M.G.RADHAKRISHNAN v. STATE OF KERALA

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of 2017 of the Judicial First Class Magistrate Court-I, Cherthala, the petitioners in Crl.M.C. 4053 of 2018 are the accused Nos. 9 and 10 therein, the petitioner in Crl.M.C. No. 1190 of 2018 is the 11^th accused therein, the petitioners in Crl.M.C. No. 1198 of 2018 are the accused Nos. 15 to 17 therein, and the petitioners in Crl.M.C. No. 766 of 2017 are the accused Nos. 18 to 20 in the said case. The first accused in S.T. No. 695 of 2017 of the Judicial First Class Magistrate Court-I, Cherthala, is also the first accused in the other two cases. The different petitioners include some media persons and reporters of print and electronic media, the persons in administration of the media establishments, and also an advocate of the High Court Bar Association. In all the cases, the said advocate is the first accused. All these prosecutions were brought by the members of different Bar Associations. The complainant in C.C. No. 1871 of 2016 of the Judicial First Class Magistrate Court-I, Punalur, is a member of the Punalur Bar Association, the complainant in C.C.

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No. 1840 of 2016 of the Judicial First Class Magistrate Court-III, Neyyattinkara, is the President of the Neyyattinkara Bar Association, and the complainant in S.T. No. 695 of 2017 of the Judicial First Class Magistrate Court-I, Cherthala, is a Member of the Cherthala Bar Association.

2. The offence alleged in all the cases is defamation, punishable under Section 500 of the Indian Penal Code. The issue is concerning a statement of criticism made by the first accused (advocate) in the wake of a tussle between some members of the High Court Bar Association, and some media persons in connection with a row over the news spread and published about a member of the High Court Bar Association in connection with a pending police case and court proceedings against him. As part of the row and tussle, some lawyers of the High Court Bar Association, and also some media persons turned violent near the court premises, and this led to an unpleasant and inexcusable open fight between the two groups. This unpleasant situation which cannot at all be

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expected in a set up where the two groups are expected to honour each other, led to severe criticism from different corners, including some members of the High Court Bar Association. The first accused, who is also a member of the High Court Bar Association made a criticism by way of an open statement through media against the Advocates, and specifically against the members of the High Court Bar Association who turned violent near the High Court premises. During such criticism of intolerance on the part of the Advocates, he even compared them to stray dogs. This comparison in the statements led to the present complaints against the Advocate, and along with him, some media persons are also being prosecuted. The allegation in the complaints is that the said statement made by the Advocate has seriously affected the reputation of the lawyer community as a whole, and the members of the High Court Bar Association particularly, and that such a statement has lowered them down very much in the estimation of the general public. On such allegations, different

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Advocates made complaints before the three courts, and after necessary enquiry, cognizance was taken at the three courts under Section 500 IPC against the advocate and others. Those prosecutions are sought to be quashed under Section 482 of the Code of Criminal Procedure.

3. The two important questions for consideration in these matters are (a) whether the Advocates of the High Court Bar Association or Advocates generally to whom the 1^st accused has referred in his statement of criticism will constitute a "class" as meant under the law, and

(b) whether the statement allegedly made by the Advocate can be said to be defamatory in any sense. The 1^st issue, as to whether lawyers collectively can be said to be an identifiable class came up for consideration before this Court in Malayala Manorama Co.Ltd V. Deepak [2018 (1) KLT 928], and this court answered the point against the lawyer community. It appears that nobody has challenged the said decision of the learned Single Judge.

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4. Defamation is defined under Section 499 of the I.P.C as follows:

"499. Defamation: Whoever, by words either spoken or intended to be read, or by signs, or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person."

5. Explanation 2 to Section 499 I.P.C is that it may amount to defamation to make an imputation concerning a company or an association or collection of persons. But to come under the explanation 2 to Section 499 I.P.C, the class of persons must be a distinct and identifiable class with its own identity, unity, characteristics, ways and objectives. A mere collection of persons cannot be said to be a class of persons as meant under the law. A mere collection of individuals may have different characters within it, and it

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may consist of different elements. A class of persons consisting of different elements of different character and culture, or different ways or means or object cannot be said to be a class of persons as meant by explanation 2 to Section 499 IPC. Here the class is the class of Advocates meant and referred to by the maker of the statement. Advocates in Kerala have their own collective body under the Bar Council, and at different court centres we have different collection of Advocates forming Bar Associations. All the Bar Associations consist of only Advocates having commonness in practice everywhere. Anyway, the legal issue stands concluded by this Court, and that too in a case involving the very same statement made by the very same Advocate. So I need not make further probe into that aspect.

