defamation can be filed by person aggrieved not only by person defamed

Excerpt: The decision on the question raised before us turns upon the construction that may be put on the expression “some person aggrieved” in Section 198 Cri P. C. It cannot be laid down as an inflexible rule that the expression “some person aggrieved” will only be limited to the person actually defamed or affected. The section does not say that complaint can only be made by the person defamed. What it requires is that the complaint must be made by ‘some person aggrieved’. In our opinion the expression “some person aggrieved” was not intended to be restricted to the person actually defamed. As was held in Daem Sardar v. Batu Dhali 3 Cal LJ 38, it must be determined in each case according to its own circumstances whether the complainant could be said to be in a legal sense it person ‘aggrieved’ within the meaning of Section 198, Cri. P. C. In that case Mukherjee, J. as he then was, pointed out the distinction between the phraseology of Sections 198 and 199 in this respect in these words

 

The words used are ‘person aggrieved” and not “person defamed”. Moreover, the legislature had used the words “by some person aggrieved” and not “by the person aggrieved”. It appears to me, therefore, that so far as an offence’ of defamation is concerned the complaint may be made not only by the persons defamed but by sorne person aggrieved by such defamation.

Mr. Ghosh refers to the decision in Sajjad Hossain v. Askari Mirza , in support of his

 

Calcutta High Court

Mrs. Pat Sharpe vs Dwijendra Nath Bose on 12 July, 1963

Equivalent citations: 1964 CriLJ 367Author: S NiyogiBench: S Niyogi, R Dutt

ORDER S.K. Niyogi, J.

1. The appellant Mrs. Pat Sharpe is a journalist of some repute and is in the journalistic line for-about quarter of a century. She was a columnist-and made regular contribution for about a year-to a weekly journal published from Bombav, bearing the name “Women’s Own Weekly”. She enjoyed a special status there and in fact a whole age was exclusively reserved in that journal for .her contributions and was styled as “Pat’s Page”. The page devoted her writings was sub-divided into five items, namely, ‘Epigram for the week’, “Candid comments’, ‘Laugh’, ‘Beauty scrap book’ and ‘Cookery nook’. The offending article bearing the heading ‘Bengali’ was published in the ‘Pat’s Page’ of the journal on the 13th of January, 1962, tinder the item ‘Candid comments’. The article contained a scurrilous attack on the Bengalis and the city of Calcutta, The portion of the article which has been conceded by Mr. Pankoj Kumai Ghosh, learned Advocate for the appellant, to be if highly defamatory character, is as follows:

Their proud ‘assertion’ is, I think, based on the fact that Bengal produced India’s only world-poet Tagore. (The only other Bengali ‘hero’ is .Netaji Subhas Chandra Bose, the traitor who was -a. Japanese quisling, but” who nevertheless is honoured annually on the anniversary of his death, as a martyr).

2. The meaning of the word “traitor” as given in the Oxford Dictionary is ‘one who violates his allegiance or acts disloyally (to countryking….)’. The word ‘quisling’ was coined at the time of the last World War No. II and the meaning of the word has been given in the above dictionary as ‘person co-operating with an enemy who has occupied his country’. Quisling was the ‘name of a renegade Norwegian Army Officer who actively co-operated with the invading German -army. The name of Subhas Chandra Bose is held an high esteem and reverence in this part of the -country and renowned all over India as a valiant rghter for the freedom of his country and as the founder of ‘Indian National Army’. To call such a noble son of India as a ‘traitor’ and a ‘quisling’, is the height of impudence and grossly abusive -of the great name.

3. The respondent Dwijendra Nath Bose is the son of the eldest brother of Subhas Chandra Bose. He at first brought an action against N. J. “Hamilton who was at the relevant time the editor, .publisher and printer of ‘Women’s Own Weekly’, Under Section 500 of the Indian Penal Code and process was issued against him by the Chief Presidency Magistrate, Calcutta, on the 7th of February, -1962 under the said section. Mr. Hamilton appeared and pleaded guilty. He expressed his -sincere regret for the publication and was convicted under the section and fined Rs. 200/-.

4. The petition of complaint was filed against Mrs. Pat Sharpe by the respondent Dwijendra Nath Bose on 27-2-62. He stated in his petition that the accused intended by writing the article to defame and harm the reputation of Netaji Subhas Chandra Bose and the publication of the “said malicious and wanton imputation has caused indignation, uneasiness and pain not only amongst Netaji Subhas Chandra Bose’s relations, friends and admirers but also amongst the citizens of Calcutta.”

5. At the time of her examination Under Section 34a, Cri. P. C. the appellant filed a lengthy “written defence. The substance of her defence was that she neither wrote, nor published the article “Bengali’ in the said issue of the journal ‘Women’s Own Weekly’. In course of her journalistic work she sometimes received writings in manuscript from the members of the public on various subjects to be included in her articles contributed to the ‘Women’s Own Weekly’. Some of these communications were signed and some bore no signatures. She. alleged that the portion of the article ‘Bengali’, which referred to Netaji Subbas Chandra Bose was received by her from some anonymous correspondent. She further stated, “It was my piactice to have all handwritten materials typed out for me and the manuscript of the article ‘Bengali’ which has been produced, is a typed copy of the handwritten article which I had received plus a letter on bad driving which had been partly taken from a Calcutta newspaper”. She stated that it was her intention to work up this manuscript for the article of her own to be entitled ‘Are you ciyic minded’, and in so doing she would haye certainly excluded the reference to Netaji Subhas Chandra Bose.

6. It appears from the evidence that Mrs. Pat Sharpe fell seriously ill in the month of December 1961 with an attack of cerebral abscess and menin-gities and was removed while unconscious to the Woodland’s Nursing Home on 10-12-61. She remained unconscious till 14-12-61. During the period of her illness she was under the treatment of Dr. R. E. Solberg. She was removed to her residence on 28-12-61 and was advised to remain in bed. She remained in bed till the middle of January 1962. Her further defence was that during her period of illness and absence from home, her husband, Mr. K. Sharpe, on receipt of urgent communication from Mrs. D’Suza, the editorial assistant of the above journal, for more materials for publication in the ‘Women’s Own Weekly’, went through the desk where she kept her manuscripts and through mistake took out four manuscripts, including the article ‘Bengali’, from a wrong file and despatched the same to the office of the journal at Bombay. It was stated that these articles were not meant for publication.

7. Certain questions of law relating to the maintainability of the application filed by the respondent were also raised before the learned Chief Presidency Magistrate, Those points of law were also raised here and we will deal with the same in the proper place. The learned Chief Presidency Magistrate in a well written judgment overruled the defence contention and held that the charge Under Section 500, IPC had been brought home against the accused.

8. We first of all, deal with the question whether on evidence it can be held that Mrs. Pat Sharpe was the maker of the libellous statements concerning Mr. Subhas Chandra Bose contained in the article ‘Bengali’. Even if it be true, as has been urged on the appellant’s side, that she only typed out from the written materials received by her from person or persons, who remained anonymous, and only gave shape to the article, she would still be held to be the maker of the article. The further fact, as appears from the original document sent to the Bombay Office of the Weekly, that she made corrections and insertions by her own1 hand at places of the article, would also go to show her approbation of what was written there. The learned Magistrate has, however, on an elaborated discussion of the evidence, come to the conclusion that Mrs. Fat Sharpe was alone the real author of the article. On a careful scrutiny of the evidence we are inclined to uphold the finding of the learned Magistrate in this respect.

9-21. (After discussion of evidence “His Lordship concluded:) We, therefore, see absolutely no reason to disagree with the finding of the learned Magistrate that the appellant is the “maker” of the offending article,

22. The next branch of argument of Mr. Ghosh has been that even if she may be the maker of the article ‘Bengali’, it was sent by her husband: without her knowledge and consent on the 15th of December. There is no sufficient evidence to establish that she intended the article to be published in the journal. The statement in Ext. z by Mr. Sharpe that “she had intended to send” the article was bis own conclusion and ha qualified1 his conclusion in this respect by saying, “I am not at all certain about this and can only hope etc.”

23. We agree with the further contention of Mr. Ghosh that in order to constitute an offence Under Section 500, IPC mere making an imputation concerning a person is not enough. It must at; the same time be proved that the writing of the defamatory matter was intended to be read by person or persons other than the person of whom it is written and that it was published. In this respect we do not accept the argument of Mr. Niharendu Dutt Majumdar, the learned Counsel for the State, that what is required Under Section 499, I. P. G. is that the person proceeded against should have been either the maker or publisher of the defamatory matter. So that an offence Under Section 500, IPC may be said to have been committed, the alleged defamatory matter must be communicated to a person or persons other than the person defamed.

24. But from what we have discussed above, it has been abundantly proved that Mrs. Sharpe intended the article to be published in the ‘Women’s Own Weekly’. The allegation that the articles were taken out by Mr. Sharpe through mistake; from the ‘wrong file’ kept in the appellant’s desk is clearly an afterthought. The file was marked WOW and the articles were earmarked for the item ‘candid comments’. The other articles taken out from the second file were meant for the four other items. There is no indication in the numerous- letters written by Mrs. Sharpe to either Mr. Hamilton or Mrs. D’Suza, excepting the: letter (Ext. 32) written by her after she came t6 know that a case had been instigated against I Mr. Hamilton, that the offending article was not meant for publication. As we have seen above, she came to know about the despatch of the articles, including the article “Bengali”, by her hudband long before it was published in the journal on the 13th of January. 1062. No steps were taken by her to withhold the article from publication. On the other hand, as appears from what we have discusssd above, she had full approval to the publication of the offending article in trie journal. Mr. Ghosh’s contention has been that trie ratification, if any of the action of hot husband by Mrs. Sharpe subsequent to the publication of the offending article, will not make it her own publication. It, however, appears that by her letter dated 2-1-62, addressed to Mrs. D’Suza, to which reference has already been made, she in effect approved of the articles despatched by her husband. She, on the other hand, asked Mrs. D’Suza if she herself approved of the article by writing in a letter “Let me know if it’s all O. K.” So there Is no substance in this contention of Mr. Ghosh.

25. Mrs. D’Suza admits that she sent the article to ths press knowing it to be defamatory and that the appellant feels aggrieved that the editorial staff did not apply scissors by excluding the offending portion before publishing the article. Mrs. D’Suza. however, has said that she had no authority to do so in respect of the article sent by Mrs. Sharpe. Mr. Hamilton also says that he gave instruction to Mrs. D’Suza not to alter her manuscript on the insistence of Mrs. Sharpe herself. Any how, Mrs. Sharpe cannot now be allowed to take shelter under such a plea.

26. Mr. Ghosh next contended that the complainant was not competent Under Section 198, CrIPC to institute criminal proceedings as a person aggrieved by the alleged offence within the meaning of that section. His argument has been that only person defamed can be said to be the person aggrieved and Section 198 bars cognizance being taken by the Court in respect of an offence falling under Chapter XXI of the Indian Penal Code, which also deals with tie offence of defamation, upon a complaint made by any person other than the person aggrieved. There is no proof that Netaji Subhash Chandra Bose is dead and the Court in the circumstance, had no jurisdiction to take cognizance of the alleged offence upon the complaint of the respondent.

27. The decision on the question raised before us turns upon the construction that may be put on the expression “some person aggrieved” in Section 198 Cri P. C. It cannot be laid down as an inflexible rule that the expression “some person aggrieved” will only be limited to the person actually defamed or affected. The section does not say that complaint can only be made by the person defamed. What it requires is that the complaint must be made by ‘some person aggrieved’. In our opinion the expression “some person aggrieved” was not intended to be restricted to the person actually defamed. As was held in Daem Sardar v. Batu Dhali 3 Cal LJ 38, it must be determined in each case according to its own circumstances whether the complainant could be said to be in a legal sense it person ‘aggrieved’ within the meaning of Section 198, Cri. P. C. In that case Mukherjee, J. as he then was, pointed out the distinction between the phraseology of Sections 198 and 199 in this respect in these words:

For whereas Section 199 allows a complaint of an offence Under Sections 497 and 498 to be preferred only by the husband of the woman, of in his absence by some person who had care of her on his behalf. Section 198 allows a complaint of an offence specified therein and therefore of an offence Under Section 494 to be preferred by any person aggrieved thereby.

The answer to the question, as he further observed, must depend on the nature of the offence and special’ circumstances of each case. In Thakur Das v. Adhar Chandra ILR 32 Cal 425, the view was taken that where imputations were- madle against the character of a widowed Hindu lady, the brother, with whom she was residing, was a person aggrieved w.thin the meaning of Section 198 (see also Dwijendra Nah Talukdar v. Makhon Lai Pramanik , .Surajmal v. Ramnath 28 Cri LJ 996.. : AIR 1928 Nag 5J and Uanru Ram Ramkumar v. Rambarau Thakuri .

