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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • George K.Nair
  • C.M.Raman Pillai
  • M.U.Issac
  • P.T.George
  • P.G.Parameswara Panicker
  • C.K.Sivasankara Panicker
  • N.Sudhakaran
Judges
  • Mr. Justice T.C. Raghavan
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • George K.Nair
  • C.M.Raman Pillai
  • M.U.Issac
  • P.T.George
  • P.G.Parameswara Panicker
  • C.K.Sivasankara Panicker
  • N.Sudhakaran
Judges
  • Mr. Justice T.C. Raghavan
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

Three criminal prosecutions were instituted by the respondent, an advocate practising at Kottayam, against the editors, printers and publishers of three newspapers for alleged defamation under sections 500 and 501 of the Indian Penal Code (IPC). The magistrates who tried those prosecutions recorded the full evidence contemplated by section 252 of the Code of Criminal Procedure (CrPC), heard cross-examination and received documents, and concluded that the published items were per se defamatory but fell within the fourth exception to section 499 IPC; accordingly the magistrates discharged the accused under section 253(1) CrPC.

In revision, the learned Sessions Judge of Kottayam reversed the magistrates' orders of discharge and directed further enquiry. The present criminal revision petitions challenge the Sessions Judge's order. Because the publications and legal questions were substantially the same, the three matters were heard together.

The background to the publications is that a client complained to the Bar Council alleging that the respondent used signed blank papers of the client to create a deed of assignment in favour of his wife in respect of a decree held in the client's name, and thereafter appeared in execution proceedings on behalf of both the assignor and the assignee. The High Court directed the District Judge of Kottayam to enquire and submit a report. The District Judge's report did not establish that the respondent had used signed papers to manufacture the deed of assignment, but did conclude that obtaining assignment of the decree in his wife's name amounted to professional misconduct. Before a full bench of this Court the respondent made a statement accepting that his conduct was not in consonance with professional ethics and expressed regret; the full bench accepted the statement, expressed displeasure, and warned him. Newspaper reports of those proceedings prompted the defamation prosecutions.

Legal Issues Presented

  1. Whether the Sessions Judge was correct in reversing the magistrates' orders of discharge and directing further enquiry (i.e., whether the magistrates erred in discharging the accused under s. 253(1) CrPC).
  2. Whether, in the procedural circumstances of these cases (where the entire evidence under s. 252 CrPC has been recorded), a magistrate may consider the applicability of exceptions to the offence under s. 499 IPC prior to framing of formal charges (in particular, whether the fourth exception to s. 499 IPC may be applied at the stage of discharge under s. 253(1) CrPC).
  3. On the merits, whether the newspaper reports were "substantially true" such that the publications fell within the fourth exception to s. 499 IPC and justified the magistrates' orders of discharge.

Arguments of the Parties

Accused / Newspapers (Defence) — as reflected in the record

  • The magistrates recorded the entire evidence envisaged by s. 252 CrPC, cross‑examined prosecution witnesses and marked documents for the defence through prosecution witnesses; on the basis of the totality of that evidence they concluded the publications, though per se defamatory, fell within the fourth exception to s. 499 IPC and discharged the accused under s. 253(1) CrPC.
  • The defence maintained that the newspaper reports were substantially true accounts of the proceedings before the full bench and the district judge's enquiry and report.

Respondent (complainant / advocate)

  • Counsel for the respondent argued that, when read in full, the newspaper reports left the impression that the respondent had committed misappropriation, had been found guilty of that by the District Judge, and had admitted guilt before the full bench with the latter accepting his apology — an impression which the respondent contended was defamatory and inaccurate in material particulars.
  • Separately, the respondent had earlier filed a statement before the full bench admitting that his conduct was not consonant with professional ethics and seeking leniency; the full bench accepted that statement but expressed displeasure and warned him.

