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Arcot N Veerasamy v. J. Jayalalitha - CRL.R.C.NO.870 OF 1998  RD-TN 357 (14 June 2002)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HON'BLE MR. JUSTICE MALAI. SUBRAMANIAN
CRL.R.C.NO.870 OF 1998
Arcot N Veerasamy ...Petitioner. vs.
rep. by V.S. Sethuraman
No.36 Poes Garden
Chennai 600 086. ... Respondent Petition filed under Sections 397 and 401 of Criminal Procedure Code against the order passed in Crl.M.P.No.756 of 1998 in C.C.No.2592 of 1998 on the file of the Chief Metropolitan Magistrate, Egmore, Chennai. For Petitioner :: Mr. N. Natarajan Senior Advocate
M/s.G.Krishnamoorthy G. Babu, Sunder Mohan and
For Respondent :: Mr. N. Jothi
:O R D E R
This revision has been preferred against the order passed in Crl.MP. 756/1998 in C.C.NO.2592/1998 pending on the file of the Chief Metropolitan Magistrate, Egmore. Certain brief facts that are essential to appreciate the rival contentions in this revision are as below:
2. The respondent lodged a complaint under Section 190(1)(a) of Cr. P.C. for an offence under Section 500 I.P.C. before the learned Chief Metropolitan Magistrate, Egmore, Chennai against the petitioner, through her power of attorney Mr. V.S. Sethuraman, alleging that the petitioner made defamatory statements and the same appeared as a news item in the Newspaper @jpdje;jp@. The power of attorney of the complainant while presenting the complaint also filed a petition under Section 199 Cr.P.C. requesting the court to grant leave to make the complaint. This petition was taken on file by the learned Chief Metropolitan Magistrate in Crl.M.P.No.1293/97 and he passed the following order:
"On a careful consideration of the reasons stated in the petition as well as on a perusal of the xerox copy of Discharge Certificate issued by the Appollo Hospital in favour of the complainant Selvi J. Jayalalitha, this Court is of the opinion that Thiru V.S. Sethuraman, Power of Attorney agent of the complainant Selvi J. Jayalalitha can be granted permission to file this complaint on behalf of the complainant Selvi Jayalalitha against the respondent Thiru Arcot N. Veerasamy and accordingly this petition filed under Section 199 (proviso) Cr.P.C. is allowed."
3. This order of the Chief Metropolitan Magistrate was dated 17.4.19 97. Thereafter, he registered the complaint in Crl.M.P.No.1329/97, recorded the sworn statement of the power of attorney and dismissed the complaint by order dated 23.4.1997 holding that the sworn statement cannot be recorded from the power of attorney and also holding that there was no sufficient material to make out the offence complained of and no prima facie case has been made out. Aggrieved by this order, the complainant came on revision before this Court. This Court in Crl.R.C.No.273/97 held that the complaint should not be dismissed merely on the basis of the alleged invalid sworn statement given by the power of attorney. This Court further held as follows:
"Having allowed the petition under Proviso to Section 199(1) Cr.P.C., the learned Chief Metropolitan Magistrate, could not hold that the sworn statement of the power of attorney agent is not valid in law, and that the complainant cannot be exempted by permitting the power agent to conduct this criminal case, and that therefore, no credence could be given to the permission already given by that court.
This observation in my view, would amount to review his own order passed earlier on 17.4.1997".
4. This court though accepted the contention of the then revision petitioner viz., the complainant with regard to the above aspect, chose to dismiss the revision by holding thus:
"Therefore, in the absence of the said averment in the complaint, with reference to the fact of the reputation of the petitioner having been lowered down in the estimation of others, I feel that sufficient ground is not made out for proceeding further, by taking cognizance of the complaint."
5. Thereafter, the complainant went to the Supreme Court and the Supreme Court in Criminal Appeal No.63/1998 arising out of SLP No.2113/9 7 has been pleased to hold as follows:
"Special Leave granted.
Heard learned counsel for the parties.
