Shaukatali Ibrahim Rangrez And … vs Mohommad Siraj And Another.

Bombay High Court

Shaukatali Ibrahim Rangrez And … vs Mohommad Siraj And Another on 11 July, 1996

Equivalent citations: 1997 CriLJ 1352Bench: S Mutalik

Excerpt:
crpc 179 applies to those offences which, by their very definition, consist of an act and its consequence. In short, the act and its consequence must together constitute an offence. The offence of defamation consists not only of the statement said to have been made but also its publication. The publication is a consequence of the alleged statement said to be made by the accused. Therefore, the Court where the act has been done or where the consequence has ensued. The consequence contemplated by Section 179 is not a remote consequence of the act done. ‘Consequence’ is confined to that which is an ingredient of the offence for which the accused person is being tried.

 

 

 

ORDER

1. Heard Shri Darak, learned advocate holding for Shri R. R. Jethlia, advocate for the petitioners, Shri Kasliwal, learned advocate for respondent No. 1 and Shri Godhamgaonkar, learned APP, for Respondent No. 2.

2. By granting Rule, the matter is taken up for final hearing with the consent of the learned advocate for the parties.

3. The present criminal application is filed by the petitioners-original accused in RCC No. 1542/95 for quashing the order of issue of process passed by Chief Judicial Magistrate, Parbhani on 22-9-95.

4. The complainant in the private complaint has alleged that he is a respectable person of Rangrez community and is working as electrical contractor. He belongs to Rajasthan Muslim Rangrez Biradari Dakkhan (Maharashtra, Karnataka, Tamil Nadu and Andhra Pradesh). Right from the beginning, his fore-fathers started using the surname Rangrez. He belongs to Muslim community and following the traditions laid down by Islam. It is further contended that he has built up his own reputation in the town and society. He is known as sportsman and active social worker and has participated in various cultural activities. He is further rendering services to the community in Parbhani District.

5. He was also appointed as a head of the District of his community from 1990 to 1995 and it was so decided in the meeting of the community which took place on 23rd and 24th September 1990. Original accused Nos. 13 and 14 i.e. Abdul Mazeed Maula Baksh Rangrez and Abdul Wahab s/o Abdul Gani Rangrez also belong to his community and they are resident of Parbhani. The complainant’s social standing in his community was not liked by original accused Nos. 13 and 14. They approached the complainant on 2-6-1995 at Parbhani along with some other persons and threatened him that his whole family would be ex-communicated from Rangrez Biradari. They uttered these words in loud insulting tone, so that persons residing in the vicinity should hear the same. They further threatened him that he should not attend the general meeting of the community which was to be held at Kopargaon on 3rd and 4th June 1995. Because of the utterances of original accused Nos. 13 and 14, his prestige in the community was lowered down. According to the invitation received by him in respect of the meeting which was to be held on 3rd and 4th June 1995, he went to Kopargaon. There was a sudden pronouncement by all the accused that the complainant who was then the head of Parbhani District of Rangrez community has been ex-communicated and expelled from the community. It is further contended that the utterances of all the accused hurt his feeling and also social reputation in the society. After he returned to Parbhani, he could see that his image in his community was lowered. His younger son by name Mohd. Kamal Naser was already engaged with the daughter of one Mohd. Hanif of Nandurbar and the marriage ceremony was to be commenced in near future. However, because of the resolution of excommunication, and the illegal activities the accused, the marriage was held-up. Thus according to him all the accused have committed an offence punishable under S. 4 of Bombay Prevention of Ex-communication Act, 1949 as well as under Ss. 499 and 500 of the IPC. Before lodging the complaint he approached the Collector, Parbhani for obtaining previous sanction and he is permitted to initiate legal proceeding against them. In the verification the complainant has reiterated all the allegations made in the complaint.

6. The learned trial Judge after going through the contents of the complaint and verification found that there are sufficient grounds prima facie to issue process against all the accused (present petitioners) and thus passed the impugned order on 22-9-95. The same is challenged by filing the present criminal application.