State / Public Prosecutor

  • The State Prosecutor appeared in the revision and candidly admitted difficulty in supporting the line of reasoning adopted by the learned Sessions Judge (i.e., the contention that magistrates cannot consider exceptions prior to framing of charges where the entire evidence under s. 252 has been recorded).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Bala Prasad Dhansukh v. State of Madhya Pradesh, AIR 1961 (Mad.) Pra. 241 Cited for the proposition that the evidential burden under s. 105 of the Evidence Act is discharged if the accused's supporting evidence has been introduced and considered by the court. The Court relied on this line of authority to show that evidence relevant to exceptions may be introduced by various routes (including cross‑examination, accused's statement or defence evidence) and, once introduced and considered, the accused may properly rely on such exceptions without waiting for formal charge framing.
Babu Lal v. State, AIR 1960 (All.) 223 Applied to illustrate the operation of s. 105 Evidence Act: the initial/evidential burden is on the accused but may be discharged once evidence is introduced and considered. The Court treated this authority as supporting the proposition that magistrates may consider exceptions once relevant evidence is on the record, and need not defer such consideration until after charges are framed.
Parbhoo v. Emperor, AIR 1941 (All.) 402 (F.B.) Cited as another authority addressing the evidential burden under s. 105 and the circumstances in which an accused may rely on exceptions once supporting material is on record. The Court used this precedent as part of the body of authority showing that the magistrate's consideration of exceptions can legitimately follow the recording of evidence under s. 252 CrPC.
Chaitan Charan Das v. Raghunath Singh, AIR 1959 (Orissa) 141 Directly concerned an order of discharge under s. 253(2) CrPC in a prosecution under s. 500 IPC; it addressed the contention that charges must be framed before applying exceptions, and the Division Bench rejected that contention. The Court expressly relied on this decision to support its conclusion that the Sessions Judge erred in holding that magistrates must frame charges before considering the applicability of exceptions to s. 499 IPC.

Court's Reasoning and Analysis

The Court's analysis proceeded in two principal strands: (A) questions of procedure and the proper interpretation of provisions of the Criminal Procedure Code and the Evidence Act; and (B) the merits — whether the newspaper reports were substantially true.

A. Procedural and evidentiary analysis

The Sessions Judge had held that the magistrates were not entitled, at the stage of s. 253(1) CrPC discharge, to consider rebuttal material or the applicability of exceptions to s. 499 IPC until after framing of charges, relying on s. 105 of the Evidence Act (placing the burden on the accused to prove facts bringing the case within exceptions) and construing the stage under s. 254 CrPC as one of presumption rather than proof.

The Court evaluated these contentions against the text and scheme of the CrPC. It noted that s. 253(1) CrPC requires the magistrate, after taking all the evidence referred to in s. 252 and making such examination of the accused as he thinks necessary, to discharge the accused if no case which, if unrebutted, would warrant a conviction has been made out. The Court held that this provision requires the magistrate to consider the entirety of the evidence recorded (including statements of the accused and defence material elicited by cross‑examination or produced through prosecution witnesses) when deciding whether a case has been made out.

The Court rejected the Sessions Judge's compartmentalised approach (i.e., considering only the prosecution part of the record before framing charges). That approach would require the magistrate to ignore defence material already on the record and postpone consideration of exceptions until after framing charges, which the Court found inconsistent with the scheme of the CrPC and with the plain language of s. 253(1).

Addressing the Sessions Judge's reliance on s. 254 CrPC (regarding presumption), the Court observed that any presumption must be based on the entire evidence so far recorded and not on a selective portion of the evidence.

On the relationship with s. 105 Evidence Act, the Court explained that the initial or evidential burden is on the accused to introduce evidence of circumstances bringing the case within an exception; however, such evidence may be introduced by the prosecution, elicited in cross‑examination, given by the accused, or produced as defence evidence. If such evidence has been introduced and, upon consideration, the court is satisfied that the accused may rely on an exception, the accused's burden under s. 105 is discharged. The Court relied on existing authorities to reinforce this legal proposition and concluded that the Sessions Judge erred in holding that framing of charges must precede consideration of exceptions where the entire evidence is already on record.

B. Merits — whether the newspaper reports were substantially true

The Court next assessed whether the magistrates were justified on the merits in holding the newspaper reports to be substantially true and therefore falling within the fourth exception to s. 499 IPC.

The respondent submitted that, taken as a whole, the reports conveyed an impression that he had committed misappropriation, had been found guilty of misappropriation by the District Judge, and had admitted guilt before the full bench. The Court acknowledged that a reader could form such an impression from the reports. However, the Court found that the publications accurately stated the core facts: (i) that the client complained to the Bar Council alleging misappropriation and professional misconduct, (ii) that the District Judge of Kottayam was directed to enquire and report, and (iii) that the District Judge's report found the respondent guilty (of professional misconduct) and that the respondent, before the full bench, acknowledged his conduct and sought leniency. The Court accepted that the reports were "substantially true" even though they did not expressly distinguish between a finding of misappropriation versus professional misconduct.

The Court also reiterated the established principle that an order of discharge will be interfered with in revision only if it is perverse, illegal or has resulted in a miscarriage of justice. Finding none of those defects, the Court concluded that there was no justification for setting aside the magistrates' orders on the merits.