As it appears to us that in the petition of complaint, the appellant has made specific allegation that his reputation has been impaired by the alleged statement made by the respondent, the High Court was not justified in disposing of the petition on the ground that no allegation was made by this respondent, We therefore, set aside the impugned order and in view of the specific allegation made by the respondent direct the Chief Judicial Magistrate, Egmore to issue process under Section 204 of Criminal Procedure Code for taking cognizance. We, however make it clear that we have not expressed any opinion on the merits of the case. It will be open to the respondent to raise such objection including preliminary objection if available to the respondent in law, The appeal stands disposed accordingly."
6. When the matter came back to the learned Chief Metropolitan Magistrate, he took the case on file in C.C.No.2592/98 and issued process to the accused and on 8.5.1998, the accused appeared before that Court, copies were furnished to him, accused was also questioned and the accused pleaded not guilty. Therefore, the learned Chief Metropolitan Magistrate, posted the case for trial to 22.6.1998, on which date, the accused/revision petitioner filed Crl.M.P.756/98 under Sections 204 and 251 Cr.P.C. by way of preliminary objection and prayed for dropping of the proceedings against him.
7. Two grounds were raised in that petition. The first one is that no Court shall take cognizance of the offence of defamation, except upon a complaint made by some person aggrieved by the offence and the complainant had not made out a case that she was entitled to the benefit of proviso to Section 199 Cr.P.C. and also that there was no material to show that the aggrieved person was suffering from any sickness during the time when the complaint was filed. It was also further stated that the proviso to Section 199 Cr.P.C. does not contemplate filing of the complaint by the power of attorney. The second ground was that the allegations in the complaint do not make out an offence under Section 500 I.P.C. and if the statement made by the accused is covered by any one of the exceptions to Section 499 I.P.C., the offence of defamation is not at all made out. The learned Chief Metropolitan Magistrate after hearing both sides held that when an order has been passed allowing a petition by the power of attorney the Court cannot review its own order. He has also mentioned that with regard to the other contentions raised in paragraphs (d) & (e) of the petition, the learned Senior Counsel for the petitioner/accused, Thiru N. Natarajan stated in the due course of argument that he was not advancing any argument with regard to the same. After holding so, he dismissed the petition to drop proceedings. Hence this revision by the accused.
8. The learned Senior Counsel Mr. N. Natarajan arguing on behalf of the revision petitioner submits that the mandate of Section 199 Cr.P.C. has not been followed in this case and therefore, the learned Chief Metropolitan Magistrate ought to have dropped the further proceedings in this case. According to him, the proviso to Section 199 Cr.P.C. enables the complainant to make a complaint through some other person with the leave of the court only under circumstances mentioned therein and insofar as this case is concerned, the complainant has not established that she was suffering from sickness or infirmity, so that she was not able to make the complaint. His further contention is that though this point was raised, it was not at all considered by the learned Chief Metropolitan Magistrate and since the Supreme Court has given another opportunity to the revision petitioner to raise such objection including preliminary objection, the Chief Metropolitan Magistrate ought to have discussed and given a finding on the above aspect. The learned Senior Counsel also submits that only a xerox copy of medical discharge certificate was produced along with the complaint and the original was not produced and therefore, the learned Chief Metropolitan Magistrate was not right in taking cognizance of the complaint filed by the Power of Attorney of the complainant.