6. Now the short question is whether the alleged statement made by the 1^st accused can be said to be defamatory. To make it defamatory and punishable under Section 500 I.P.C, it must be a

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statement that will have the effect of harming the reputation of Advocates, or lowering them down in the estimation of the others. Any statement made or words spoken against a person with the object of lowering his dignity or credit or character will cause a prosecution under Section 500 I.P.C. [2015 (4) KLT SN 71 - Case No.86]. The stand of the Advocate is that it is a severe criticism made by him against the Advocate Community. What is required to constitute defamation under the law is a statement which contains imputations or allegations which will have the effect of lowering an individual or a class of persons down in the estimation of others. A statement of criticism against an individual or a class, however scathing or withering it is, will not by itself amount to defamatory statement. So also, an abusive statement that may cause humiliation or discomfort or annoyance to an individual or a class of persons will not amount to defamatory statement as defined under Section 499 I.P.C. In the instant cases, the subject of attack is a

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statement of criticism made by the 1^st accused against the lawyer community or specifically against the Advocates at large in Kerala. He made such statement in the wake of a fight between some lawyers of the Bar Association of the High Court and some media persons. Such fights happened later als,o after the unpardonable incident that happened near the premises of the High Court.

7. In deciding whether a statement against a class of persons is defamatory or not, it will assume importance whether the statement is from within or from outside. In this case, the statement is not from outside but from within. A class of persons, if at all identifiable with distinct characteristics and features will consist of different types of characters and elements. When a statement of criticism comes against such a class from within in the wake of any untoward conduct on the part of some members of the class, such a statement of criticism cannot be said to be defamatory. It might be that the statement made by

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the 1^st accused caused annoyance or humiliation in the mind of some Advocates. It might be that some Advocates cannot tolerate such a criticism. But the question is not whether the Advocates can tolerate the statements or whether the statements would humiliate or abuse them. Every statement that humiliates an individual or a class of persons, or every statement that causes some sort of intolerance or annoyance or discomfort to the members of a class or individuals cannot be said to be defamatory. Statements of criticism made in certain context, or in the context of some incidents that call for such criticism also cannot be said to be defamatory because criticism is always criticism. Any criticism made with such bona fide intention, by a member belonging to either of the groups involved in the fight that caused the criticism, cannot be said to be a defamatory statement. In this case, the grievance of the Advocates is that the 1^st accused compared the Advocates to stray dogs. He made such a criticism or statement in the wake of the violent

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tussle made by the Advocates and the media persons near the court premises. The profession of law is said to be a dignified and noble profession. The members of this profession cannot behave disorderly or violently in courts or court premises or even outside, whatever criticism or provocation comes from others. That is why probably the first accused made a scathing and cruel criticism against the Advocates. No doubt, the criticism or the statement made by him will evoke protest from Advocates. No doubt, it will cause humiliation and annoyance to the Advocates. But that alone is not sufficient for a prosecution under Section 500 IPC. It requires something more, that such criticism or statement has damaged the reputation of the Advocates or has lowered them down in the estimation of others. What matters for a prosecution under Section 500 I.P.C is not what the Advocates have felt from the statements against them, but what the others would feel about them on the basis of such statements. On an analysis of the statements allegedly made by the 1^st accused, I

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find that it was not probably meant to defame Advocates, but only as a severe criticism against the Bar of which he is a member.

8. I find that continuance of the prosecutions against the Advocate and others including media persons will be an abuse of legal process. When there is nothing per se defamatory to lead to a trial under the Code of Criminal Procedure, the High Court cannot allow continuance of the prosecution. If the 1^st accused has wounded the feelings of the Advocates, and if he has acted against the discipline of the body to which he belongs, of course, the Association can take necessary action against him. But that cannot be a ground to prosecute him under Section 500 IPC. The court's concern is whether the alleged statement will in any manner impair or damage, the fame and reputation of Advocates as a whole. I do not think that he had any mala fide intention, or any intention to defame anybody, or to damage the reputation of the Advocates as a whole or that of

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any individual Advocate. I find that the prosecution against the Advocate and others is liable to be quashed.