Holding and Implications

Result: The criminal revision petitions were allowed; the orders of the learned Sessions Judge were set aside; and the orders of discharge passed by the magistrates were restored. The accused persons were discharged.

Implications:

  • The direct effect is that the magistrates' discharges under s. 253(1) CrPC stand, and the accused (the editors/printers/publishers) are discharged of the defamation prosecutions referred to in the opinion.
  • Procedurally, the Court clarified that where the entire evidence contemplated by s. 252 CrPC has been recorded, a magistrate may consider the applicability of exceptions to an offence (including the fourth exception to s. 499 IPC) at the s. 253(1) discharge stage; the magistrate is entitled to take into account defence material elicited by cross‑examination, statements of the accused, and other evidence already placed on the record, and need not defer consideration of exceptions until after formal framing of charges.
  • The opinion applies existing authorities concerning the operation of s. 105 Evidence Act and the discharge procedure under the CrPC; the Court relied on prior decisions to support its interpretation rather than purporting to lay down a novel rule beyond the application of that existing law.

This summary is strictly based on the text of the provided opinion and does not add information beyond what is contained therein.

Show full summary ...

    Varkey George And Others v. K.P. Vasu Pillai

    1. These criminal revision petitions arise out of three prosecutions started by the respondent, Who is an advocate practising at kottayam, Against the editors and printers and publishers of three newspapers for defamation under s. 500 and 501 of the penal code. The magistrates who tried these cases discharged the accused persons under s. 253 (l) of the code of criminal procedure; but in revision the learned sessions judge of kottayam reversed the orders of discharge and directed further enquiry. The question for consideration in these cases is whether that order is correct.

    2. Since the publications involved in these cases are substantially the same and since the questions arising for consideration are also the same, These cases may be disposed of together.

    3. There was a complaint by a client of the respondent before the bar council that the respondent used some blank papers signed and given by the former and created a deed of assignment, In favour of his wife, Of a decree obtained in the name of the client, And thereafter he started proceedings in execution of the decree, Appearing both for the assignor and the assignee. The high court directed the district judge

    of kottayam to enquire into the matter and submit a report. The district judge conducted an enquiry and submitted a report, Wherein he stated that the case of the client, That the respondent took signed papers from her and utilised them for making up the deed of assignment in the name of his wife, Was not established; but by obtaining the assignment of a decree of a client of his in the name of his own wife, The respondent was guilty of professional misconduct.

    4. After the report the matter came up before a full bench of this court, When the respondent filed a statement in court submitting that he realised fully that what he did was not in consonance with the traditions and ethics of the profession and that he regretted for that. He also prayed that he might be dealt with leniently. The full bench accepted that statement, But expressed their displeasure and warned the respondent against such conduct in the future. The three newspapers published a news item about the proceedings before the full bench; and the respondent complained in the present proceedings that the news item was defamatory.

    5. The entire evidence contemplated by s. 252 of the code of criminal procedure was recorded in the cases by the magistrates, The prosecution witnesses were cross - examined in detail and some documents were also produced and marked for the defence through the prosecution witnesses. After all that, The magistrates considered the whole evidence in the cases and recorded findings that the publications alleged were per se defamatory, But since they came within the fourth exception to s. 499 of the penal code, The accused persons were entitled to be discharged; and in that view they discharged the accused persons under s. 253 (1) of the procedure code.

    6. The cases were taken up in revision before the learned sessions judge; and he was of opinion that the question of rebuttal of the prosecution evidence and the finding that the fourth exception applied were premature in the cases. According to him, The magistrates should have considered the applicability, Of any of the exceptions to s. 499 only after charges were framed and not before. He reasoned further that under s. 105 of the evidence act, The burden of proving the existence of circumstances bringing the cases within any of the general exceptions of the penal code or within any special provision contained in any other part of the same code was upon the accused persons, And therefore, Until charges were framed and the accused persons pleaded one of the exceptions, The court was not competent to consider the applicability of the exceptions. In the words of the learned sessions judge himself, "the question at this stage is merely one of presumption and not of proof". That is the line of reasoning that found favour with the learned sessions judge; and the question for consideration is whether that reasoning is correct.