28. In our view where the person defamed is an adult and a male and is not incapacitated by physical infirmities or otherwise incapable of attending the Court, no other person should be held to be competent to make a complaint Under Section 500. But where the whereabouts of the person defamed are not known or he has not been heard of for a long time or is not readily available to make a complaint o respect of the ofience and the complainant, as in this case, is his near relation, who lived in the same family and in joint mess with him, suffered incarceration for a number of years in the cause held dear by the person defamed and the alleged defamatory article challenges and castigates his life’s work, he should be held to be a person aggrieved within the meaning of Section 198 and competent to make a complaint in respect of the offence.

29. We get from evidence that late Satish Chandra Bose, the father of the complainant Dwijendra Nath Bose, was the head of the joint family of which Netaji Subhash Bose was a member. Dwijendra Bose was a sincere follower of Netaji and suffered imprisonment in the fight for freedom of India under Netaji’s lead. Netaji disappeared from Calcutta sometime in the month of January, 1941 under dramatic circumstances and he reappeared sometime after in the South-East Asia where he assumed leadership and organised the Indian National Army, known as the ‘I.N.A.’, which waged war against the British with Netaji at its head. Dwijendra Bose would have been one of the first persons to hear of Netaji Subhas Bose had he been alive at this date. He has stated in his evidence “I don’t know where is Netaji now. I have not heard about him since 1945.” His evidence in this respect has not been disputed by the defence. Mr. Ghosh lays stress on his evidence where he says, “I hope he is alive. My personal faith is that he is alive” and argues that the death of Netaji cannot be said to have been proved. We are however, of the opinion, that in view of the evidence that Subhash Chandra Bose has not been heard of for much more than seven years by those who would naturally have heard of him, had he been alive, the presumption Under Section 108 of ths Evidence Act will be that he is dead. The burden will be on the other side to rebut the presumption. The presumption has not been rebutted in this case.

30. Lalchand Marwari v. Ramrup Gir 53 Ind App 24 : AIR 1926 PC 9, relied on by Mr. Ghosh, only lays down that there is no presumption Under Section 108 of the Evidence Act that a person who has not been heard of for seven years, died at the end of the first seven years or at any particular date. Similar view was expressed by this Court in In the goods of Gaaesh Das Aurora, 43 Cal LJ 578: AIR 1926 Cal 1056. But the date of death of, Netaji is not an issue in this case,

31. Under Explanation I to Section 499 of. the Indian Penal Code, imputation against a, deceased person of such a character as would harm, the reputation of that person if living and was intended to be hurtful to the feelings of his family or other near relatives, would amount to defamation. The complainant has stated that he had been intensely hurt and aggrieved by the defamatory article published in the ‘Women’s Own Weekly’.

32. We accordingly, hold that the complainant is a person, aggrieved within the meaning of Section 198 and he is entitled to make the: complaint Under Section 500, IPC

33. Mr. Ghosh has also urged that in the petition of complaint the complainant had simply asked for process Under Section 500, IPC against the appellant and there was; no complaint as required Under Section 198. But on a perusal of the petition of complaint we agree with the learned Magistrate that this contention of Mr. Ghosh is frivolous and must be rejected. Charga Under Section 500, IPC was framed against the accused on evidence recorded after cognizance-and not on a mere perusal of the contents of the petition of complaint.

34. So, the appeal preferred by Mrs. Pat Sharpe must be dismissed and we maintain her conviction Under Section 500, IPC Mr. Ghosh has also addressed us on the question of sentence. We have been unable to find any mitigating circumstance in her favour. The article ‘Bengali’ in. which the defamatory imputations against Netaji Subhash Chandra Bose appear, reveals an extremely perverted mind of the writer. The article not only contains misquotation and misinformation but at places it is full of sordid details and obscenities. It is difficult to conceive that any person with decent education could have written such obnoxious things. The imputations to Netaji were highly scurrilous and defamatory. We also note that Mrs. Sharpe does not appear to be sincerely repentant for what she had written and no unconditional regret was expressed by her. We, therefore, agree with the learned Magistrate that a deterrent sentence is called for in this case. We, however, think that an imposition of fine-of Rs. 1000/- will be a sufficiently deterrent sentence in this case and we remit the sentence of imprisonment for the period of two months passed against her. In default of payment of the fine-she will however, undergo simple imprisonment for two months. With this modification in the sentence, the appeal is dismissed.

R.N. Dutt, J.

35. I agree with the order proposed by my Lord but I should like to add a few words .of my own.

36. I need not recite the facts over again. I straightway come to the points raised by Mr. Ghosh on behalf of the appellant.

37. Mr. Ghosh argues that the learned Chief Presidency Magistrate had no jurisdiction to try or convict the appellant inasmuch as cognizance taken by him of the offence, said to have been committed by her, is illegal. The appellant is said to have defamed Netaji Subhas Chandra Bose. Mr. Ghosh submits that the complainant has failed to prove that Netaji Subhas Chandra Bose was dead at the time when the article in question was published and as such Netaji should be considered to have been alive at that time. And since Netaji was alive, he is the person ‘defamed’ and in view of Section 198 of the Code of Criminal Procedure the complaint can only be filed by Netaii himself. But the complaint on the basis of which the learned Magistrate took cognizance of the offence was actually filed by one Dwijendra. Nath Bbse said to be a nephew of Netaji. Mr. Ghosh iargues ‘that the learned Magistrate was not conipetent to take cognizance of the offence on the basis of a complaint filed by the said Dwijendra Nath Bose. It is tme that the article in question has defamed Netaji but the complaint on the basis of which the learned Magistrate took cognizance was not filed by him. Let me first assume that it has not been proved that Netaji was dead at the time when the article in question was published or in other words let me assume that Nftaji was alive at that time. Section 198 of the Code of Criminal Procedure states that no Court shall take cognizance of an oflence of defamation except upon a complaint made by “some person aggrieved by such offence”. Mr. Ghosh contends that the words “person aggrieved” mean ”person defamed” and as such no person other than Netaji himself was competent to file the complaint. The words used are ‘person aggrieved” and not “person defamed”. Moreover, the legislature had used the words “by some person aggrieved” and not “by the person aggrieved”. It appears to me, therefore, that so far as an offence’ of defamation is concerned the complaint may be made not only by the persons defamed but by sorne person aggrieved by such defamation.

Mr. Ghosh refers to the decision in Sajjad Hossain v. Askari Mirza , in support of his contention. It appears, however, that K. C, Chunder, J. did not decide in that case that no person except the person defamed can in view at Section 198 of the Code, make a complaint. He quashed the proceedings in that case on the ground that no complaint in accordance with the definition of ‘complaint’ as given ;in the Code of Criminal Procedure was filed. This case, therefore, is no authority in support of Mr. Ghosh’s contention.

Mr. Ghosh then refers,to Hussainbhoy Ismailji v. Emperor reported in 156 Ind Cas 567 : AIR 1926 Sind 98. There in that case the person defamjed was the High Priest of a community. The domplaint was filed by a member of the com-munitjy. It was held that the mere fact that the feelings of the complainant have been injured in consequence of a defamatory statement made against his religious head affords him no ground to prosecute the accused for defamation. Rupchand A.J.C. however expressly stated in that case that the person defamed was not always person aggrieved. It will thus appear that this case : in a way negatives Mr. Ghosh’s contention that ‘the words “person aggrieved” mean “person defatted”.

Mr. Ghosh then refers to Jagdish Narain v. Sharrts Ara Begam reported in AIR 1935 Oudh 6. That was a case where a woman was defamed and; the case came under the first proviso to Section 19S of the Code and it was held that the cognizance taken was bad as the requirements of that proviso were not observed. That the words “person aggrieved” do not always mean “person defamed” will also be clear from the definition of defamation itself as contained in Section 499. Explanation 1 to the definition states that imputation against a deceased person may also amount to defamation. If the words “person aggrieved” always meant “person defamed”, in case of defamation of a dead person, it would be only competent for the dead person to make a complaint. That is an absurd result which can never have been contemplated by the Legislature. I cannot accept an interpretation which will lead to such absurdity. I hold, therefore, that the words “person aggrieved” do not always mean “person defamed”. The words ‘person aggrieved’ has a wider connotation than the words ‘person defamed’ and the addition of the word “some” before the words “person aggrieved’ supports this wider connotation. Dwijendra Nath Bose is a nephew of Netaji. He was a to worker with him and the imputation affects not only Netaji but his co-workers and in fact the whole family. I hold, therefore, that Dwijendra Nath Bose is a person aggrieved within the meaning of Section 198 of fie Code of Criminal Procedure and as such even I though it be assumed that Netaji was alive at the time of the publication of the article in question, the complaint made by Dwijendra Nath Bose was competent and the cognizance taken by the learned Magistrate on the basis of this complaint was legal. This finds support in the decision and . Handerson, J. held in the former case that Section 198 of the Code does not say that the complaint, in a case of defamation, can only be made by the ‘person defamed.’

38. There is one other aspect of this question. I have so long assumed that Netaji was alive; at the time of publication of the article. I cannot, however, agree with the submission of Mr. Ghosh that the complainant has failed to prove that Netaji Subhas Chandra Bose was not alive at the time when the article in question was published. He has said in his evidence that Netaji Bose has not been heard of since 1945, Section 107 of the Indian Evidence Act states that when the question is whether a man is aliye or dead and it is shown that he is alive within 30 years the burden of proving that he is dead is on the person who affirms it. Section 108 of the Indian Evidence Act provides a rider and states that when the question is whether a man is alive or dead and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if. he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. Here Dwijendra Nath Bose is a person who would have naturally heard of Netaji if he had been alive. He has said that Netaji has not been heard of since 1945. A presumption Under Section 108 of the Indian Evidence Act, therefore, arises that Netaji is dead. Mr. Ghosh refers to the case of Ganeshdas Aurora reported in 43 Cal LJ 578 :. AIR 1926 Cal 1056 and argues that three is no presumption that Netaji died on a particular date. He is certainly correct is that submission but here we are not concerned with the actual date of death of Netaji but we are concerned with whether Netaji was dead or alive on the day when, the article in question was published. Obviously, Netaji is not being heard of for more than 7 years before that date. It is, thus clear that the presumption that Netaji was dead had already arisen and was effective on that date. It may, therefore, be safely presumed that Netaji was dead on the day the article in question was published. The case thus comes under explanation of Section 499 of the Indian Penal Code and Dwijendra Nath. Bose, as a member of his family and as a person aggrieved, is competent to make the complaint. Mr. Ghosh argues that there can be no conviction in a criminal case on the basis of a presumption. He refers to what may be called a rule of prudence that a person should not be convicted on the basis of a presumption but here the presumption that is being made has no connection with the allegations of facts made against the appellant. It has connection with the question about the legal competence of the cognizance taken by the learned Magistrate, Such presumption in law can be made to find jurisdiction of the learned Magistrate to try the case. Thus in any view of the matter the argument of Mr. Ghosh on this point fails in its entirety and I hold that the cognizance taken by the learned Magistrate was legal and the trial and conviction of the appellant is not without jurisdiction.

39. The allegation against the appellant is that she has defamed Netaji by describing him as ‘traitor’ and ‘quisling’. Mr. Ghosh submits that he will not dispute that the words used are defamatory. If Netaji is alive, there is no doubt that the imputation made against him was intended to harm or that the appellant knew or had reason to believe that such imputation would harm Netaji’s reputation. The imputation, therefore, does amount to defamation. Even if Netaji is dead, it is defamation because the imputation would have harmed his reputation if alive and the imputation must be said to have been intended to be hurtful to the feelings of his family or other near relatives, Thus in any view of the matter the words used do amount to defamation.

40. Mr. Ghosh then submits that the appellant is not the maker of the article in question. The article was published in a Weekly journal “Women’s Own Weekly”. The journal is published from Bombay. It contains a page known as ‘Pat’s page’. The appellant contributes all that is published in that page. The appellant’s case is that she is widely known as the contributor of ‘Pat’s page’ and people desiring to have some topics discussed in ‘Pat’s page’ used to send articles or matters to the appellant and the appellant used to work on those articles or matters and prepare her contributions to ‘Pat’s page’. Portions of the article in question were received by her in this way in hand-written form and she had it typed and corrected and she kept it on her table with a view to work it out into a contribution of her own to be published in the Pat’s page. But suddenly she fell seriously ill and she was admitted in Woodland’s Nursing Home and her husdand without reference to her sent the article to Women’s Own Weekly at Bombay.

