IN THE COURT OF XXXXX:At CXXX
CF No: /2019
- C. No. /2020
husband … Complainant
- Knife’s mother
- knifes father… ……………………………….Accused
WRITTEN SUBMISSIONS FILED BY THE COMPLAINANT
- It is submitted that the complainant averred in his complaint and also in his sworn statement that he is defamed, intimidated and lost his reputation and the same was corroborated by PW3 in his sworn statement, and further evidence regarding the same will be submitted during trial.
ESTABLISHMENT OF PRIMA FACIE AND GROUNDS FOR OFFENCE U/S 500, 501 OF IPC
- It is submitted that the complainant had reproduced the PW2 and PW3’s sworn statements as below which is a clear evidence of SLANDER made on the complainant by the Accused No:1:
|When I enquired about his husband A1 told her husband is mad man and unable to earn money and he is not fit to her. A1 further told she filed a case against complainant, on the advice of elders.
||While Chit Chatting with A1 she told about complainant psychologically mental and not fit as a husband to her and further informed complainant needs treatment. In the meantime complainant came and scolded A1 why she defame him before me. A1 scolded complainant and manhandled him. I have no connection with complainant with a period of 3 years later in the year 2018. I met complainant in conference and told the attitude of A1 and she caused damage to his reputation in the society.
It is slander because:
- The behaviour of Accused No:1 calling the complainant as a mental patient, and then slapping him before PW3 , is per-se defamatory and irreparable dent on the complainant’s reputation.
- The Accused No:1 intentionally levelled a slanderous allegation that the complainant is a mad man before PW2, which is again a per-se defamatory statement.
- It is submitted that the complainant had reproduced the words of the Accused No:1 made by her in the police report made on and the CrPC 161 statements of Accused No:2 & 3 as below which is a clear evidence of LIBEL made on the complainant by the Accused No:1,2 & 3:
- It is submitted that 161 CrPC Statements have qualified privilege but not absolute privilege and the Accused No: 2 & 3 are liable to be prosecuted criminally for the defamatory statement referring him as a psycho and a pervert as made to the police during investigation and to support this contention the complainant is relying on the below judgements of the Apex Court and various High Courts:
||Khatri vs State Of Bihar 1981 2 SCC 493
||Gujarat High Court
||Nalin Bhai Thakor Bhai Mehta Vs Laxmi Ben Gobardhan Das Patel (1985) 1 Crimes 414(Guj)
||Delhi High Court
||Bikramjit Ahluwalia vs Simran Ahluwalia -2012
||Madras High Court
||P. Zainulabidden vs KMH Sahul Hameed alias Abu Abdullah
- Supreme Court — Khatri vs State Of Bihar
“It bars the use of any statement made before a police officer in the course of an investigation under chapter XII, whether recorded in a police dairy or otherwise, but by the express terms of Section, this bar is applicable only were such statement is sought to be used ‘at any inquiry or trial in respect of any offence under investigation at the time when such statement was made’. If the statement made before a police officer in course of an investigation under chapter XII is sought to be used in any proceeding other than an inquiry or trial or even at an inquiry or trial but in respect of an offence other than that which was under investigation at the time when such statement was made, the bar of Section 162 would not be attracted”.
- Gujarat High Court — Nalin Bhai Thakor Bhai Mehta Vs Laxmi Ben Gobardhan Das Patel
“A person making a statement under Section 161 CrPC, to the police during investigation is not a witness and hence no privilege attaches to defamatory statement made by him to the police.
Neither the Criminal procedure Code nor the Indian evidence Act, which are complete codes in themselves, provide for any privilege to the maker of a statement under section 161 CrPC and the maker can be prosecuted criminally for any defamatory statement made to the police during investigation”.
III. Delhi High Court: — Bikramjit Ahluwalia vs Simran Ahluwalia
“the statements made under Section 161 CrPC are only exempted for usage at any inquiry or trial in respect of any offence under investigation at the time when statement was made. So far as the use of such statement made in a separate proceeding for prosecution of an offence under Sections 499/500 IPC is concerned, the bar of Section 162 CrPC would not be attracted. Statements under section 161 CrPC can claim only “qualified privilege” and not “absolute privilege”.”
- Madras High Court: — P. Zainulabidden vs KMH Sahul Hameed alias Abu Abdullah
“The statement was made to police under section 161 CrPC is not an absolutely privileged statement but only qualified in privilege. It was held that such statements do not come under exception 9 of section 500 of I.P.C. Hence the proceedings could not be quashed.”
- It is submitted that the Accused No: 2 and 3 repeated the defamatory allegations in their CrPC 161 statements which were made by the Accused No: 1 in her FIR. To support this contention/statement the complainant very much relying on the judgment in the case of Chandrasekhara vs Karthikeyan, AIR 1964 Ker 277, 1964 CriLJ 549 where it was held by the High Court of Kerala that:
“It is not only the originator or a defamatory imputation but also the person or persons repeating the same will be liable”.
