext. P4 taken as a whole would prima facie show that the accused intended to defame the complainant. Ext. P4 suggests that the petitioner is not the legitimate son of Achuthan. This can be per se defamatory.

14. The next point urged by the learned counsel for the petitioner is that the statement that he is a person who habitually defaults in paying rent and he had earned a notoriety in this respect is also defamatory. He brought to my notice the decisions reported in Kuttysankaran Nair Alias Chinnakuttan Nair…* v. Kumaran Nair & Others… (1963 KLT. 845) and Deepchand v. Sampathraj (AIR. 1970 Mysore 34). In the earlier case a Manager against whom an accusation was made that he habitually defaults in paying salaries to the teachers was held defamatory. In the latter case, a person was called a smuggler. This was held to be defamatory. On the strength of these two decisions, it is contended by the learned counsel for the petitioner that the reference in the notice Est. P4 about the complainant having gained notoriety as a habitual defaulter in paying rent should be taken as prima facie defamatory for framing charges. The learned counsel for the respondents contended that Pw 1 when he was cross-examined admitted that he had defaulted in paying rent control petitions against him for eviction on the ground that he had defaulted to pay rent and therefore this portion of Ext. P4 was substantiated by the admission of complainant himself. To this, the learned counsel for the petitioner Shri T. Karunakaran Nambiar raised an intelligent and clever argument. According to him, the accused can put forward his plea under one or the other Exceptions under S. 499 I.P.C only at a full-fledged trial and this cannot be done before framing charge. He contended that a reading of Ss. 208, 252 and 256 of the Code of Criminal Procedure would indicate that an accused has a right to cross-examine the prosecution witness only after framing of the charge. It is only by the indulgence shown by the Court that he is enabled to cross-examine the prosecution witnesses before framing charge. This permission by the Court cannot be used to deny to the complainant what he in law is entitled to. That is proving a prima facie case before charge is framed. Therefore, the admission by Pw. 1 in cross-examination before framing charge of having defaulted to pay rent sometimes cannot be taken as a circumstance to substantiate the allegation by justification by truth. I am not impressed by this argument. Anyhow, Pw. 1 has admitted that he is a defaulter in paying rent and to that extent the averment in Ext. P4 is justified. I therefore find that the complainant is not entitled to say that a charge should have been framed on this ground also. However, from the evidence on record I do not find that the complainant has made out a prima facie case against the 1st accused.

15. It was contended before me that the revisional jurisdiction of this Court is very limited and therefore in revisions against discharge interference is called for only when the order sought to be revised is perverse or perfunctory. In support of this contention, the decision reported in Raghavan Pillai… v. Gourikutty Amma Another… (1959 KLT. 945) and Varkey George v. Vasu Pillai (1963 KLT. 538) were brought to my notice. While I am in respectful agreement with the principles laid down in these cases, I hold that the case on hand is different. There is an erroneous approach by the courts below so far as Ext. P4 is concerned. The material parts of Ext. p4 have been ignored by the Courts below and the order suffers from a serious infirmity on this account. I therefore hold that the revisional jurisdiction of this Court is available in a case like this. I therefore set aside the order of discharge passed by the learned Additional First Class Magistrate, Tellicherry, in C.C No. 61 of 1970 against the 2nd accused and the case is sent back for further enquiry into the complaint in accordance with law.

16. Remanded.