It is argued that the appellant is thus not the maker of the article as published. It will however appear from her husband’s evidence that ‘ he found 4 articles including the article in question in one cover and he sent all of them to be published in Pat’s page in four successive issues. These articles were to be published under the heading “Candid comments”. This is the main heading and the other headings contained short articles or comments. Her husband found some other short articles or comments in a separate cover. He sent some of them along with these four of ‘Candid comments’. It would appear from the manner in which these articles were sorted out and kept in separate covers that the appellant before she got ill had finally worked out these articles intending them to be published. The manuscript of the article as sent to Bombay, itself contains evidence that the appellant had herself corrected it and thereby finalised it for publication. It does not appear that she intended to work on it further. Moreover, she made out this case for the first time after she came to know that a criminal case had been started against the Editor of the journal for publishing this article.

The case against the Editor was started of February 7, 1962 and she made out this case for the first time on February 11, 1962 in her letter to the Editor. The article was published on January 13, 1962. The Editor wrote to the appellant on January 22, 1962 that the article in question had provoked protests. The Editor wrote two further letters to the appellant on January 30 and 31, 1962. The appellant replied to these letters and took full responsibility for the article in question as the maker of it. She even said that she was prepared to take the consequences and to prove that what she had written was not defamation. She herself eulogised her own independence as a journalist and informed the Editor that she had the courage of her conviction and was fearless in expressing her conviction. She even sent a defence to the Editor for publication but since the case against the Editor was started she sent a wire stopping the publication of the defence. Upto February 7, 1962 she did not disclaim that she was the maker of the article but on the other hand assumed full responsibility as the maker of the article. It appears however that all courage and independence vanished as soon as j. she learnt of the case against the Editor and when she was made the accused she made out the case denying that she was the maker. The case made at the time of trial has to be testsd in the light of her conduct before the complaint was filed and when tested in that light I have no hesitation in my mind that tins present case was cooked up just to avoid criminal liability. On a considerate on of all these I hold that the appellant is of naker of the article in Question.

41. Mr. Ghosh lastly submits that the appellant was not responsible for the publication of the article, I have said that the article was publ shed In the Journal “Women’s Own Weeklv” on January 13, T962. The appellant examined Dr. Solberg as one of ‘her witnesses. It appears from his evidence that the appellant fell seriously ill on December 10, 1961, became unconscious and was admitted in Woodland’s Nursing Home and remained unconscious upto December 14, 1961. Mr. Ghosh argues that the husband f the appellant without reference to her sent the article in question along with scjme other articles to Women’s Own Weekly by registered post on December 15, 1961 and the article got published without her knowledge or consent Dr. Solberg has said that the appellant became unconscious with cerebral feyer on December 10, 1961 and she was admitted in Woodland’s Nursing Home that very day and was discharged on December 28, 1961. He has further said that the appellant was unconscious upto December 14, 1961. She was allowed visitors after December 18, 1961 but before that, her husband only was allowed to See her. The article in question was sent by registered post by her husband on December 15, 1961. The appellant was unconscious upto December 14, 1961. It was, therefore, not possible to have her consent till December 14, 1961, It is j list possible that her husband might have seen her in the Nursing Home on December 15, 1961 before the article was sent but still in view of the Appellant’s 1ndition on that day, I think, it was not possible for her husband to have consulted the before he actually sent the article in question to Bombay. Some more articles were sent by the appellant’s husband on December 18 or 19, 11961. The appellant’s husband has said that he told his wife about sending of articles on December 17 or 18, 1961. It will thus appear that at least on December 17 or 18, 1961 the appellant had come to know that her husband had sent the article in question to Bombay, for publication. Mr. Ghosh argues that the appellant’s husband sake to her on December 17 or 18, 1961 about the further articles to be sent but he did not inform the appellant that he had sent the article in question. He does net specifically say in his evidence that he spoke to his wife on December 17 for 18, 1961 only about the further articles to be spnt. Moreover it must be said that when the appellant’s husband spoke to her about the further articles to be sent he must have told her about the articles already sent, otherwise she would not be ;in a position to properly advise her husband about the further article to be sent. Obviously, therefore, it must be held that at least on December 17 or 18, 1961 the appellant came to know that the article in question has been sent to Women’s Own Weekly for being published in ‘Pat’s page’. Then again, she came back to her house on December 28, 1961. She wrote a letter to one Mrs. D’Souza, an Assistant Editor of the journal pa January 2, 1962. The appellant states in this letter that before she went to the Nursing Home she had sorted out her articles in weekly instalments. This letter also reveals that she was aware of the fact that the articles sorted out by her had been sent to the journal and she wanted to be assured that it was all O.K. She was then back in; his house and it is unthinkable that she would write like that without ascertaining what articles had been sent by her husband. It is all very easy now to say that she did not know before the; actual publication that her husband had sent the article in question. Bat her denial is to be tested in the light of probabilities and I have no hesitation in believing that the appellant knew on December 17 or 18, 1961 or at least before January 2, 1962 that her husband had sent the article for publication in the ‘Pat’s page’ as her contribution. Had she not been the maker of the article and had not she intended that the article should be published, she would have stopped its publication. The appellant must therefore be held to have intended publication of the article and to have been responsible for the publication.

42. The people of this country remember Subhas Chandra Bose as their ‘beloved Netaji’. By describing him as a ‘traitor’ or a ‘quisling’ the appellant has only disgraced herself.

43. This has no doubt hurt the feelings of the people of this country but their esteem and affection for Netaji will, it is hoped, remain unaffected even in spite of such unfortunate outbursts.

Sanjay Mishra vs Govt.Of Nct Of Delhi &Anr

Excerpt: Thus, it is clear that the mens rea to cause harm is the most essential sine qua non for an offence under section 499 IPC. 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. An offence punishable under section 500 IPC requires blameworthy mind and is not a statutory offence requiring no mens rea.

The replication filed in the Court forming part of judicial record, is a public document and thus pleadings amount to publication of the defamatory statements made by the petitioner.

For criminal purposes “publication” has a wider meaning than it has in civil law, since it includes a communication to the person defamed alone. The prosecution for defamation in criminal cases can be brought although the only publication is to the person defamed as it is very likely to provoke a breach between the persons involved

 

 

 

 

Delhi High Court

Sanjay Mishra vs Govt.Of Nct Of Delhi &Anr. on 23 March, 2012

Author: M. L. Mehta

     *               THE HIGH COURT OF DELHI AT NEW DELHI

     +                              CRL.M.C. No.3350/2008

                                                 Date of Decision: 23 .03.2012

     SANJAY MISHRA                                         ...... PETITIONER
                             Through:      Mr. J.C. Mahendru, Advocate with
                                           petitioner in person.

                                        Versus

     GOVT.OF NCT OF DELHI &ANR.           ...... RESPONDENTS
                     Through: Ms. Fizani Husain, APP for State
                              Mr. Bijender Singh, Advocate for R-
                              2.

     CORAM:
     HON'BLE MR. JUSTICE M.L. MEHTA


     M.L. MEHTA, J.

1. This is a petition under Section 482 Cr.P.C. for quashing of the Complaint under Section 500 IPC in Case No. 1832/1 and proceedings emanating thereof, pending before the Ld. M.M. The petitioner was summoned in the case on 09.03.2007 and the case is at the stage of post summoning evidence.

2. The complaint was filed against the petitioner by the respondent no. 2 who is his mother-in-law. The petitioner had filed a petition for divorce against his wife i.e. the daughter of respondent no.2. The said divorce case already stands dismissed. Allegedly in the rejoinder and additional submissions to the written statement filed by his wife in the divorce case, the petitioner had made some serious allegations about the character of the respondent no.2 and his wife.

3. The criminal complaint of defamation is sought to be quashed by the petitioner on the ground that the Ld. M.M. has not appreciated the facts of the case and the publication of the alleged defamatory statements made by the petitioner. The learned counsel for the petitioner submitted that the pleadings made in all the cases are confidential and since the proceedings are held in camera, there was no question of the respondent no.2 and his wife being defamed. It is contended that the said criminal complaint has been filed by respondent no.2 against him as a counterblast to the divorce case filed by him.

4. Per contra, the learned counsel for the respondent submitted that the imputations made by the petitioner in his replication and additional submissions are an attack on the chastity of respondent no.2 and her daughter. It is further submitted that the allegations made by the petitioner are a direct attack on the entire family of respondent no.2 and is extremely damaging to the reputation of her family and are not only false and frivolous, but defamatory, libelous and derogatory. It was submitted that the order of Ld. M.M. was based on the material on record and statements of the witnesses and should not be interfered with.

5. I have heard leaned counsel for the petitioner as well as the respondent and perused the record.

6. The criminal law on defamation has been codified and is contained in section 499 to 502of the Indian Penal Code. For an offence of defamation as defined under section 499 IPC, three essential ingredients are required, to be fulfilled as laid down in the case of Standard Chartered Bank v. Vinay Kumar Sood, 2010 CriL.J 1277:-

i. Making or publishing any imputation concerning any person;

ii. Such imputation must have been made by words either spoken or intended to be read or by signs or by visible representations.

iii. 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”.

7. Thus, it is clear that the mens rea to cause harm is the most essential sine qua non for an offence under section 499 IPC. 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. An offence punishable under section 500 IPC requires blameworthy mind and is not a statutory offence requiring no mens rea.

8. From the perusal of the replication and additional submissions made by the petitioner in the divorce proceedings, it is seen that the averments made by the petitioner were in fact highly defamatory and injurious to the image and reputation of the respondent no.2 and her daughter. There are allegations that the respondent is a woman of shady character and is involved in prostitution along with her daughter and this is the reason that the marriage of the petitioner and daughter of the respondent could not work. There are serious attributions made by the petitioner that this respondent/complainant was involved in extra marital affairs and it was the cause of death of her husband. Many more such distasteful remarks have been made by the petitioner against the entire family of respondent no.2 and it is not desirable to quote them in detail, considering their defamatory and scandalous disposition. Thus, there can not be any dispute regarding the defamatory overtone of the replication filed by the petitioner. Consequently, the submission of the counsel for the petitioner that the Ld. M.M. had proceeded in the case without appreciating the material on record, is baseless and stands rejected. It is evident that the Ld. M.M. had given due consideration to the scandalous and wild allegations made by the petitioner and has rightly proceeded in the matter. It is regretful that such defamatory remarks are passed by the petitioner against his mother in law i.e. respondent no.2 and her family without any regard, whatsoever to the dignity and morality of women.

9. The contention of the counsel for petitioner that the criminal case for defamation is filed as a counter to the divorce case, is also untenable as it is clear that there were sufficient reasons for filing of this complaint. No respectable women could accept such outrageous and disgraceful remarks made against herself and her family by any person, particularly son-in-law, and not take a suitable action in this regard.

10. With regard to the contention of the counsel for the petitioner that the pleadings made in all the cases are confidential and the proceedings were held in camera and hence there was no question of the respondent no.2 and her daughter being defamed, it would suffice to say that the legal proposition in this regard is settled. The replication filed in the Court forming part of judicial record, is a public document and thus pleadings amount to publication of the defamatory statements made by the petitioner.

11. In Sandyal v. Bhaba Sundari Debi 7 Ind. Cas.803 : 15 C.W.N.

995 : 14 C.L.J. 31 the learned Judges, following the case of Augada Ram Shaha V. Nemai Chand Shaha 23 C. 867;12 Ind. Dec. (n.s.) 576, held that defamatory statements made in the written statement of a party in a judicial proceedings are not absolutely privileged in this country, and that a qualified privilege in this regard cannot be claimed in respect of such statements, unless they fall within the Exceptions to Section 499 of the Indian Penal Code. Undisputedly, the case of the petitioner was not in any of these Exceptions.

12. For criminal purposes “publication” has a wider meaning than it has in civil law, since it includes a communication to the person defamed alone. The prosecution for defamation in criminal cases can be brought although the only publication is to the person defamed as it is very likely to provoke a breach between the persons involved. Moreover, it is recorded by the trial Court that the petitioner has made these kinds of allegations to the relatives and friends of respondent no.2 and her family via telephone also, thereby lowering their reputation in the society. Consequently, it cannot be said that there was no publication of the defamatory statements made by the petitioner.

13. On perusal of the evidence on record and statements of witnesses, I am of the opinion that the case cannot be thrown out at its inception when there is enough evidence pointing towards the prima facie commission of the offence by the petitioner. Thwarting the prosecution case which is in its nascent stage would tantamount to miscarriage of justice. Similar issue was raised in M.N.Damani Vs. S.K.Sinha, AIR 2001 SC 2037. In this case, the petitioner had gone in appeal against the order of High Court quashing the criminal complaint filed by the petitioner under Section 500, 499 IPC. Allowing the appeal, the Apex Court opined that the High Court at preliminary stage cannot say that there was no reasonable prospect of conviction resulting in the case after trial. It was held that questions that whether the imputations were made in good faith, in what circumstances, with what intention etc. are to be examined on the basis of evidence in trial. It was further held that quashing of complaint at preliminary stage is not proper; when from the sworn statements and documents produced by the petitioner a prima facie case can be said to have been made out against the respondent.

