Karnataka HC Refuses To Quash Proceedings Against Lawyer Accused Of Making Defamatory Allegations Against Complainant In Written Statement

Justice K Natarajan rejected the contention of the accused - Advocate Santhosh Kumar M, that there is no criminal intention to defame the complainant or that he only acted in a good faith to protecting his client.

The bench said:

“The averments made by the accused or defamatory statement made by the accused will not fall under the exception of the section 499 of IPC as the statement made by the accused No.3 (Advocate) cannot be said to be in a good faith while conducting the trial or proceedings.”

The lawyer is accused of "making defamatory allegation against the complainant, with an intention to tarnish the image of the complainant," in the written statement filed before Upalokayuktha in response to a complaint against his clients, who are quarry owners. Besides filing the complaint before the Magistrate, the complaint has also filed a civil suit for claiming damages of Rs.1 crore.

Seeking quashing of the proceedings in the complaint under section 499 IPC, the counsel representing the lawyer argued that he only acted in a good faith for protecting his clients and cannot be held liable for defamation.

"The entire documents should be looked into and it should not be pick and choose of men's Rea or criminal intention to defame the complainant," the counsel submitted.

The co-accused contended that the complainant has already filed a civil suit for damages which is at the stage of evidence. "There is no allegation or statement made by these accused in order to attract Sections 499 or 500 of IPC. Exception of 5 and 9 of the Section 499 of IPC, there is protection available to these petitioners. The advocate filed objection, they have not obtained signatures of the accused Nos.1 and 2, therefore, the question of punishing the accused Nos.1 and 2 does not arise," the counsel representing the co-accused argued.

However, the complainant argued that whether there is intention to defame him, is matter of trial.

“The accused No.3 [lawyer] whether he himself acted and mentioned the averments in the written statement of objection, or at the instruction of accused Nos.1 and 2 he has made such allegation, are all to be considered only after the trial,” he submitted.

The court said it is "an admitted fact" that the lawyer filed the statement against the complainant without obtaining the signatures of his clients. 

Considering the records and the alleged defaming objections filed by the accused, the bench said:

“On perusal of these statements it categorically reveals it is a defamatory statement against the complainant by the accused Nos.1 to 3. Therefore, now it cannot be bifurcated whether the accused No.3 himself has written those defamatory statements against the complainant or he prepared objections only on instruction of accused Nos.1 and 2, since the statement of objections were not signed by the accused Nos.1 and 2.”

Observing that the lawyer himself filed the statements of objections, signing himself on behalf of his client, the court said: “Therefore, accused Nos.1 and 2 in one side and accused No.3 on the side cannot blame each other for making such a defamatory statement against the complainant.”

The court further said that it cannot be said there is no intention or mens rea to tarnish the image of the complainant by the accused persons.

It said the Sessions Judge has clearly come to the conclusion that there is a prima facie case made against the accused persons for framing of charge. It added that the accused is a practicing advocate and he himself drafted the objection on behalf of the co-accused and and is aware about the consequences about the statement of objections filed before the public authority in a court of law.

“Therefore, without going to the trial, this Court cannot jump into the conclusion that there is no defamatory statement made by the accused persons or there is no criminal intention or mens rea to defame the complainant, therefore, matter is required for trial,” it added, while dismissing the petition.

Case Title: Santhosh Kumar H And A Keshava Bhat & Others.

Case No: CRIMINAL PETITION NO.4359 OF 2022 CONNECTED WITH CRIMINAL PETITION NO.4451 OF 2022

Citation: 2023 LiveLaw (Kar) 51

Date of Order: 31-01-2023

Appearance: Advocates K Ravishnakar Bhat and Tribhuvan K for petitioner.

Advocate S Rajashekar for R1.

Advocate K RAMABHAT, FOR R2 AND R3.