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Defamatory statements made during judicial proceedings not free from criminal liability under IPC: High Court of Kerala

Any defamatory statement during the judicial proceedings, does not fall under the exceptions listed in section 499 of IPC and cannot be excluded from criminal liability. This was decided in the case of Joy Anto vs. the State Of Kerala [Crl.MC.No.534 OF 2016(F)] in the High Court Of Kerala by single bench consisting of Hon’ble Justice Narayana Pisharadi.

This is a defamation case which arose after a series of events. The petitioner, who was a professor in a college was also the chairman of a company, got into a rift with the legal advisor (complainant in this case) of the same company. The company had engaged the complainant to institute suits for realisation of money due from the subscribers and there was an allegation that he did not institute the suits after receiving money from the company towards the expenses and thereafter he resigned from the post. Later, a writ petition was filed for conducting domestic enquiry against the petitioner on the allegation that while working as a Senior Lecturer, he had also engaged in the business activities of the company. As a response to this in the affidavit, the petitioner in this case replied that writ petitioner was an associate of the complainant who was removed from the company for proved misappropriation of the funds of the company. This statement made is the reason for the FIR of defamation case under Section 500 of the IPC against the petitioner by the complainant.

Counsel for petitioner made the following contentions: (1) The statements made about the complainant in counter affidavit are not defamatory in nature. (2) it does not amount to publication. (3) No criminal liability would arise on making any defamatory statement in a judicial proceeding before a court of law

With respect to the contention of judicial proceedings was concerned, the court said there is no merit in the contention that the statement made by the petitioner in the counter affidavit filed before this Court in the writ petition enjoys absolute privilege and it excludes criminal liability. After a survey of the decisions on the point, in Varghese Cor Episcopa v. State of Kerala 2020 (1) KHC 390, this Court said “that the privilege defined by the exceptions to Section 499 of the Indian Penal Code must be regarded as exhaustive as to the cases which they purport to cover and recourse cannot be had to the English Common Law to add new grounds of exception to those contained in the statute”.

The court observed that the statement that the complainant was removed from the company on proved misconduct and on misappropriation of the funds of the company, is prima facie, defamatory to him. It further went on to say that as the complainant is a lawyer, this would harm his reputation as a lawyer. The petitioner has got no plea that any competent authority had found the complainant guilty of misconduct.

Also, the court asserted that once a statement is filed in a Court of law, it can be considered as published after relying upon the case of Google India Private Limited v. M/s Visakha Industries [AIR 2020 SC 350) where it was held that “The essence of publication in the context of Section 499 of the Indian Penal Code is the communication of the defamatory imputation to persons other than the person against whom the imputation is made”

In view of the above reasons, the court dismissed the petition.

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