14. The powers of High Court under Section 482 CrPC are to be exercised sparingly and not as a matter of routine. Inherent powers of High Court under Section 482 CrPC are meant to add ex debita justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of court. In Janata Dal Vs. H.S.Chowdhary, (1992) 4 SCC 305, the Supreme Court observed that in what circumstances the inherent powers should be exercised:

“132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles”.

15. Further, in B.S.Joshi Vs. State of Haryana, (2003) 4 SCC 675, the Supreme Court reiterated the legal position that the Court’s inherent powers have no limit, but should be exercised with utmost care and caution. Inherent powers must be utilized with the sole purpose to prevent the abuse of the process of the court or to otherwise secure the ends of justice.

16. In the light of the above judicial pronouncements and the facts and circumstances of the case, I do not find any illegality or impropriety in the order of the trial Court and the proceedings of the criminal complaint case against the petitioner.

17. Petition being without any merit is hereby dismissed.

M.L. MEHTA, J.

MARCH 23, 2012 akb

Bai Shanta vs Umrao Amir Malek

Bombay High Court

Bai Shanta vs Umrao Amir Malek on 5 October, 1925

Equivalent citations: AIR 1926 Bom 141

Author: Fawcett

JUDGMENT Fawcett, J.

1. The petitioner Bai Shanta, a married Brahmin woman, residing at Umreth, made a complaint against one Umrao Amir in the Court of the Second Class Magistrate, Thasra, under Section 354, Indian Penal Code, for assaulting her with intent to outrage her modesty. The accused Umrao, when examined by the Magistrate under Section 342, Criminal Procedure Code, put in a written statement, alleging that he had connexion (i.e., immoral relations) with Bai Shanta for about a year and a half. He cited witnesses, who supported this allegation in their evidence in Court. The Magistrate disbelieved the defence and convicted Umrao, sentencing him to pay a fine of Rs. 151. Thereupon Bai Shanta brought a complaint in the Court of the Resident First Class Magistrate, Nadiad, against Umrao (Opponent No. 1), his four witnesses in the previous criminal case (Opponents Nos. 2, 3, 5 and 6) and Opponent No. 4, a neighbour of Umrao, under Sections 500 and 506, Indian Penal Code, i.e. for defamation and criminal intimidation. She alleges that, while the case was pending, they threatened that, unless she withdrew the complaint, they would make a charge against her that would seriously prejudice her reputation; and that as she did not comply, they contrived to defame her in the manner already mentioned. She says her reputation has grievously suffered, people laugh at her, and she fears that, until she is re-habilitated by proceedings against the accused for defamation, her husband will not resume marital relations with her.

2. The First Class Magistrate, after issuing notice to the opponents in regard to the charge under Section 500, Indian Penal Code, dismissed her complaint under Section 203, Criminal Procedure Code, holding that Umrao was protected by Exception 9 to Section 499, Indian Penal Code, and the witnesses had made relevant statements, which were protected under the view taken by some of the High Courts.

3. On revision, the Additional Sessions Judge refused to interfere with the order of the Magistrate dismissing the complaint under Section 500, Indian Penal Code but directed him to dispose of the complaint under Section 506, Indian Penal Code, according to law.

4. Bai Shanta now applies to this Court, asking that the Magistrate’s order of dismissal be also reversed in regard to the charge under Section 500, Indian Penal Code. We have heard all the parties, except Opponent No. 2, who has not been served. The petitioner has agreed, to drop her, and her name should be struck out accordingly. Of the remaining five opponents, No. 4 is not alleged to have made any defamatory statement before the Second Class Magistrate, Thasra. We are, therefore, only concerned with Opponents Nos. 1, 3, 5 and 6. The oral and written statements of Opponent No. 1. Umrao, and the depositions of the other three opponents, have been translated. Umrao’s statement was clearly relevant for the purposes of his defense, and not an unnecessary and uncalled for attack on the person defamed, of the kind referred to in Dinshaji Edalji v. Jehangir A.I.R. 1922 Bom. 381 and Haidar Ali v. Abru Mia [1905] 32 Cal. 756, so as to take such statement outside rulings like those in Queen-Empress v. Babaji [1892] 17 Bom. 127 and Queen-Empress v. Balkrishna Vithal [1893] 17 Bom. 573. The other three have made direct relevant statements supporting Umrao’s allegation against the petitioner. The question, therefore, arises whether we should follow the view that a party or a witness is absolutely protected from prosecution for defamation, apart from the provisions of the Indian Penal Code on the subject (as has been held by the two lower Courts) or the view that the provisions of the Code must be followed and the Court cannot engraft thereon exceptions derived from the Common Law of England or based on public policy.

5. It is unnecessary to go into a detailed discussion of the case-law on the subject. A full examination of it will be found in the judgment of Mookerjee, Acting, C.J., in Satish Chandra Chakravarti v. Ram Dayal De [1920] 48 Cal. 388. As regards the case of witnesses like Opponents Nos. 3, 5 and 6, we could, of course, follow the view taken in the two Bombay cases already mentioned, although personally, I prefer the contrary view taken by Mookerjee, J. But our attention has been drawn to the fact that in Criminal Application for Revision No. 336 of 1907, Chandavarkar and Knight, JJ., referred to a Full Bench the question whether statements made by a witness in a judicial proceeding render him liable to prosecution for defamation under Section 499, Indian Penal Code. The referring judgment is reproduced in a foot-note at p. 1087 of Ratanlal’s “Law of Crimes,” 9th Ed. It refers to the doubts expressed by other Judges of this Court as to the soundness of the view taken in Queen-Empress v. Babaji [1892] 17 Bom. 127 and Queen-Empress v. Balkrishna Vithal [1893] 17 Bom. 573 in favor of the absolute privilege of a witness, as regards prosecution under Section 500,Indian Penal Code. I believe I am correct in saying that that view has; not been taken elsewhere in India, except in Madras. The reference to the Pull Bench in 1907 fell through; owing to the parties having compounded the case before the reference came on for hearing, In the circumstances I think, a similar reference should be, made in the present case.

6. The question has been raised before us-whether, in any case, the proviso to Section 132, of the Indian Evidence Act does not protect Opponents Nos. 2, 5 and 6 from prosecution under Section 500, Indian Penal Code. This enactment only protects are answer to a question which a witness is “compelled” to give. In Emperor v. Chatur Singh [1920] 43 All. 92 it was held by Tudball, J., that an answer given by a witness in a criminal case on oath to a question put to him either by the Court or by counsel on either side especially when the question is on a point, which is relevant to, the case, is within this protection, whether or not the witness has objected to the question asked him. A similar view was taken by Walsh, J., in Emperor y. Ganga Sahai [1920] 42 All. 257. On the order hand in Queen v. Gopal Doss[1881] 3 Mad. 271 (F.B.); Queen-Empress v. Moss [1893] 16 All. 88; and Kallu v. Sital [1918] 40 All. 271; it was held that to get the protection afforded by Section 132 of the Indian Evidence Act, the witness must show that he asked to be excused from answering the question and the Court obliged him to answer it. This view was adopted by a majority in Queen-Empress v. Ganu Sonba [1888] 12 Bom. 440 as also by Shah, J., and Hay ward, J., in Emperor v. Gunna . But having regard to the difference of judicial opinion on the point, I think it should also be referred to the Pull Bench for specific decision.

7. As regards an accused person like Opponent No. 1, he cannot be prosecuted for giving false evidence in respect of his answers to the Court under Section 342, Sub-section (2) and (4); so the argument based on the liability of a complainant or witness to such punishment does not apply. In Nathji Muleshver v. Lalbhai Ravidat [1889] 14 Bom. 97 the Court left open the question of the liability of a party to a judicial proceeding to criminal prosecution for defamation. The ruling in Emperor v. Esufalli Abdul Hussein [1918] 20 Bom. L.R. 601 does not touch the question of absolute privilege, apart from the protection afforded by the exceptions to Section 499, Indian Penal Code. There appears to be no direct ruling of this Court on the subject, and it is doubtful how far the view taken in Queen-Empress v. Babaji [1892] 17 Bom. 127 and Queen-Empress v. Balkrishna Vithal [1893] 17 Bom. 573 should be held applicable to an accused person. Some of the arguments are equally applicable, while others are not. There is also a difference of judicial authority on the point. The Madras High Court has held in In re Venkata Reddy [1912] 36 Mad. 216, that the statement of an accused person under 8. 342, Criminal Procedure Code, is absolutely privileged. the Calcutta High Court in Satish Chandra Ghakravarti v. Ram Dayal De [1920] 48 Cal. 388 have held the contrary the Allahabad High Court and the former Chief Courts of the Punjab and Lower Burma seem to have taken the same view as the Calcutta High Court : See the cases cited in foot-notes 9 and 10 at p. 1090 and foot-note 1 at p. 1091 of Ratanlal’s “Law of Crimes,” 9th Ed. the latter decisions are opposed to the reasoning on which Queen-Empress v. Babaji [1892] 17 Bom. 127 and Queen-Empress v. Balkrishna Vithal [1893] 17 Bom. 573 are based. I think, therefore this point should also be referred to the Pull Bench. 1 would accordingly refer the following questions:

(1) Whether relevant statements made by a witness on oath or solemn affirmation in a judicial proceeding are absolutely protected from being made the subject of a prosecution for defamation under Section 500, Indian Penal Code, on grounds of public policy or exceptions derived from the Common Law of England, apart from the provisions of Section 499, Indian Penal Code?

(2) Whether such statements can be held to be protected by the proviso to Section 132 of the Indian Evidence Act, in cases where the witness has not objected to answering the question put to him and been obliged by the Court in spite of his objection to answer it?

(3) Whether relevant statements made by an accused person under Section 342, Criminal Procedure Code, or contained in a written statement filed by him “with the Court’s permission, are absolutely protected from being the subject of a prosecution for defamation under Section 500, Indian Penal Code, on the grounds, etc., referred to in question (1)?

Madgavkar, J.

8. I agree.

JUDGMENT Macleod, C.J.

9. We answer the first question referred to us by the Bench in the negative. In Satish Chandra Chakravarti v. Ram Dayal De [1920] 48 Cal. 388, it was held by a Full Bench of the Calcutta High Court “that a defamatory statement, on oath or otherwise, by a party to a judicial proceeding falls within Section 499 of the Indian Penal Code, and is not absolutely privileged. Under Clause 30 of the Letters Patent, 1865, the provisions of such Code must be followed, and the Court cannot engraft thereon exceptions derived from the Common Law of England or based on public policy.” Every case on the subject has been most exhaustively dealt with by the learned Acting. Chief Justice and it would be superfluous for us to add anything to what has been said in that case. We think accordingly that the decision in Queen-Empress v. Babaji [1892] 17 Bom. 127 was wrongly decided, and that the decision in Queen-Empress v. Balkrishna Vithal [1893] 17 Bom. 573 should, have been decided according to the opinion of Mr. Justice Telang.

10. We also think that the third question should also be answered in the negative, as the decision I have already referred to applies to this question also. There, is nothing in Section 342 of the Criminal Procedure Code which gives an accused person an absolute privilege as regards defamatory statements made by him in his examination.

11. With regard to the second question : we think that the words at the end of the question “and been obliged by the Court in spite of his objection to answer it” must have been put in by inadvertence, as the question propounded for our opinion should be whether relevant statements made by a witness on oath or solemn affirmation in a judicial proceeding can be held to be protected by the proviso to Section 132 of the Indian Evidence Act, in the cases where the witness has not objected to answering the question?” It was hardly necessary to refer that question to a Full Bench, as there is no decision of this Court that such statements can be protected where the witness has not objected to answering them. On the contrary it was decided in Emperor v. Cunna that, unless a person objects to any question the answer to which is likely to criminate him, he cannot be said to have been compelled to give such answer within the meaning of the proviso. On page 1271, Mr. Justice Hayward said :

If a man voluntarily makes an incriminating statement, he must take the consequences for it. He can only plead protection if he has specifically declined to make the statement, and has been specifically compelled to do so by the Court.

12. The decisions referred to of the Allahabad High Court in Emperor v. Ganga Sahai [1920] 42 All. 257 and Emperor v. Ghatur Singh [1920] 43 All. 92 are decisions of a single Judge.