7. Shri Darak, learned advocate for petitioners submitted that especially when the meeting took place on 3rd and 4th June 1995, at Kopargaon, where so-called resolution was passed, all of a sudden uttered words about his ex-communication, the Court at Kopargaon will have jurisdiction to try the case. It is further submitted that main allegations are made against the original accused Nos. 13 and 14, however, the respondent No. 1 has implicated all the accused unnecessarily when they had not taken active participation in the commission of the so-called offence. Shri Kasliwal, learned advocate for the respondent No. 1 submitted that in respect of the jurisdiction of the Court of Chief Judicial Magistrate, Parbhani, the petitioners never submitted any application either for recalling the order of issue of process or challenged the jurisdiction of the same Court. According to Shri Kasliwal, especially when both these remedies were available to petitioners and when they have not availed of the same, it is not open for petitioners to challenge the jurisdiction of the Court of Chief Judicial Magistrate, Parbhani. However, in respect of the order of issue of a process, learned advocate submitted that in view of the ruling reported in 1994 Marathwada CR 341, Yashwant v. Asrabai of this Court, it was open for petitioners to approach the same court with a prayer to recall the order of issue of a process.

8. After perusing the prayer clause, petitioners have prayed to quash the proceeding under Sec 482  of Cr.P.C. However, in the petition itself, petitioners have challenged the jurisdiction of the same Court in respect of maintainability of the complaint.

9. On the last occasion, when the matter came up on the Board, suggestion was given by Mr. Kasliwal, learned advocate for respondent No. 1 that in case the petitioners are ready and willing to tender unconditional apology in respect of their utterances and the resolution passed by them, respondent No. 1 will withdraw the prosecution. Shri Darak, learned advocate for petitioners took time to communicate the same to petitioners. However, it appears that petitioners are not ready and willing to accept the proposal and hence, the matter is beard on merits.

10. Assuming for the sake of argument that petitioners have not applied to the same Court and challenged the jurisdiction of the Court, it is abundantly clear from the contents of the complaint and the verification that the original accused Nos. 13 and 14 approached the respondent No. 1 and they had sharp exchange of words. Even they expressed to the respondent No. 1 that he should not attend the meeting at Kopargaon. However, as the respondent No. 1 was one of the office bearers of the community in one area mentioned by him in the complaint, he thought it desirable to attend the annual meeting of his community which was held on 3rd and 4th June 1995. Respondent No. 1 has further given the details about the utterances of petitioners in the meeting in respect of his ex-communication. Further consequences are also stated by him as to how his prestige in the community is lowered down. The marriage of his son was solemnised but the same was not celebrated because of his ex-communication from the community. Prima facie sufficient contentions are taken in the complaint as to how he was defamed at Parbhani. It is submitted by learned advocate for respondent No. 1 that in case if certain utterances had taken place at one place and the person is defamed at the place where he is residing, that place will have a jurisdiction to try the offence. Reliance is placed on the ruling reported in 1984 Cri LJ 1618 (Kant), S. Bangarappa v. Ganesh Narayan Hegde,, in which it is observed as follows :

“Where, the alleged defamatory statement made by the accused in the press conference at B was published in the evening newspaper ‘Sanje Vani’ on the same day at B and in the daily newspaper ‘Samyukta Karnataka’ in the early hours of the very next day at H, it was held that the Court at H had jurisdiction to try the offence of defamation.

crpc 179 applies to those offences which, by their very definition, consist of an act and its consequence. In short, the act and its consequence must together constitute an offence. The offence of defamation consists not only of the statement said to have been made but also its publication. The publication is a consequence of the alleged statement said to be made by the accused. Therefore, the Court where the act has been done or where the consequence has ensued. The consequence contemplated by Section 179 is not a remote consequence of the act done. ‘Consequence’ is confined to that which is an ingredient of the offence for which the accused person is being tried.

