Can One Be Prosecuted For Defamatory Remarks In A Counter Affidavit? This Is What The Kerala High Court Held

The Kerala High Court on Wednesday was posed with an interesting fact scenario concerning a case where a person was accused of defamation for statements made in a counter affidavit.

Observing that there was no absolute privilege against defamation available to allegations/claims in pleadings, Justice R Narayana Pisharadi stated,

"Section 499 of the Indian Penal Code does not give absolute privilege to statements made in a Court of law in the judicial proceedings. The privileges recognised under Section 499 of the Indian Penal Code are qualified."

The Court was hearing a case moved under Section 482 of the Code of Criminal Procedure by one Dr Joy Anto, Chairman of M/s. Cherupushpam Kuries.

He was accused by a lawyer, CR Jaison for supposed defamatory remarks published in a counter affidavit tabled in the High Court as well as in the annual report of the company. Jaison had previously served as Deputy Chairman and Legal Advisor of the company, tasked with instituting suits for recovery of sums due to the concern.

In the counter affidavit, which was filed in response to a petition seeking disciplinary action against him, Anto alleged that the petitioner in the case was an associate of Jaison's who was removed on proved misconduct and misappropriation of the funds of the company.

The Annual Report contained a statement reciting that Jaison had resigned from the company on account of dereliction of duty in conducting the cases for and on behalf of the company.

Distressed at proceedings instituted against him by Jaison, Anto filed a case in the High Court under Section 482 of the Code of Criminal Procedure.

What Anto's Counsel argued

Anto's counsel, Senior Advocate S Sreekumar, made the following submissions on Anto's behalf:

1. The statements in the annual report of the company and the
2. counter affidavit are not defamatory in nature against Jaison
3. A statement in the counter affidavit filed in a writ petition does not amount to publication.
4. There could be no criminal liability for a defamatory statement in a judicial proceeding before a court of law.
5. Exceptions 5 and 8 of Section 499 of the Indian Penal Code would apply (The exception exempts any discussion on the merits of cases and communicating the same to a person with lawful authority).

What constitutes 'publication?'

The Court opined that the remarks regarding Jaison's 'proven misconduct' and 'misappropriation of funds', were prima facie defamatory especially considering he was a lawyer. Another reason why the remarks could be termed defamatory were because no competent authority had found the complainant guilty of misconduct.

Explaining that defamation constituted communication of an imputation to persons other than the subject of the imputation, the Court reasoned that pleadings in a court could carry defamatory content.

"There is no basis for the plea that making a statement in the counter affidavit does not amount to publication," the Court stated.

The Court relied on Thangavelu Chettiar v. Ponnammal to so hold.

As to the question of whether pleadings enjoyed absolute privilege excluding criminal liability, the Court found that it would not.

The Court said,

"Freedom of speech and expression is a fundamental right under the Constitution. But, all fundamental rights are subject to reasonable restrictions. Section 499 of the Indian Penal Code does not give absolute privilege to statements made in a Court of law in the judicial proceedings. The privileges recognised under Section 499 of the Indian Penal Code are qualified.

The Bench added that in a civil action for defamation, plea of absolute privilege is a valid defence.

Refusing to examine whether the fifth and eighth exceptions to defamation would apply, the Court observed that these were questions that had to be decided at the time of trial rather than in a petition under Section 482.

Ordinarily, the question as to whether the statement in a given case falls under any of the ten exceptions to Section 499 of the Indian Penal Code will have to be decided only after trial. They are matters of evidence, it was stated.

The Court, however, expressed its doubts as to whether Anto could be prosecuted for the statements in the annual report, particularly since there was nothing to demonstrate he had made the statement.

On these terms, the petition was dismissed.

Click here to download the Order