13. We answer the second question in the negative.

limitation in IPC 500

Excerpt: In this case, FIR was registered on 3rd February, 2000 while complaint has been filed on 22nd February, 2003, that is, after three years. The contention of counsel for the respondent no. 2 that since defamatory statements had also been made in the complaint dated 7th April, 2000 before the Delhi Commission for Women, this complaint having been filed within three years from the said date is within limitation, has no force. No such complaint was placed on record of Trial Court nor complainant CW2 has whispered a word about it while in witness box. Further no specific averment has been made in the complaint that respondent no. 2 was defamed because of such complaint. Perusal of paras 20 and 21 of the complaint shows that whole thrust has been laid on the malicious and defamatory statements made in the FIR. Thus, complaint having been filed beyond a period of 3 years from the date of registration of FIR, on the face of it, is barred by limitation.

 

 

Delhi High Court

Ms. Romy Khanna vs State (Govt. Of Nct Of Delhi) New …

on 4 July, 2011

Author: A. K. Pathak

            IN THE HIGH COURT OF DELHI: NEW DELHI

+             CRL. M.C. No. 1187-2010

                    Judgment reserved on 26th May, 2011
%                   Judgment delivered on 04th July, 2011

MS. ROMY KHANNA                                       ......PETITIONER

                         Through:     Mr. Atul Jain, Adv.

                         Versus

STATE (GOVT. OF NCT OF DELHI)
NEW DELHI & Ors.                                   .....RESPONDENTS

                         Through:     Mr. U.L. Watwani, APP for the
                                      State
                                      Mr. Rakesh Sharma, Adv. for R-
                                      2.

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers             No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?                No

       3. Whether the judgment should be                     Yes
          reported in the Digest?


A.K. PATHAK, J.

1. By way of present petition under Section 482 of the Code of Criminal Procedure (Cr.P.C.), petitioner seeks quashing of complaint under Section 500 of the Indian Penal Code (IPC) filed by respondent no.2 before the Metropolitan Magistrate, Delhi. Petitioner has also prayed that the order dated 8th September, 2009 passed by Metropolitan Magistrate, whereby she has been summoned, be set aside.

2. Factual matrix of the case as unfolded is that on 3rd February, 2000 FIR No. 106/2000 under Sections 342/376/511/506/34 IPC was registered against respondent no. 2 at Police Station Rajouri Garden, on the complaint of petitioner. In the FIR, petitioner had alleged that respondent no. 2 was brother of her friend, namely, Meenu. She used to treat him like her brother. However, he asked her to be his friend. She declined to this proposal. On 24th December, 1999, Meenu met her at Janakpuri bus stand at about 9:30 AM while petitioner was going to Delhi University. She told her that she would accompany her to University after changing clothes. Accordingly, petitioner went to Meenu‟s house. Meenu left her in a room by saying that she would return after changing clothes. After about two minutes respondent no. 2 came inside the room and bolted the door. Thereafter, he forcibly removed her clothes in order to commit rape upon her. In fact, he nailed her down on the bed and threatened to kill her. He also took her nude photographs. Respondent no. 2 also gave her a fist blow resulting in injuries on her nose. Somehow, petitioner managed to save herself and return home. Due to the threats extended by the respondent no.2, petitioner did not disclose this incident to her parents. Even thereafter, respondent no. 2 and his sister continued to threaten the petitioner that they would distribute her naked photographs in her locality. On 31st January, 2000, when petitioner was going to Tilak Nagar market along with her sister, Respondent no. 2 intercepted them and tried to pull the petitioner in his car. When petitioner and her sister resisted he beat them up. On reaching home, petitioner and her sister narrated the entire story to their parents.

3. Respondent no. 2 filed a Criminal Writ Petition No. 359/2001 seeking quashing of the FIR. He alleged that the petitioner was having friendly relations with her. One day father of petitioner had seen them roaming around in the market. Thereafter, at the instance of her father, petitioner got the FIR registered falsely implicating the respondent no.2. During the hearing of said petition petitioner made a statement before a Division Bench of this Court that the respondent no. 2 had never made any attempt to commit rape upon her nor was she harassed by him; She had lodged the complaint at the instance of SI Subhash Chander of Police Station Rajouri Garden, who was her father‟s friend. She was having friendly relations with respondent no.2. Her father was against their friendship and therefore, she had lodged FIR under the pressure of her father and SI Subhash Chander. In view of this statement, FIR in question was quashed by a Division Bench of this Court vide order dated 30th May, 2001. In the said order no direction was passed for initiating any proceeding against the petitioner, her father or SI Subhash Chander. Thus, it appears that respondent no.2 had filed a Criminal Appeal No. 522/2002 before the Supreme Court titled Davinder Singh @ Tinku & Anr. vs. State (Govt. of NCT of Delhi) & Anr., which was dismissed on 22nd January, 2009. Even, Supreme Court did not deem it fit to pass any such direction.

4. On 22nd February, 2003 respondent no. 2 has filed the present complaint against the petitioner, her sister and her father, alleging therein that the petitioner had falsely implicated the respondent no. 2 in a criminal case under the pressure of her father. She had also filed a complaint with the Delhi Commission for Women under the pressure of her father, wherein respondent no. 2 was summoned. False and malicious prosecution launched by the petitioner against respondent no.2, had defamed him and his family, thus, petitioner, her father and sister were liable to be punished under Section 500 IPC. After recording the pre- summoning evidence Metropolitan Magistrate has summoned only the petitioner.

5. It would be relevant to quote para 20 and 21 of the complaint of respondent no. 2 with advantage, which reads as under:-

“20. That the complainant had thereafter appeared before the court of Ms. Bimla Makin, ASJ, Delhi where the challan was pending. The Hon‟ble Court of Ms. Bimla Makin, ASJ, Delhi had consigned the file/challan wide its order dt-30-7-2001. A certified copy of the said order is marked as Annexure P-4. The complainant had even served a notice upon the accused persons, which was duly received by them but they did not respond. A copy of the said notice is marked as Annexure P-5. That all the above stated facts have vividly clarified that the accused persons had connived together to lodge a false and frivolous case by putting defamatory false allegations and thereby setting up a malicious as well as defamatory prosecution of complainant u/s 342/376/511/506/292A/509/34 IPC in PS: Rajouri Garden. As truth was to prevail so the said false FIR was quashed on the basis of true statement of accused no.1 and the complainant.

21. That the accuseds have committed an offence of defamation with the sole motive to harass torture and defame him to and further of giving false evidence and statements thereby set the said FIR into a chain of Acts, due to which the complainant had suffered lot of agony and even remained imprisoned for his fault. However, the complainant is already before the Hon‟ble Supreme Court of India challenging the order of Hon‟ble High Court of Delhi wherein necessary direction/action has not been passed against the police officials and for the investigation thereof.”

6. Learned counsel for the petitioner has vehemently contended that the complaint is barred by limitation having been filed after 3 years of lodging of the FIR. FIR was lodged on 3rd February, 2000; whereas complaint has been filed on 22nd February, 2003, which is beyond the period of limitation of 3 years. Metropolitan Magistrate ought to have satisfied himself on the point of limitation at pre-cognizance stage. Since the complaint had been filed beyond the period of limitation Metropolitan Magistrate was precluded from taking cognizance thereof, thus, summoning order is without any jurisdiction. Reliance has been placed on Surinder Mohan Vikal vs. Ascharj Lal Chopra AIR 1978 SC 986, Ghanshyam Dass vs. Shyam Sunder Lal 1982 Cri.L.J. 1717 and P.M. Kathiresan vs. Shanmugham 1995 Cri. L.J. 2508. As against this, learned counsel for respondent no.2 has contended that the complaint had been filed within 3 years of petitioner lodging the complaint before Delhi Commission for Women, thus is within the period of limitation. He has further contended that FIR was quashed by the Division Bench of this Court on 30th May, 2001 giving rise to the „cause of action‟ in favour of respondent no. 2 to file the complaint and the complaint having been filed within 3 years from the said date(s) was not barred by limitation. Metropolitan Magistrate was right in taking cognizance of complaint and summoning the petitioner, inasmuch as, the averments made in the complaint, duly supported by the statements of CW1 to CW3, disclose ingredients of the offence under Section 500 IPC.

7. In this case, FIR was registered on 3rd February, 2000 while complaint has been filed on 22nd February, 2003, that is, after three years. The contention of counsel for the respondent no. 2 that since defamatory statements had also been made in the complaint dated 7th April, 2000 before the Delhi Commission for Women, this complaint having been filed within three years from the said date is within limitation, has no force. No such complaint was placed on record of Trial Court nor complainant CW2 has whispered a word about it while in witness box. Further no specific averment has been made in the complaint that respondent no. 2 was defamed because of such complaint. Perusal of paras 20 and 21 of the complaint shows that whole thrust has been laid on the malicious and defamatory statements made in the FIR. Thus, complaint having been filed beyond a period of 3 years from the date of registration of FIR, on the face of it, is barred by limitation.

8. Section 468 Cr.P.C. lays emphasis on the period of limitation for taking cognizance of certain offences and reads as under :-

“1) Except as otherwise provided elsewhere in this Code, no court, shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) Six months, if the offence is punishable with fine only;

(b) One year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) Three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.”

9. A perusal of the above provision clearly shows that Section 468 (2)(c) Cr.P.C. in no uncertain terms specifies a period of 3 years for taking cognizance of an offence which is punishable with imprisonment for a term exceeding one year but not exceeding 3 years. Section 500 IPC envisages that whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. Meaning thereby, the period of limitation applicable to the complaints under Section 500 IPC would be governed by Section 468(2)(c) Cr.P.C. Section 469 Cr.P.C. specifies the commencement of period of limitation. Section 469(1)(a) Cr.P.C. provides that the period of limitation, in relation to an offence, shall commence, – (a) on the date of the offence. It is not the case of respondent No. 2 that Clauses (b) and (c) get attracted in this case. FIR was registered on 3rd February, 2000 and police had visited the house of respondent no. 2 in the night intervening 3rd /4th February, 2000 at about 1:30 am in order to arrest him. In the complaint under Section 500 IPC, respondent no. 2 has categorically stated that defamatory matter was contained in the FIR. So, according to the complainant‟s version, offence under Section 500 IPC was made out on 3rd February, 2000, when the defamatory statement was made in the FIR and, in my view, this is the date of offence within the meaning of Section 469(1)(a) of Cr.P.C. and the period of limitation of three years will commence with reference to that date for the purpose of Section 468 Cr.P.C. The complaint, thus, having been filed beyond the period of limitation is, barred by Section 468 Cr.P.C. In these facts, it was not permissible for the Magistrate to take cognizance of the offence after expiry of period of limitation and by doing so he has acted beyond his jurisdiction.

10. In Surinder Mohan Vikal (supra), Supreme Court, in the similar facts, has held that a complaint under Section 500 IPC for defamation will be barred if filed three years after the commission of the offence. Where in a complaint under Section 500 IPC it is alleged that the defamatory matter was contained in a complaint under Sections 406/420 IPC against the complainant, the period of limitation for filing complaint under Section 500 IPC would commence from the date of the complaint under Sections 406/420 IPC and not from the date when complainant was finally acquitted of offences under Sections 406/420 IPC. Sub-Section (1) of Section 469 Cr.P.C. specifically provides that the period of limitation prescribed in Section 468, in relation to an offence, shall commence, inter alia, on the date of the offence and the question of „cause of action‟ having arisen on account of acquittal, would not arise in such cases as the controversy relates to the commission of an offence. In Ghanshyam Dass (supra) the facts involved were more or less similar to the facts of this case. Petitioner Ghanshyam Dass had lodged an FIR against Shyam Sunder Lal. In a case arising out of said FIR, Shyam Sunder was acquitted. Thereafter, he lodged a complaint under Section 500IPC against Ghanshyam Dass alleging therein that defamatory statements had been made in the FIR. The complaint was filed by Shyam Sunder Lal after about 7 years from the date of registration of the FIR but within 3 years from the date of acquittal. As Magistrate took cognizance of offence, Punjab and Haryana High Court held that Magistrate at pre-cognizance stage has to apply his mind to the question of limitation. Having failed to do so, the proceedings become without jurisdiction and were liable to be quashed. It was further held that the period of limitation for filing the complaint under Section 500 IPC would commence from the date of registration of FIR containing defamatory statements and not from the date of acquittal. In PM Kathresai (supra) Madras High Court has held that if any offence is made out in a complaint under Section 500 IPC for defamation, Section 468(2)Cr.P.C. is attracted and cognizance of offence should be taken within a period of three years from the date of occurrence. Thus, where the date of offence under Section 500 IPC was identified, inasmuch as, defamatory remarks were made in a complaint filed before the police by the accused, the starting part of limitation would be the date of complaint and not the date on which the evidence was given by the party nor the date of knowledge of the appellant about filing of such complaint.

11. In view of the above discussions, impugned order dated 8th September, 2009 as also the complaint case titled “Davinder Singh @ Tinku vs. Romy Khanna & Ors.” is quashed.