- It is submitted that the Accused No:1 gave a complaint to the police which is duly registered as an F.I.R, in Police Station, in which certain Defamatory statements were made against the complainant, which is read by the police and the same is filed in the Hon’ble court, after taking CrPC 161 statements from the accused no’s 1, 2 and 3, and these statements are read by the police and everybody who has access to the documents in the court, including bench clerk, superintendent of Hon’ble court and to support this contention that this amounts to publication and the complainant is relying on the below judgements of various High Courts:
||Rajasthan High Court
||Lachman Vs Pyar Chand
||Andhra High Court
||Dr. Smt. R.Mahalakshmi vs Smt. Nirmala Reddy And Another
||Kerala High Court
||Prabhakaran vs Gangadharan
||Delhi High Court
||Sanjay Mishra vs State of Delhi
Rajasthan High Court: Lachman vs Pyarchand
“The word ‘publish’ means to make known to others. The plaint undoubtedly said that the report had been made to the police. That being so, it cannot but be held that the alleged objectionable matter had certainly been communicated to some person or persons other than the plaintiff himself.
I may further point put in this connection that though in common parlance the word “publication” is usually understood in the sense of making the contents known to the public, yet the meaning of this expression in the present context is not so limited in law. Thus, where a libel is contained in a telegram or is written on a post-card, that would amount to publication even though it is addressed to the party concerned, the reason being that the telegram would inevitably be read by the officials concerned in receiving or transmitting the contents thereof, and the post-card will also in all probability be read by some persons in the course of transmission.
There is no doubt that in the present case when the report was made to the police, it was certainly made known to persons other than the plaintiff and this was sufficient publication in the legal sense.”
- Andhra High court: Dr R Mahalakshmi Vs Nirmala Reddy
“I consider that any claim in a written statement, counter or evidence is tantamount to a publication, which is viewed not only by the other side but also by the counsel, perhaps the particularly the Bench Clerk. Consequently, the contentions in the counter certainly are liable to be treated as publication within the meaning of Section 499 IPC.”
- High court of Kerala: Prabhakaran vs Gangadharan
“Once a statement has been filed in a court of law, that statement can be taken as published and if such a statement amounts to per se defamatory, it is the duly of the accused to establish that they are justified in making such a statement under any of the exceptions to Section 499 I.P.C.”
- High Court Of Delhi : Sanjay Mishra Vs State of Delhi
“For criminal purposes “publication” has a wider meaning than it has in civil the prosecution for defamation in criminal cases can be brought the only publication is to the person defamed as it is very likely to provoke a breach between the persons involved.”
- It is submitted that the Accused No: 1 leveled a specific allegation that the complainant is impotent, which is averred by the complainant both in his complaint and also in his sworn statement and to support this contention, the complainant is very much relying on the judgment in the case of names with held where it was held by the Bombay High court that:
“the word “impotent” when understood in it’s plain and grammatical sense, reflects adversely upon the manhood of a person and has a tendency to invite derisive opinions about such person from others and, therefore, use of such word and its publication as contemplated under Section 499 of IPC would be sufficient to constitute, in a prima facie manner, the offence of defamation punishable under Section 500 of IPC”.
- It is submitted that it is necessary for the complainant to bring to the knowledge of this Hon’ble Court about the essentials of defamation in support of his statements to establish a prima facie case that he was defamed by Accused No: 1 to 3 by relying on the below judgment of Delhi High Court in the case of Standard Chartered Bank vs Vinay Kumar Sood, 06-02-2009 where it was held that:
“For an offence of defamation as defined under section 499 I.P.C., three essential ingredients are required, to be fulfilled:
- Making or publishing any imputation concerning any person
- Such imputation must have been made by words either spoken or intended to be read or by signs or by visible representations
- The said imputation must have been made with the intention to harm or with knowledge or having reason to believe that it will harm the reputation of the person concerned.”
Similarities in C.F.R no /2019
- The Accused No: 1 published libel in the F.I.R, and the Accused No’s 2 and 3, repeated the allegations in their respective CrPC 161 statements, thus matching the first essential criteria of the above judgement;
- The slander of Accused No:1 was duly corroborated by the sworn statements of PW2 and PW3, and libel by the F.I.R and CrPC 161 statements of the Accused No:2 and 3; and
- In the circumstances of the case, i.e., slander before PW2 and PW3, libel in the F.I.R by the Accused No:1 and CrPC 161 statements by the Accused No:s 2 and 3, would show that they have a reason to believe that it will harm the reputation of the complainant.