    7. Notice was issued in these cases to the state prosecutor and he has also appeared before me.

    8. S. 253 of the code of criminal procedure recites that if the magistrate upon taking all the evidence referred to in s. 252, And making such examination of the accused as he thinks necessary, Finds that no case against the accused has been made out, Which, If unrebutted, Would warrant a conviction, Shall discharge him. According to the learned sessions judge, The magistrate, At this stage, Is entitled only to consider the prosecution case without any rebuttal. But it is apparent that under s. 253 (1) the entire evidence recorded, Including the statement of the accused, If any, Has to be considered by the magistrate. There is no warrant for holding that the magistrate should not consider the circumstances and the case of the accused person, Brought out in cross - examination or by the other evidence for the defence produced and marked through the prosecution witnesses. If the magistrate is bound to frame a charge, As the learned sessions judge thinks, In a case like the cases before me, Where the entire evidence has already been recorded, Without considering the whole evidence before him, But considering only the prosecution part of it, Then the whole evidence has to be considered by the magistrate, After the framing of the charges, For the application of one of the exceptions and for the acquittal of the accused. The scheme of the procedure code does not appear to be so; and there is no warrant for thinking that there is such a water tight compartmentalisation of the prosecution evidence for making out a prima facie case and the defence evidence in rebuttal. I may also mention at this stage that the learned state prosecutor has candidly admitted that he finds it difficult to support the line of reasoning adopted by the learned sessions judge.

    9. S. 254, Criminal procedure code, Is also referred to by the learned sessions judge. He says that what is contemplated by s. 254 is only a presumption that the accused has committed an offence and not the proof thereof. The presumption under s. 254 is a legal presumption warranted by the evidence on record, And not a presumption that the accused has committed the offence on the basis of a part alone of the evidence. The presumption must be based on the entire evidence so far recorded; and if such a presumption cannot be warranted by the evidence so far recorded, The magistrate will not be justified in drawing the presumption from the prosecution part of the evidence alone.

    10. It is well known that what s. 105 of the evidence act provides is that the court shall not presume the existence of facts, Which may bring a case within the exceptions; that is, The initial or evidential burden of introducing the evidence to establish any such circumstance is on the accused person. Such evidence may be introduced by the prosecution themselves, Or it may be introduced by the defence by cross - examination of the prosecution witnesses or by the statement of the accused or by defence evidence. If such evidence has been introduced in any of the aforesaid ways, And if, After consideration of that evidence, The court is of opinion that the accused person may rely on any of the exceptions, The burden of the accused under s. 105 is discharged (vide bala prasad dhansukh v. State of madhya pradesh air. 1961 mad. Pra. 241; babu lal v. State air. 1960 all. 223; parbhoo v. Emperor air. 1. 941. All. 402 f. B. And chaitan charan das v. Raghunath singh air. 1959 orissa 141). The last of these cases arose out of an order of discharge under s. 253 (2) of the code of criminal procedure in a prosecution under s. 500 of the penal code. In that case the same contention appears to have been raised, Viz., That the magistrate should have framed charges before he applied any of the exceptions to s. 499, And that argument was based on s. 105 of the evidence act. The division bench of the orissa high court repelled that contention. I am therefore of opinion that the learned sessions judge was in error in holding that the magistrates should have framed charges before they considered the applicability of the fourth exception to s. 499 of the penal code.

    11. The next question is whether on merits the magistrates were justified in their conclusion that the publications were substantially true reports of the proceedings of the full bench. The learned counsel of the respondent points out that by reading the entire reports one will be left with the impression that the respondent committed misappropriation, That he was found guilty of the same by the district judge, That he admitted his guilt before the full bench and that the full bench accepted his apology. It cannot be denied that it is possible to form such an impression by reading the newspaper reports. At the same time, T am not satisfied that the reports are not substantially true versions. The publications state that the client of the respondent complained to the bar council that the respondent misappropriated her moneys and that the district judge of kottayam was directed to conduct an enquiry and report on the matter. The publications then state that the district judge reported that the respondent was guilty, And before the full bench he acknowledged his guilt and prayed for leniency. These reports are substantially true, Though they do not clearly state that what the respondent was found guilty of was not misappropriation, But only professional misconduct. The complaint before the bar council was that the respondent committed professional misconduct by misappropriating the client's money and doing some other acts; and the subject of the enquiry by the district judge was also that. Therefore, When the newspaper reports stated that the respondent was found guilty by the district judge, It cannot be said that the statement was not substantially correct. It is also well established that an order of discharge can be interfered with in revision only if the order is perverse or illegal or has resulted in miscarriage of justice. I do not think that in these cases such perversity, Illegality or miscarriage of justice is established. I am therefore of opinion that the view expressed by the magistrates that the newspaper reports were substantially true is not liable to be interfered with in revision.

    12. In the result, The criminal revision petitions are allowed, The orders of the learned sessions judge are set aside and the orders of discharge passed by the magistrates are restored. The accused persons are discharged.

    allowed.

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    Comments

    Varkey George And Others v. K.P. Vasu Pillai
    (Jun 12, 1963)