12. Petition is disposed of in the above terms.

A.K. PATHAK, J.

JULY 04, 2011 ga

Aarti Jain vs Uma Shanker Vyas

Excerpt:  the question whether case of respondents/accused is covered by any of the explanation/exceptions to Section 499 of the IPC, is required to be determined at the trial.

Aarti Jain vs Uma Shanker Vyas & Ors on 10 January, 2013

Author: Sunil Gaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                           Reserved on: January 09, 2013
                        Pronounced on: January 10, 2013

+                     Crl. Revision Petition No.283/2004

       AARTI JAIN                                    ..... Petitioner
                              Through:   Mr. Manish Gandhi, Advocate

                              versus

       UMA SHANKER VYAS & ORS.           ..... Respondents

Through: Mr. R.K. Tewari, Advocate for Mr. Sunil Sharma, Additional Public Prosecutor for State –

Respondent No. 3.

CORAM:

HON’BLE MR. JUSTICE SUNIL GAUR % JUDGMENT

1. Order of 6th February, 2001 of trial Court, summoning respondents

– Uma Shankar Vyas and Surender Mohan in a complaint case for the offence under Section 500/34 of the IPC was challenged by respondents/accused by way of a revision petition, which stands allowed vide impugned order of 8th March, 2004 while holding as under:-

“On perusal of the entire complaints, it is revealed that the total complaints are directed to conduct investigation into the matter. These complaints are made to the police official and PS to Lt. Governor and are in the nature of brining the facts to their notice by the revisionist. Per-se these letters are addressed to the officers in their official capacity requesting therein to conduct proper investigation into the matter.

On perusal of the entire testimony, it is nowhere revealed that the said letters were transmitted with a view to making it public or so to say sent with the intention of putting forth the facts either to the public in general or the friends or relatives. The said letters per-se are made to move the machinery of the police so that they may look into the matter and conduct investigation into the matter. If we can choose the portions of the letters, which are allegedly defamatory, the real intention of the party cannot be gathered. The real intention can only be gauged by reading the said complaints in extensio and in piece- meal or reading the same by dissecting it.”

2. The penultimate finding returned in the impugned order is as under:-

“On perusal of the said letters, it is evident that they are in the nature of making the complaint so that the matter can be investigated property and the allegations made therein are in the nature of protecting the interest of the revisionist and I see no mala-fide intention on the part of the revisionist while making the said allegation contained therein.

On perusal of the entire record, I am of the considered opinion that keeping in view the circumstances under which the said complaints were made where all three FIRs were registered by the complainant against the revisionist, the allegations made in the said letters cannot be read in isolation which will never cull out the real intention of the revisionist. Taking into consideration the uncontroverted allegations made therein, no prima facie case is made out against the revisionist.”

3. At the hearing, learned counsel for petitioner assails the impugned order on the ground that the defence of respondents/accused has been accepted without the complaint case being put to trial, which is contrary to law. Reliance is placed upon decision in Jeffrey J. Diermeier v. State of West Bengal, (2010) 6 SCC 243.

4. Learned counsel for respondents/ accused supports the impugned order and submits that the case of respondents/ accused is covered by explanation 4 as well as exception No. 8 & 9 to Section 499 of IPC and so, impugned order is well merited.

5. Upon hearing learned counsel for the parties, on perusal of impugned order, the material on record and decision cited, I find that on a bare perusal of the alleged defamatory letter of 15th May, 1997 (Annexure-A), it cannot be said that its contents are not per se defamatory. Whether respondents/ accused are covered by any exception/explanation or not is a matter which cannot be pre-judged at the stage of summoning and is required to be seen at the trial of this case. To so conclude, reference is made to paragraphs No. 37 to 40 of the Apex Court decision in Jeffrey (Supra), which read as under:-

“37. 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. However, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt.

38. It is well settled that the degree and the character of proof which an accused is expected to furnish in support of his plea cannot be equated with the degree of proof expected from the prosecution in a criminal trial. The moment the accused succeeds in proving a preponderance of probability, onus which lies on him in this behalf stands discharged. Therefore, it is neither feasible nor possible to lay down a rigid test for deciding whether an accused person acted in “good faith” and for “public good” under the said Exception.

39. The question has to be considered on the facts and circumstances of each case, having regard to the nature of imputation made; the circumstances on which it came to be made and the status of the person who makes the imputation as also the status of the person against whom the imputation is allegedly made. These and a host of other considerations would be relevant and required to be considered for deciding the appellants’ plea of “good faith” and “public interest”. Unfortunately, all these are questions of fact and matters for evidence.

40. In the instant case, the stage for recording of evidence had not been reached and, therefore, in the absence of any evidence on record, we find it difficult to return a finding whether or not the appellants have satisfied the requirements of “good faith” and “public good” so as to fall within the ambit of the Tenth Exception to Section 499 IPC. Similarly, it will neither be possible nor appropriate for this Court to comment on the allegations levelled by Respondent 2 and record a final opinion whether these allegations do constitute defamation. Reading the complaint as a whole, we find it difficult to hold that a case for quashing of the complaint under Section 482 of the Code has been made out. At this juncture, we say no more lest it may cause prejudice to either of the parties.”

6. In light of the aforesaid, the impugned order is rendered indefensible, as it suffers from material irregularity and the question whether case of respondents/accused is covered by any of the explanation/exceptions to Section 499 of the IPC, is required to be determined at the trial.

7. Resultantly, this revision petition is allowed and the impugned order of 8th March, 2004 is set aside and order of 6th February, 2001 is restored for proceeding in accordance with the law.

8. This petition is disposed of with aforesaid observations.

(SUNIL GAUR) Judge January 10, 2013 rs

 

Abdul Hakim And Anr. vs State

Allahabad High Court

Abdul Hakim And Anr. vs State on 2 September, 1972

Equivalent citations: 1973 CriLJ 492

Author: P BakshiBench: P Bakshi

ORDER P.N. Bakshi, J.

1. A complaint was filed under Section 500 I.P.C. by one Mohammad Ishaq against opposite parties Abdul Hakim and Abdul Karim in the Court of Judicial Officer City Meerut. The Court took cognizance of the offence and recorded the statement of the complainant. Process was issued to the opposite parties. It appears that Mohammad Ishaq died on 11th May, 1969. An application was filed on 13.9.1969 by Rafeeq Ahmad son of Mohammad Ishaq for permission to continue the prosecution. An objection was filed thereto by the Opposite parties to the effect that in view of Section 198 Cr.P.C. Rafeeq Ahmad should not be allowed to continue the proceedings. The Judicial Officer City held that the provisions of Section 198 Cr.P.C. were not attracted as they referred only to the initial jurisdiction of a court to take cognizance of an offence. He therefore, allowed the application of Rafeeq Ahmad to proceed with the case by his order dated 3rd June, 1970. Abdul Hakim and Abdul Karim being aggrieved by the aforesaid order filed a revision before the Sessions Judge Meerut. Their revision was dismissed on 11.8.1970. Now they have come up in revision before this Court.

2. I have heard learned Counsel for the parties at considerable length and have also perused the record of the case. On behalf of the applicants it is contended that having regard to the various provisions of the Criminal Procedure Code, the order Passed by the courts below is not warranted in law. Reference has been made to Section 247 Cr.P.C. which authorises a court in a summons case to acquit the accused if the complainant does not appear on the date fixed. Reliance is also placed on Sections 259 Cr.P.C. which authorises a court in a warrant case which is instituted upon complainant, to discharge the accused before framing a charge, if on the date fixed the complainant is absent and the offence is non-cognizable and can be lawfully compounded. I have been referred to a ruling reported in AIR 1916 Patna 152 : 18 Cri LJ 151, Jeetan Dusadh v. Domo Saho. In that case the accused was being tried for an offence under Sections 379, 147 and 323 I.P.C. The complainant had died in the course of the trial His son applied for permission to continue the proceedings. The Magistrate declined to grant the permission and acquitted the accused holding that under Section 247 Cr.P.C. he had no option but to acquit the accused. On reference by the District Magistrate, holding that the matter was one which affected the tranquility of the district it was decided, by the High Court of Patna that Section 247 Cr.P.C. applies primarily to the case of a complainant who is alive and not to the case of a complainant dying before the trial. As Section 247 did not apply at all to a case of this kind, there was nothing to prevent the Magistrate from going on with the proceedings.

3. The next case referred by counsel is reported in A.I.R. 1932 Nag. 72 : 33 Cri LJ 407, Anand Rao v. Gadi. The view expressed in this case was as follows:

It is doubtful whether Section 247 applies in a case where the complainant dies but even if it applies there is nothing in Section 247 to prevent an adjournment of the case to enable another, complainant to be substituted. Consequently, where in a summons case the complainant’s son appears and states that his father is dead, but asks that the case should be proceeded with the Court can properly grant his request.

4. In a case reported in AIR 1926 Bom 178 : 27 Cri LJ 491. In Re: Mohammad Azam the view expressed by the Patna High Court mentioned above was accepted. The High Court of Bombay doubted whether Section 247 applies to a case in which the complainant had died. It was held therein that after the death of the complainant the trying Magistrate has discretion in a proper case to allow the complainant to be continued by a fit and proper complaint. In AIR 1922 Lahore 227 : 22 Cri LJ 166. Hazara Singh v. Emperor it was held that the death of the complainant or the person injured does not terminate or cause to abate criminal proceedings, once legally instituted whether upon complaint or otherwise. In AIR 1924 All 666 (2) : 25 Cri LJ 1007, Musa v. Emperor, it was held, by a Single Judge of this Court that prosecution under Section 323 of the Indian Penal Code does not abate by reason of the death of the person injured. The above view also finds support from later cases decided by other courts in our country. In AIR 1966 J & K 60 : 1966 Cri LJ 412, Ali Dar v. Mohd. Sharif, it has been held as follows:

Under the Indian. Law a crime is an offence not against individuals but against the society or the public as such. Once a complaint has been properly instituted and proceeded with, the courts must punish the offender if the case is proved against him the death of the complainant has no effect on the proceedings, though in some cases the wrong done is strictly to the person of the complainant or where the complaint can be lodged only by a specified class of persons.

5. It has also been held in AIR 1969 Mys. 221 : 1970 Cri LJ 59 that the death of the complainant in a case of non-cognizable offence does not abate the prosecution. It is within the discretion of the trying Magistrate in a proper case to allow the complainant to continue a proper and fit complaint if the later is willing.

6. A contrary view however, has been expressed in AIR 1915 Cal. 708 (1) : 16 Cri LJ 322 Puran Chand Maulik v. Dingar Chandra Pal holding that where the person on whose complaint a prosecution under Section 352, I.P.C. was started died and on his death his nephew applied to be substituted, such substitution should not be allowed, and order should be passed under Section 247 Cr.P.C. acquitting the accused on the ground of failure of the complainant to appear at the hearing of the case. In AIR 1928 Mad 167 : 29 Cri LJ 257 Bontu Appala Naidu v. Emperor, it was held that in a summons case if the complainant is dead during the course of the inquiry the Magistrate should acquit the accused and not proceed with the inquire. The view of the Court was that the complainant having died could not appear before the Magistrate, As such, there could be no question of adjourning the case and the Magistrate should have acquitted the accused and not proceeded with the enquiry.

7. After a consideration of the cases mentioned above I am of opinion that there is not (no) binding in the Criminal Procedure Code to warrant the view that on the death of the complainant the criminal proceedings must abate. Though a case may be started on the complaint by any particular individual and though a discretion has been given to the court to acquit the accused under Section 247 Cr.P.C. or to discharge him under Section 259 Cr.P.C. there is no justification for holding that the criminal proceedings must necessarily abate on the death of the complainant. A criminal case cannot be compared to a civil action where the cause of action is personal to the plaintiff. In my opinion, no analogs can be drawn in criminal cases from the proceedings for abatement embodied in the Civil Procedure Code. Once a criminal case has been started, be it upon a complaint or otherwise, the proceedings must be carried on to its conclusion according to the provisions of the Criminal Procedure Code. The absence of any Provision in the Code of Criminal Procedure to apply the principle of abatement is a clear indication of the fact that criminal proceedings were not intended by the framers of the statute to abate on the death of the complainant.