It was not the case of accused that ‘Samyukta Karnataka’ made a reference to the publication of the news item in ‘Sanje Vani’ and made it a soure for publication in its paper. The publication of the statement in ‘Samyukta Karnataka’ had nothing to do with the publication made by ‘Sanje Vani’. Looking to the close Proximity of time and the place, unity of purpose or design in publishing the same, one can very well make out that the publication of the alleged statement ‘Samyukta Karnataka’ was a consequence of the statement made in the press conference. Therefore, it cannot be said that the publication of the statement in ‘Sanje Vani’ completed the alleged offence of defamation in B itself. It may be that the Court at B also might have had jurisdiction. But the fact remains that an independent paper like ‘Samyukta Karnataka’ independent of the publication in ‘Sanje Vani’, published that statement in H. Therefore, the publication of the alleged statement in ‘Samyukta Karnataka’ will be a consequence within the meaning of crpc 179.  Once the consequence of publication has taken place at H, it cannot be said that Court at H has no jurisdiction to try the present offence.”

Further reliance is placed by learned advocate for respondent No. 1 on the ruling reported in 1986 Cri LJ 1797 (BOM),
https://defamationnlr.wordpress.com/2019/04/19/04-09-1985/ wherein it is observed :

“The posting of the letter being publication in cases where the letter reaches its destination, the offence itself is completed with the posting of the letter and gives jurisdiction to the Court where the letter is posted and consequences which consisted in gaining publicity at the opening of the letter at the other and also gives jurisdiction where the addressee resided.

Therefore, in a defamation case the venue of trial could be at the place where the letter was written and posted or also at the place where the letter was received and read.”

If both these rulings are taken into consideration, certainly the Court of Chief Judicial Magistrate Parbhani has a jurisdiction to try the complaint and the offences complained of against petitioner.

11. This is not a fit case to quash proceeding under CrPC 482, particularly after perusing the contents of the complaint and the verification. Especially when the Court has taken into consideration and has applied its mind to the contents of the same in a proper perspective and has passed an order of issue process, there is nothing wrong in it and it is not open for petitioners to challenge the same. Learned advocate for respondent No. 1 has placed reliance on the ruling  It is observed a follows :

“If the complaint which is made is correct and an offence had been committed which will have to be established in a Court of law, it is of no consequence that the complainant was a person who was inimical or that he was guilty of mala fides. If the ingredients which establish the commission of the offence or misconduct exist then, the prosecution cannot fail merely because there was an animus of the complainant or the prosecution against the accused. Allegations of mala fides may be relevant while judging the correctness of the allegations or while examining the evidence. But the mere fact that the complainant is guilty of mala fides, would be no ground for quashing the prosecution. In the instant case, specific averments of facts have been made whereby it was alleged that the respondent had disproportionately large assets. Mala fide intention of the appellant in launching prosecution against the respondent with a view to punish him cannot be a reason for preventing the Court of competent jurisdiction from examining the evidence which may be led before it, for coming to the conclusion whether an offence had been committed or not.

The Court should not, except in extra-ordinary circumstances, exercise its jurisdiction under CrPC 482, so as to quash the prosecution proceedings after they have been launched.

At the stage of quashing a first information report of complaint, the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. This is precisely what has been done by the learned Judge in the present case. The first information report having been lodged, the Government of Maharashtra having accorded sanction and thereafter, the charge having been filed, there was absolutely no justification for the High Court to have stopped the normal procedure of the trial being allowed to continue. It cannot be presumed that there was no application of mind when the first information report was prepared and the sanction of the Government obtained. The allegation as made in the first information report and the order granting sanction, if true, would clearly establish that the respondent was rightly prosecuted and was guilty of criminal misconduct. The truthfulness of the allegations and the establishment of the guilt can only take place when the trial proceeds without any interruption. There was no justification for the High Court to have exercised its jurisdiction under Art 227 of the Constitution and sec482 of the Cr.P.C. in quashing the prosecution.”

12. The above ruling is applicable to the facts of the present case in all material particulars and hence, the petitioners prayer for quashing process deserves to be rejected.

13. In view of the provisions of Section 6(b) of the Bombay Prevention of Ex-Communication Act, 1949 (it is in respect of mode of taking cognizance of offence …. punishable under section 4  ) The respondent No. 1 has specifically contended that he had approached the Collector for seeking permission and the same is granted.

14. Thus, prima facie the order passed by the learned trial Judge in respect of issue of a process is perfectly legal and correct and no interference is called for. The Criminal Application is hereby dismissed by discharging Rule. Parties are directed to remain present in the trial Court on 20-8-1996.

15. Application dismissed.

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