- It is submitted that complainant’s reputation is damaged and the complainant’s personal rights as a human being include the right of reputation which is protected by the constitution equally with the right to the enjoyment of life, liberty and property under Article 21 of the Constitution of India and to support complainant’s contention of the importance of the reputation, the complainant humbly submits the below Judgment of the Hon’ble Supreme Court in the case of Kiran Bedi & Ors vs Committee Of Inquiry & Anr on 4 January, 1989
Equivalent citations: 1989 AIR 714, 1989 SCR (1) 20 which is very relevant to the present case and where it was held that:
- “The following words of caution uttered by the Lord to Arjun in Bhagwad Gita with regard to dishonour or loss of reputation may usefully be quoted:
“Akirtinchapi Bhutani Kathai shyantite-a-vyayam, Sambhavitasya Chakirtirmara- nadatirichyate.” (234)
(Men will recount thy perpetual dishonour, and to one highly esteemed, dishonour exceedeth death. )
- In Blackstone’s commentary of the laws of England, Vol- I, IVth Edition, it has been stated at page 101 that the right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation”
- It is submitted that Exceptions to Defamation are a matter of trial and to support this contention the complainant is very much relying on the below 2 judgments of the Apex Court:
- Supreme Court: Jefrrey .J. diermeir vs State of West Bengal
“It is trite that where to the charge of defamation under Section 500 IPC, the accused invokes the aid of Tenth Exception to Section 499 IPC, “good faith” and “public good” have both to be established by him. The mere plea that the accused believed that what he had stated was in “good faith” is not sufficient to accept his defence and he must justify the same by adducing evidence.
To constitute “defamation” under Section 499 of the IPC, there must be an imputation and such imputation must have been made with intention of harming or knowing or having reason to believe that it will harm the reputation of the person about whom it is made. In essence, the offence of defamation is the harm caused to the reputation of a person. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant, irrespective of whether the complainant actually suffered directly or indirectly from the imputation alleged.”
- Supreme Court: Balraj Khanna vs Moti Ram
Under ss. 202 and 203 Cr. P.C. the Magistrate has to see whether a prima facie case is made out against the accused on the materials and’ evidence placed before him by the complainant and not whether the evidence is sufficient to warrant a conviction. [452G-H; 453A-B] In the present case, the approach of the Magistrate was fallacious in the face of the allegations by the respondent that all the appellants made the statements referred to in the report. [458F] Chandra Deo Singh v. Prokash Chandra Bose,  1 S.C.R. 639, followed.
It was also unnecessary for the High Court to consider the applicability of the Exceptions to s. 499 I.P.C., at this stage. All the defence that may be available to the appellants will have to be gone into during, the trial of the complaint. [459B-C]
- It is further submitted that as per Sec 105 of Indian Evidence Act:
“When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances”.
GROUNDS FOR OFFENCE U/S 506 R/W 120B & 34 OF IPC
- It is submitted that the complainant was threatened and intimidated by the Accused No:1, that she will file a police complaint if he doesn’t shift to her place. And the same was duly corroborated by the sworn statement of PW2, and the complainant has further evidence of the same which will be submitted during trial.
- It is submitted that the circumstances in support of the alleged conspiracy in terms of Sec 120B of IPC are enumerated below for brevity:
- The sworn statement of the complainant that the Accused No:1 threatened him that she will file a police complaint
- The sworn statement of PW2 that Accused No:1 admitted before him that she filed a case on the instigation of her elders
- Unexplained delay of more than 1 year in lodging the F.I.R
- Repetition of defamatory statements by the accused 2 and 3
- LW statement of Accused No:4, who is none other than the maternal uncle of Accused No:1 and he being neither from the place of Accused No:1 nor from the place of the complainant
- LW statement of Accused No: 5, he being neither a relative of the Accused No:1 nor a relative of the complainant, and also not even an eye witness to the alleged cruelty, but only an acquaintance of Accused No:3.
- It is submitted that based on the above circumstances, it is well established that there is meeting of minds of all the accused to, enter into a conspiracy, with the intent of defaming and intimidating the complainant and to support this contention/statement the complainant very much relying on the below two judgments:
- Supreme Court of India: State of A.P vs Madhusudhan Rao
“Time and again, the object and importance of prompt lodging of the First Information Report has been highlighted. Delay in lodging the First Information Report, more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of coloured version, exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained.”
- Supreme Court Of India: Bilal Hajar @ Abdul Hameed vs State Rep. By The Inspector of Police
“Therefore, in order to constitute a conspiracy, meeting of minds of two or more persons to do an illegal act or an act by illegal means is a must. In other words, it is sine qua non for invoking the plea of conspiracy against the accused. However, it is not necessary that all the conspirators must know each and every detail of the conspiracy, which is being hatched and nor it is necessary to prove their active part/role in such meeting.
In other words, their presence and participation in such meeting alone is sufficient. It is well known that a criminal conspiracy is always hatched in secrecy and is never an open affair to anyone much less to public at large. It is for this reason, its existence coupled with the object for which it was hatched has to be gathered on the basis of circumstantial evidence, such as conduct of the conspirators, the chain of circumstances leading to holding of such meeting till the commission of offence by applying the principle applicable for appreciating the circumstantial evidence for holding the accused guilty for commission of an offence. “
P R A Y E R S
- That based on the circumstances as narrated above, the complainant most humbly prays that this Hon’ble Court may be pleased to:
- Take cognizance of the offences made by the Accused as follows:
- Accused 1 to 3 u/s 500, 501, 506, 120B and 34 of IPC,1860
- Accused 4 to 5 u/s 506 r/w 120B and 34 of IPC,1860
- Issue summons to the Accused to appear before this Hon’ble Court.
It is prayed accordingly.
Date: XX –XX – XXXX.