Reference in this connection may be made to a decision of their Lordships of the Supreme Court . Aswin Nanubhai Vyas v. State of Maharashtra. In that case the accused was being tried for offences under Sections 493 and 496 I.P.C. which are exclusively triable by Sessions and require for their cognizance a complaint by an aggrieved person. After the filing of the complaint the aggrieved person died. Her mother applied to the court for being substituted as a fit and proper complainant in the case. She expressed her willingness to act as a complainant and to continue the proceedings. This application was opposed on the around that the trial of offences under Sections 493 and 496 of the Indian Penal Code were governed by Section 198 Cr.P.C. and only the aggrieved Person could be the complainant. It was urged that on the death of the complainant the proceedings should be treated as abated. The question, therefore, which was considered by the Supreme Court in that case was whether on the death of the complainant the proceedings ipso facto came to an end or could be continued under the provisions of the Criminal Procedure Code. Their Lordships considered the various provisions of the Criminal Procedure Code and came to the conclusion that though the Code provides for abatement of appeals on the death of the accused in appeals under Section 411-A(2) and Section 417 Cr.P.C. on the death of the appellant, there is no express provision for abatement on the death of the complainant. It was held therein that the court has Power under Section 495 Cr.P.C. to substitute another prosecuting agency subject to such restrictions as are mentioned therein. In my opinion, therefore, the trial Magistrate had the discretion to permit Rafeeq Ahmad to continue the prosecution on the death of his father Mohammad Ishaq and the discretion has been Properly exercised by that court.

8. Counsel for the applicants urged that Section 198 Cr.P.C. bars the continuance of the Prosecution after the death of the complainant as in a complaint for an offence under Section 500 I.P.C. the son was not an aggrieved Person within the meaning of that section. I am not inclined to accept this submission. From a perusal of the complaint it is obvious that allegations had been made therein against the grandfather and the grandmother of Rafeeq Ahmad. The allegations if proved affected the reputation of the entire family. It cannot, therefore, be said that Rafeeq Ahmad had no locus standi to continue the prosecution. It has been held in Jokhai v. State that where a false imputation of unchastity is made against the daughter-in-law who is living with her father-in-law, the reputation of the entire family suffers and the father-in-law is an equally aggrieved person within the meaning of the expression under Section 198 Cr.P.C. In 1970 Mad LJ (Cri) 669 a private complaint had been lodged for an offence under Section 500 I.P.C. The complainant died thereafter, but the brother of the deceased was allowed to continue the prosecution. In a decision reported in 1964 (1) Cr LJ 367 (Cal) Mrs. Pat Sharpe v. Dwijendra Nath Bose it was held that the words “person aggrieved” in Section 198 Cr.P.C. did not always mean “person defamed”. The words “person aggrieved” have a wider connotation than the words “person defamed”, and the addition of the word “some” before the words “person aggrieved” supports this wider connotation, “where the person defamed was Netaji Subhas Chandra Bose it was held that his nephew was a person aggrieved within the meaning of Section 198 Cr.P.C.”

It thus appears from a consideration of the cases cited above that if on the allegations made against the complainant the reputation of the entire family is at stake, his close relations who are directly or indirectly affected thereby, will be covered by the expression “aggrieved person” used in Section 198. Cr.P.C. To my mind, therefore, there does not seem to be any good reason why Rafeeq Ahmad, who was the son of Mohammad Ishaq complainant, should not be allowed to continue the proceedings on the death of the complainant. Moreover the submission made by learned Counsel for the applicant regarding the bar of, Section 198Cr.P.C. applies only to the jurisdiction of the Court to take cognizance of an offence falling under Chapter 19 or 21 or Sections 493 to 496 of the Indian Penal Code except upon a complaint made by some aggrieved person for such an offence. This section only limits the power of the Court to take initial cognizance of the offence, but once Court has taken seisin of the case there is nothing to prevent it from proceeding with it. It has been held very clearly in a decision Nathu Jeorakhan v. Sheopal Kuppa that “once the proceedings have been allowed to be instituted by the Court, the condition of the real aggrieved person being alive till the decision of the trial has not been imposed for continuing the trial.” Section 495 Cr.P.C. would clearly apply in such cases and the Magistrate enquiring into or trying any case has the jurisdiction to permit the prosecution to be conducted by any proper person. In view of what I have held above. I am of opinion that Rafeeq Ahmad was in law entitled to continue the case in question and both the Courts below have passed an order which is eminently justified on facts as well as in law.

9. For all those reasons I do not find any force in this revision, which Is hereby dismissed.

Arundhati Sapru vs Yash Mehra

Excerpt: It is suffice to say that only pre-summoning evidence has been led by the complainant and even at that juncture the complainant has deposed that the allegations made by the petitioner has actually lowered, not only his, but also his wife‟s reputation and estimation in the eyes of his relatives, friends and general public and also hurt his feelings. Moreover, the question as to whether or not the remarks actually lowered the reputation of the respondent or his wife in the eyes of his relatives and general public is a question of fact which can be decided only after trial of the case. The case cannot be thrown out at its threshold when there is enough evidence pointing out towards prima facie offence made by the petitioner. 

 

 

Delhi High Court

Arundhati Sapru vs Yash Mehra on 12 November, 2013

Author: Sunita Gupta

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI


                         DATE OF DECISION: 12th NOVEMBER, 2013


+    CRL.M.C. 581/2013 and Crl. M.A. 1887/2013 (for stay)

     ARUNDHATI SAPRU                                      ..... Petitioner
                 Through:           Ms. Nisha Narayanan, Advocate with
                                    petitioner in person.

                         versus

     YASH MEHRA                                         ..... Respondent
                         Through:   Mr. Probhjit Johar and Mr. Ashish
                                    Aggarwal, Advocates with respondent
                                    in person.
     CORAM:
     HON'BLE MS. JUSTICE SUNITA GUPTA

                         JUDGMENT

: SUNITA GUPTA, J.

1. This is a petition under Section 482 of Code of Criminal Procedure, 1973 (for short „Cr.P.C.) for quashing of proceedings in Complaint Case No. 69/1 titled as Yash Mehra v. Arundhati Sapru under Section 200 of Cr.P.C. for offence under Section 500 of the Indian Penal Code, 1860 (for short „IPC‟) pending in the Court of learned Metropolitan Magistrate, New Delhi.

2. The brief facts leading to the filing of the present petition are that the respondent herein filed a complaint under Section 200 Cr.P.C. for offence under Section 500 IPC alleging inter alia that accused and complainant got married on 12th July, 2011 according to Hindu rites and customs and several cases are pending between them in different Courts. Prior to the marriage with accused, the accused was married to Ms. Divya Mehra who expired on 11th June, 2000 and after her demise complainant got married to the accused. During subsistence of first marriage of the complainant with Ms. Divya Mehra, both of them adopted a son, namely, Pranav. Earlier divorce case pending between the complainant and accused was being heard by the Court of Sh. T.S. Kashyap, learned Additional District Judge wherein accused filed an application under Section 24 of the Hindu Marriage Act, 1955 for grant of maintenance which was dismissed vide order dated 31 st July, 2006. After the marriage of the accused with the complainant, accused has been making false allegations against Divya Mehra that she has physical affinities and relationship with people other than complainant. The aforesaid false allegations, regarding Divya Mehra having physical affinities, were made by the accused in front of various relatives and friends followed by an e-mail dated 30th July, 2010 containing remarks to various persons including Hon‟ble Supreme Court of India, National Commission for Women, Mr. V. Moily (former Law Minister of India), various Ministers, Mr. Ashwani Kumar, U.S. Ambassador/ACS Chief and Mr. Satish Tamta and Mr. Mrigank Dutta. The contents of the remarks made by the accused in the said e-mail dated 30th July, 2010 were reproduced as follows:

“Further T.S. Kashyap dismissal of the 2005 HMA, 24 application in the lower court was timed with Kaul‟s impending upholding of the mutual consent divorce in the high court in 2006. At that time I was aware that it was dragged out on purpose and that it was also because of his personal hatred for me due to his physical affinities with Yash Mehras first wife and adopted son.”

3. It was alleged that the first wife of the complainant Ms. Divya Mehra was a business women and was known well in her circle, respectable lady of the society, was carrying good reputation amongst her relatives and in the society. The complainant had very good relations with his first wife and was emotionally, sentimentally and psychologically attached to her. The aforesaid remarks made by the accused against late Ms. Divya Mehra are false, baseless and highly defamatory, inasmuch as, she has no physical affinity with anybody except the complainant. The aforesaid allegations and remarks have been made by the accused with the intention to defame Ms. Divya Mehra and the complainant as well as to hurt the feelings of complainant as he was quite attached to his first wife and held her in very high esteem. Because of the defamatory and derogatory remarks made by the accused, complainant as well as late Ms. Divya Mehra, have suffered in their reputation and both of them have been lowered in the estimation of their relatives, friends and general public. A legal notice dated 1st October, 2011 was sent to the accused calling upon her to pay a sum of Rs.30,00,000/- as damages and unconditional apology for defaming late Ms. Divya Mehra and complainant and severely hurting the feelings of the complainant. The respondent/complainant examined himself in pre-summoning evidence and reiterated the averments made in the complaint. He also proved e-mail Ex-CW1/A sent to various authorities mentioned in the complaint. He further deposed that because of defamatory and derogatory remarks made by the accused he and his deceased wife Ms. Divya Mehra have suffered in their reputation and both have been lowered in estimation of their relatives, friends and general public because a few of his relatives and friends started believing the allegations made by the accused.

4. Vide impugned order dated 27th August, 2012 learned Metropolitan Magistrate observed that from the testimony of the complainant and the material on record, prima facie a case under Section 500 IPC is disclosed against the accused and accordingly she was ordered to be summoned.

5. This order has been assailed by the petitioner by filing this petition primarily on the ground that for the offence of defamation to be made out, it has to be shown that the alleged remarks had lowered the reputation of the petitioner in the eyes of the relatives/public. The petitioner has not examined anybody, except himself, in the pre- summoning evidence, as such, he has failed to prima facie make out any case under Section 500 IPC. Reliance was placed on Explanation 4 of Section 499 IPC. Reliance was also placed on M/s Pepsi Foods v. Special Judicial Magistrates in order to show that summoning in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The impugned order is bad in law and therefore needs to be set aside.

6. I have heard Ms. Nisha Narayanan, learned counsel appearing for the petitioner and Mr. Probhjit Johar, learned counsel appearing for the respondent and have perused the record.

7. Learned counsel for the petitioner submitted that except for examining himself, complainant has not examined anybody else in order to prove that his reputation or that of his deceased wife has been lowered in the eyes of anybody. That being so, no offence underSection 500 IP is made out, and complaint is liable to be quashed. Reliance was placed on Prof. Imtiaz Ahmad v. Durdana Zamir in I.A. No.10367/2007 in CS(OS) No. 569/2006.

8. Per contra, it was submitted by learned counsel for the respondent that the allegations made by the petitioner are per se defamatory in nature. The same has been published and circulated to various authorities by e-mail and it clearly lowers the reputation of the deceased wife in front of the public at large and simultaneously hurting the sentiments of the respondent/complainant thus making out a case of defamation. Examining of friends or relatives was not a condition precedent for issue of summoning order qua the petitioner. The offence of defamation committed by the petitioner is writ large and whether the petitioner is entitled to the benefit as envisaged in Exceptions 8 and 9 of Section 499 would be a matter of trial and cannot be agitated upon in the present quashing petition. At the stage of pre- summoning evidence only a prima facie case is to be made out by the respondent/complainant which has been done by the respondent that is why learned Trial Court has summoned the petitioner as an accused. The impugned order does not suffer from any infirmity which calls for interference. Reliance was placed on M.A. Rumugam v. Kittu @ Krishnamoorthy and others (2009) 1 SCC 101; M.K. Prabhakaran and anr. v. T.E. Gangadharan and anr. (2006) Crl. L.J. 1872, Sanjay Mishra v. Govt. of NCT of Delhi 2012 Laws (DLH)-3-201; M.P. Singh Sahni v. State and ors. in Crl. M.C. 3773/2003 and Pat Sharpe V. Dwijendra Nath Bose 1964(1) Cri. L.J. 367.

9. I have given my considerable thoughts to the respective submissions of learned counsel for the parties and have perused the record.

10. The criminal law on defamation has been codified and is contained in section 499 to 502of the Indian Penal Code. For an offence of defamation as defined under section 499 IPC, three essential ingredients are required, to be fulfilled as laid down in the case of Standard Chartered Bank v. Vinay Kumar Sood, 2010 CriL.J 1277:-

i. Making or publishing any imputation concerning any person;

ii. Such imputation must have been made by words either spoken or intended to be read or by signs or by visible representations.

iii. 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”.

11. Thus, it is clear that the mens rea to cause harm is the most essential sine qua non for an offence under section 499 IPC. 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. An offence punishable under section 500 IPC requires blameworthy mind and is not a statutory offence requiring no mens rea.