9. As against the above contentions, the learned counsel appearing for the respondent/complainant would submit that a new plea has been taken attacking the xerox copy of the medical certificate; since the same was not raised either before the trial Court or even in the grounds of revision and since the cognizance of the offence has already been taken, this plea cannot be considered at this stage. He would further contend that in the Special Leave Petition before the Supreme Court, the revision petitioner was the contesting party, but he did not raise such a plea even before the Supreme Court and since Leave has already been granted to the Power of Attorney to lodge the complaint on behalf of the complainant, the contention of filing of xerox copy of the medical certificate cannot be raised at this stage. He would also submit that the purpose of incorporating a proviso is to make certain exceptions or modifications in the mainstream of the provision. He relies on a ruling of the Supreme Court reported in AIR 1985 SC 582 rendered in the case of S. Sundaram Pillai etc. V. R. Pattairaman, etc. wherein it has been held as follows:
"A proviso may have three separate functions. Normally, a proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. In other words, a proviso cannot be torn apart from the main enactment nor can it be used to nullify or set at naught the real object of the main enactment. While interpreting a proviso care must be taken that it is used to remove special cases from the general enactment and provide for them separately. In short, generally speaking a proviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause"
10. Basing on this ruling, the learned counsel for the respondent submits that the proviso to Section 199(1) Cr.P.C. has enabled the complainant to make the complaint through her power of attorney with the Leave of the court and once the Court granted leave, the question of filing of xerox copy of the medical certificate cannot be gone into. He would further submit that in the order passed by the learned Chief Metropolitan Magistrate while granting leave to the Power of Attorney, he has mentioned that on a careful consideration of the reasons stated in the petition as well as on a perusal of the xerox copy of the discharge certificate issued by the Appollo Hospital in favour of the complainant, he is of the opinion that the leave can be granted to the power of attorney to file the complaint.
11. After the dismissal of the complaint by the learned Chief Metropolitan Magistrate by his order dated 23.4.1997 made in Crl.M.P.1329/9 7, a revision was filed by the complainant and since it was a precognizance stage, notice was not sent to the accused, but while dealing with the revision, this court in Crl.R.C.No.273/97 reported in 1997 1 L.W.(Crl.) has held that the first point raised by the then revision petitioner, who is presently the respondent herein is perfectly correct. The first point raised was that -
"The Lower Court having granted leave to the power of attorney agent to make the complaint on behalf of the petitioner, cannot invalidate the permission already granted, by observing that the sworn statement of the power of attorney agent cannot be considered as the basis to support the averments made in the complaint and that the sworn statement is not valid in law."
12. It is evident that by the above order, this Court has approved the contention of the present respondent that the trial Court cannot invalidate the permission already granted to the Power of Attorney agent to make the complaint on behalf of the petitioner.
13. The learned Senior Counsel arguing for the revision petitioner drew the attention of this Court to a ruling of the Apex Court reported in AIR 1972 SUPREME COURT 2609 rendered in the case of G. Narasimhan and others vs. T.V. Chockappa, wherein the Hon'ble Supreme Court has been pleased to hold that S.199 Cr.P.C. is an exception to the general rule that a complaint can be filed by anybody whether he is an aggrieved person or not, and it modifies that rule by permitting only an aggrieved person to move a Magistrate in cases of defamation. The court further holds that the section is mandatory, so that if a Magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not an aggrieved person, the trial and conviction of the accused in such a case will be void and illegal. The above ruling lays down the general principle embodied in Section 199 Cr.P.C. Even in this case, the complainant is only the aggrieved person, but since the proviso to Section 199 (1) enables the complainant to make a complaint with the leave of the Court through some other person in case the complainant suffers from sickness or infirmity so that he/she was unable to make the complaint, the present complaint has been lodged through the power of attorney of the complainant. Where there is such an enabling provision, this Court fails to understand as to why the enabling provision could not be made use of by the complainant in this case. Moreover, as rightly pointed out by the learned counsel appearing for the respondent, the learned Chief Metropolitan Magistrate, while granting leave to the power of attorney of the complainant to make the complaint in his order dated 17.4.1997 has stated that he carefully considered the reasons stated in the petition and also perused the discharge certificate issued by the Appollo Hospital in favour of the complainant. Though the revision petitioner was a contesting party before the Apex Court in C.A.No.63 of 1998, this point has not been raised there. Even the grounds of revision do not mention the point that the learned Chief Metropolitan Magistrate was wrong in taking the case on file or in granting leave to the power of attorney to lodge the complaint, since only a xerox copy for the medical certificate was filed before the Court. Admittedly, it is a new plea taken only before this Court today.