9. The learned senior counsel appearing for the complainant referred to a decision of the Hon'ble Supreme Court in Sahib Singh Mehra V. State of U.P. [(1965) 2 SCR 823] and also the decision of a learned Single Bench of this Court in Jacob Mathew and others V. State of Kerala & Another [2013) (3) ILR (Ker) 547]. Of course, as regards the proposition canvassed, there is no dispute. But the principle in the context of this case is covered by the decision of this Court cited supra in Malayala Manorama's case. Anyway, the crucial issue is whether the alleged statement is defamatory. When the court has found that the statement is not defamatory, it is quite immaterial whether the Advocates can claim to be a class of persons as meant under Section 499 IPC. In the result, all these petitions are allowed. Accordingly, the prosecution against the

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petitioners in CC 1871/2016 of the Judicial First Class Magistrate Court-I, Punalur, C.C 1840/2016 of the Judicial First Class Magistrate Court-III, Neyyattinkara and ST 695/2017 of the Judicial First Class Magistrate Court-I, Cherthala will stand quashed under Section 482 Cr.P.C. Sd/-

P.UBAID

ma /True copy/ P.S to Judge

JUDGE

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APPENDIX OF Crl.MC 84/2017 PETITIONER'S/S EXHIBITS:

ANNEXURE-A: TRUE COPY OF THE COMPLAINT IN CC NO. 1871/2016 OF FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRE'S COURT, PUNALUR

DATED 10.11.2016.

APPENDIX OF Crl.MC 139/2017 PETITIONER'S/S EXHIBITS:

ANNEXURE A CERTIFIED COPY OF THE COMPLAINT FILED AT

JFCM COURT -III AT NEYYATTINKARA-

NUMBERED AS CC 1840 OF 2016

ANNEXURE B CERTIFIED COPY OF THE SWORN STATEMENT

GIVEN BY THE COMPLAINANT

APPENDIX OF Crl.MC 220/2017 PETITIONER'S/S EXHIBITS:

ANNEXURE A- CERTIFIED COPY OF THE COMPLAINT FILED AT JFCM COURT-1 AT PUNALUR-NUMBERED AS

CC1871 OF 2016.

ANNEXURE B- CERTIFIED COPY OF THE SWORN STATEMENT

GIVEN BY THE COMPLAINANT.

APPENDIX OF Crl.MC 1190/2018 PETITIONER'S/S EXHIBITS:

ANNEXURE 1 TRUE COPY OF THE ANNE.1 COMPLAINT DATED

04-11-2016 LEADING TO ST NO.695 OF 2017 BEFORE THE JFCM-1 CHERTHALA

ANNEXURE II TRUE COPY OF THE DEPOSITION OF THE

COMPLAINANT BEFORE THE LEARNED JFCM-1,

CHERTHALA

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APPENDIX OF Crl.MC 1198/2018 PETITIONER'S/S EXHIBITS:

ANNEXURE A A CERTIFIED COPY OF THE COMPLAINT IN ST.

NO.695 OF 2017 ON THE FILE OF THE CHIEF

JUDICIAL MAGISTRATE COURT, CHERTHALA

ANNEXURE B A TRUE COPY OF THE INTERIM ORDER DATED

4/8/2017 IN CRL.M.C NO.5383/2017

APPENDIX OF Crl.MC 2846/2017

PETITIONER'S/S EXHIBITS:

ANNEXURE I A TRUE CERTIFIED COPY OF COMPLAINT IN CC

1871/16 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PUNALUR.

APPENDIX OF Crl.MC 4053/2018

PETITIONERS/S EXHIBITS:

ANNEXURE I TRUE COPY OF THE ANNE.I COMPLAINT DATED

04-11-2016 LEADING TO ST NO.695 OF 2017 BEFORE THE JFCM-I CHERTHALA.

ANNEXURE II TRUE COPY OF THE DEPOSITION OF THE

COMPLAINANT BEFORE THE LEARNED JFCM-1,

CHERTHALA.

ANNEXURE III TRUE COPY OF THE JUDGMENT OF THIS

HON'BLE COURT DATED 20-02-2018 IN

CRL.M.C.NO.5352 OF 2017.

APPENDIX OF Crl.MC 4128/2017 PETITIONER'S/S EXHIBITS:

ANNEXURE A TRUE COPY OF THE COMPLAINT IN S.T NO 695

OF 2017 ON THE FILE OF JUDICIAL FIRST

CLASS MAGISTRATE COURT-I,CHERTHALA

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APPENDIX OF Crl.MC 7667/2017 PETITIONER'S/S EXHIBITS:

ANNEXURE A A CERTIFIED COPY PF THE PRIVATE

COMPLAINT DATED 05.11.2016 FILED BY THE

RESPONDENT NO. 1.

APPENDIX OF Crl.MC 8901/2016 PETITIONER'S/S EXHIBITS:

ANNEXURE A TRUE COPY OF THE COMPLAINT IN C.C.1840

OF 2016 FILED BEFORE THE HON'BLE

JUDICIAL FIRST CLASS MAGISTRATE COURT

III, NEYYATTINKARA DT. 31-10-2016.

/True copy/ P.S to Judge