14. The learned Senior Counsel in support of his contention relies on a ruling reported in AIR 1994 SUPREME COURT 591 rendered in the case of GOVERNMENT OF ANDHRA PRADESH AND OTHERS V. KARRI CHINNA VENKATA REDDY AND OTHERS.
That was a case where while sitting in writ jurisdiction, the High Court admitted photostat copies of documents without recording any finding that the respondents made out a case for acceptance of secondary evidence. Therefore, the Apex Court was pleased to direct the Commissioner of Survey and Settlement to examine the original records and give a finding. After all in this case, the only contention raised is that the acceptance of xerox copy of the medical certificate by the Chief Metropolitan Magistrate while granting leave to the power of attorney to lodge the complaint is not correct. At any time, this aspect can be disputed during the course of the trial and the complainant can be asked to produce the original medical certificate, which enabled her to make a complaint through the power of attorney. Therefore, just for want of production of the original certificate, we are not justified in throwing the complainant out of Court. Besides, the Supreme Court has been pleased to hold that it will be open to the respondent the revision petitioner herein, to raise such an objection including preliminary objection, if available to the respondent in law. Insofar as the objection that a complaint ought not to have been made through the power of attorney is concerned, a final decision has been given by this Court in Crl.R.C.NO.273/97 that the complaint could not be dismissed merely on the basis of the alleged invalid sworn statement given by the power of attorney agent. Insofar as the allegation made in the petition viz., the offence of defamation is not made out, the Supreme Court has been pleased to hold that the complainant has made specific allegations that her reputation has been impaired by the alleged statement made by the respondent and the High Court was not justified in disposing of the petition on the ground that no allegation was made by the respondent. Moreover, a perusal of the impugned order passed by the learned Chief Metropolitan Magistrate shows that the learned Senior Counsel appearing for the revision petitioner did not advance any argument on this contention which was raised in paragraphs (d) & (e) of the petition filed before the trial Court.
15. Lastly, the main and the only contention raised before this Court is that the acceptance of xerox copy of the medical certificate by the trial Court while granting Leave to the power of attorney to make the complaint on behalf of the complainant, is against law. As already held, this is a new point raised only before this Court. The contention of the revision petitioner before the trial Court was that the aggrieved person must satisfy the court that he or she is unable to make a complaint and pursue the same due to sickness and show that he or she was suffering from any sickness during the time when the complaint was filed. There was no murmur in the petition filed before the trial Court that the xerox copy of the medical certificate ought not to have been received and accepted by the trial Court while granting Leave to make the complaint.
16. The learned Senior Counsel argues that the point raised was not answered by the learned Chief Metropolitan Magistrate and he has not even considered it, but simply dismissed the petition filed by the revision petitioner to drop the proceedings. As a matter of fact, the contention raised before the learned Chief Metropolitan Magistrate was that the mandate of Section 199 Cr.P.C. has not been followed in this case and the aggrieved person must satisfy that he or she is unable to make a complaint and pursue the same due to the sickness.
17. The learned Chief Metropolitan Magistrate found that since an order has already been passed by that Court allowing the petition for Leave, that cannot Court review its own order. I do not find any defect or infirmity in the order passed by the learned Chief Metropolitan Magistrate. As I have already said, if the only question is non production of the original medical certificate issued to the complainant to prove her sickness at the time of filing of the complainant, the revision petitioner could have agitated before the Court and demanded the production of the original certificate during the course of hearing and the power of attorney of the complainant could have been called upon by the Court to produce the original certificate. Non production of the original and production of only a xerox copy in the place of the original medical certificate cannot be an incurable defect attaching any infirmity or irregularity to the order passed by the learned Chief Metropolitan Magistrate. Therefore, on that score, I am unable to dislodge the complaint.
18. In the result, I do not find any infirmity in the order passed by the learned Chief Metropolitan Magistrate and accordingly, the revision petition stands dismissed and the connected Crl.M.P. is also dismissed. 14.6.2002.
Index :- Yes
Copy to :-
The Chief Metropolitan Magistrate,
Egmore, Chennai – 600 008.
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