12. A perusal of contents of the e-mail dated 30th July, 2010 show that the same are per se defamatory. It is not disputed by the petitioner that the e-mail dated 30th July, 2010 was not sent by her to various authorities which contained defamatory allegations not only against the respondent/complainant but also against his deceased wife. Further, the e-mail has been sent to various authorities including Hon‟ble Supreme Court of India, National Commission for Women, Mr. V. Moily (former Law Minister of India), various Ministers, Mr. Ashwani Kumar, U.S. Ambassador/ACS Chief and others. Same is to be taken as published. In M.K. Prabhakaran (supra) the allegations made in the written statement filed in the Court of law; in M.A. Rumugam (supra) the allegations published in various newspapers containing defamatory allegations; in M.P. Singh Sahni (supra) derogatory and un- parliamentary language used in fax message sent by the accused installed at the residence of the tenant; in Sanjay Mishra (supra) the allegations made in the replication and additional submissions in the divorce proceedings were held to be publication containing defamatory allegations and petition for quashing was dismissed.

13. The only plea taken by the petitioner is that except for examining himself, the complainant has not examined any other person to prove that in fact the reputation of the complainant and his wife has been actually lowered in the eyes of his relatives, friends and general public. It is suffice to say that only pre-summoning evidence has been led by the complainant and even at that juncture the complainant has deposed that the allegations made by the petitioner has actually lowered, not only his, but also his wife‟s reputation and estimation in the eyes of his relatives, friends and general public and also hurt his feelings. Moreover, the question as to whether or not the remarks actually lowered the reputation of the respondent or his wife in the eyes of his relatives and general public is a question of fact which can be decided only after trial of the case. The case cannot be thrown out at its threshold when there is enough evidence pointing out towards prima facie offence made by the petitioner. Similar issue was raised in M.N. Damani v. S.K. Sinha AIR 2001 SC 2037. In this case the petitioner had gone in appeal against the order of High Court quashing the criminal complaint filed by the petitioner under Sections 500, 499 IPC. Allowing the appeal, the Apex Court opined that the High Court at preliminary stage cannot say that there was no reasonable prospect of conviction resulting in the case after trial. It was held that questions as to whether the imputations were made in good faith, in what circumstances, with what intention, etc. are to be examined on the basis of evidence in trial. It was further held that quashing of complaint at preliminary stage is not proper, when from the sworn statements and documents produced by the petitioner a prima facie case can be said to have been made out against the respondent. Similarly in M.A. Rumugam (supra) application for quashing complaint petition filed by the respondent against the appellant under Section 500IPC was dismissed by the High Court. Matter went to Supreme Court and it was observed that the allegations made in the complaint make out a case for proceeding against the appellant under Section 500 IPC. It would be premature for the High Court to consider the material placed on record by the appellant so as to arrive at a definite conclusion that there was no element of bad faith on the part of the appellant in making the said complaint before the police authorities. Question as to whether a totally false complaint has been made as against the respondent or not as he was not even in India prior to the date of occurrence is required to be gone into by the learned Trial Judge. No inference was called for.

14. I have gone through the order passed in Prof. Imtiaz Ahmad (supra) relied upon by learned counsel for the petitioner. In that case defendant had filed a complaint before Crime Against Women Cell alleging that the plaintiff (in that case) along with others had considerable influence in her in-law‟s house and it was requested that there be no interference in her family affairs by the plaintiff and his wife. The plaintiff filed a suit for damages alleging that the allegations made in the complaint amounted to his defamation and he was entitled to damages. Defendant filed an application under Order VII Rule 11 CPC stating that the plaint does not disclose any cause of action and was liable to be dismissed. It was observed that the imputation were not defamatory in nature. Moreover, the defendant had a right to make complaints of her grievances to the authorities. Whenever a person makes a complaint against someone to the lawful authorities and in the complaint he makes imputations against the person complained of, it cannot be considered that the person has publicized or publicly made defamatory averments against a person. If a prosecution is initiated against the person on the basis of such averments and the person is acquitted holding that the complaint was false, then only a cause of action arises against the complainant for launching a case for false prosecution or for damages on other grounds. Until and unless a competent Court holds that complaint was false, no cause of action arises. Approaching a competent authority and praying that the authority should come to the rescue of the complainant and prevent inference of the plaintiff in the family affairs of the defendant cannot amount to a defamatory imputation per se and even if it is published, it does not tend to show that the defendant had intended to lower the reputation of the plaintiff. Therefore, since the plaint did not disclosed any cause of action against the plaintiff as such the suit was dismissed.

15. The factual matrix of the present case is entirely different, inasmuch as, as stated above the petitioner neither challenged that the e-mail was sent by her to various authorities which contained defamatory allegations. Moreover, for criminal purposes “publication” has a wider meaning than it has in civil law, since it includes a communication to the person defamed alone. The prosecution for defamation in criminal cases can be brought although the only publication is to the person defamed as it is very likely to provoke a breach between the persons involved. In the instant case the publication is not confined to the complainant but to the public at large. Secondly, it cannot be said that there was no publication of defamatory statement made by the petitioner.

16. Moreover, the powers of High Court under Section 482 Cr.P.C. are to be exercised sparingly and not as a matter of routine. Undoubtedly, the High Court possesses inherent powers under Section 482 of the Code of Criminal Procedure. These inherent powers of the High Court are meant to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 Cr.P.C. can be exercised in following category of cases:

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court, and

(iii) to otherwise secure the ends of justice.

17. This Court time and again has observed that the extraordinary power under Section 482, Cr.P.C. should be exercised sparingly and with great care and caution. The court would be justified in exercising the power when it is imperative to exercise the power in order to prevent injustice.

18. In R.P. Kapur v. State of Punjab 1960 Cri. L.J. 1239, Hon‟ble Supreme Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:

(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;

(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

19. In another leading case State of Haryana and Ors. v. Bhajan Lal 1992 SCC (Cri) 426, Supreme Court in the backdrop of interpretation of various relevant provisions of the Cr.P.C. under Chapter XIV and of the principles of law enunciated by the Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, it was made clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised:

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 1 56(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

20. Again in Janata Dal v. H. S. Chowdhary and Ors. (1992) 4 SCC 305 Supreme Court observed in what circumstances the inherent powers should be exercised:

“132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles.”

21. In the light of above judicial pronouncements and keeping in view the facts and circumstances of the case, I do not find any illegality or infirmity in the order of the learned Trial Court and the proceeding of criminal complaint against the petitioner.

The petition and the application being devoid of merit is hereby dismissed.

SUNITA GUPTA (JUDGE) NOVEMBER 12, 2013 AK

Bikramjit ahluwalia vs simran ahluwalia

Excerpt:It is also an established principle of law that the burden to prove that a case falls within the exceptions to section 499 IPC is on the party who contends it to exist.

To constitute „defamation‟ under Section 499 IPC, there must be an imputation and such imputation must have been made with intention of harming or with a knowledge 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.

From the perusal of the records and the complaint of respondent No. 1 it is observed that the averments made by the petitioner do prima facie appear to be defamatory and injurious to the image of  Page 12 of 14 respondent No. 1. The said imputations are directed towards the character of the said respondent. Thus, at this stage this Court is not convinced with the arguments of the petitioner that not even a prima facie case is established against the petitioners for the offence alleged.

It has been contended by the learned counsel for the petitioners that the alleged defamatory statements made by the accused persons in the pleadings of previous civil proceedings and statements under Section 161 Cr.P.C. cannot furnish a foundation for their prosecution for defamation in the instant case. This contention does not find favour with this court. The pleadings form a part of the judicial records and form a part of public documents. Anything stated in such pleadings, therefore, amount to the publication of the defamatory statements. Further the statements made under Section 161 Cr.P.C. 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 162Cr.P.C. would not be attracted. Statements under section 161 Cr.P.C. can claim only “qualified privilege” and not “absolute privilege”.

 

 

 

 

 

Delhi High Court

Bikramjit Ahluwalia & Ors. vs Simran Ahluwalia & Anr.

on 1 May, 2015

Author: V.P.Vaish

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Reserved on: 13th March, 2015
%                                              Date of Decision: 01st May, 2015

+         CRL.M.C. 447/2013

BIKRAMJIT AHLUWALIA & ORS.            ..... Petitioners
                Through: Mr. Y.P. Narula, Sr. Adv. with
                           Mr. Aniruddha Choudhury,
                           Mr.Abhay Narula & Mr.Ujas
                           Kumar, Advs.

                                           versus

SIMRAN AHLUWALIA & ANR.                                   ..... Respondents
                Through:                        Ms.Anu Narula, Adv.

CORAM:
HON'BLE MR. JUSTICE V.P.VAISH

                                      JUDGMENT

1. By way of the present petition under Article 227 of the Constitution of India read with Section 482 of Criminal Procedure Code (hereinafter referred to as „Cr.P.C.‟) the petitioners seek quashing of the criminal complaint case No. 49 of 2012 filed by respondent No.1 in the Court of learned Metropolitan Magistrate-06 (East), Karkardooma Court, Shahdara, Delhi alleging offences under Section 499 read with Section 500 of the Indian Penal Code (hereinafter referred to as „IPC‟) alongwith quashing of the summons issued pursuant thereto.

2. Succinctly stating the facts of the present case as emerging from the petition are that marriage between petitioner No.3 and respondent No.1 was solemnized on 26.11.2001 as per Hindu rites, customs and Crl.M.C. No. 447/2013 P age 1 of 14 ceremonies. Out of the said wedlock a female child was born on 04.09.2002. Thereafter, certain differences arose between the said parties and respondent No.1 left petitioner No.3 in April, 2008. At that time, she took along with her their minor daughter who was only five years old. Since then, there have been continuous inter se disputes between petitioner No.3 and respondent No.1 which are pending adjudication before various courts. During the course of the said proceedings, pleadings were filed by the petitioners which were taken to be defamatory by respondent No.1 and accordingly a criminal complaint was filed.

3. On the basis of the said complaint case No. 49/2012, the petitioners received summons on 01.02.2013 from the court of learned Metropolitan Magistrate, Karkardooma Courts, Delhi under Sections 500/34 IPC.

4. It is against the said complaint case and the summons received by the petitioners that the petitioners have filed the present petition.

5. Learned senior counsel for the petitioners contended that the complaint is not maintainable as the respondent No.1 has not specified the averments in the pleadings on the basis of which she is resting her claim for defamation. The learned Metropolitan Magistrate committed an error in law in taking cognizance of the complaint for defamation on the basis of records of pending civil proceedings and on the basis of statements recorded by the police under Section 161 Cr.P.C., during the course of investigation of criminal complaints filed by the respondent No.1. Pleadings filed by the petitioner in the civil proceedings as well as the statement made under Section 161 Cr.P.C. cannot be made the basis of the complaint for defamation. Respondent Crl.M.C. No. 447/2013 P age 2 of 14 No.1 has not identified any specific allegations/imputations made by the petitioners against her constituting an offence of defamation of respondent No.1 in public.

6. It was further contended by the learned counsel for the petitioner that the inferences drawn by respondent No.1 on the basis of circumstances and statements made during litigation between the parties cannot be considered defamatory under Sections 499/500 IPC. The police officer, who investigated the complaint of respondent No.1 and witnesses examined under Section 161 Cr.P.C. by the police, cannot be made co-accused in a defamation complaint. Admittedly, respondent No.1 is litigating with the petitioners and the averments made by the petitioners in civil proceedings, which are under adjudication, cannot be made the subject matter of a complaint for defamation. Even if it is presumed that the statements made by the petitioners are defamatory in nature, they would be covered by the fifth exception to Section 499 IPC.

7. It was lastly contended by the learned senior counsel for the petitioners that from the allegations made in complaint and keeping in view the conduct of respondent No.1, it is apparent that respondent No.1 is only interested in implicating the petitioners in false criminal cases by filing false complaints and the said conduct of respondent No.1 amounts to an abuse of the process of Court.

8. In supports of his submissions, learned senior counsel for the petitioners relied upon a catena of judgments which include, ‘Raminder Kaur Bedi v. Jatinder Singh Bedi’, 1989 (16) DRJ 154; ‘S.P. Satsangi v. Krishna Kumar Satsangi’, II (2007) DMC 425; ‘Alli Rani Joseph Mathew v. P. Arun Kumar’, 2013 (1) CTC 661;

Crl.M.C. No. 447/2013 P age 3 of 14 ‘Gopi R. Mallya v. Smt. Pushpa’, 1997 Kar LJ 216 ; ‘Geetha v. A.K. Dhamodharan’, CDJ 2011 MHC 3809; ‘Re: P. Ramaswami Mudaliar’, (1938) 1 MLJ 810; ‘M.P. Singh Sahni v. State’, Crl.M.C. No. 3779 of 2003 decided on 30.05.2013; ‘Indian Oil Corporation Ltd. v. NEPC India Ltd & Ors.’, AIR 2006 SC 2780 and ‘Shatrughan Prasad Sinha v. Rajbhau Surajmal Rathi & Ors.’, (1996) 6 SCC 263.

9. Per contra, learned counsel for respondent No.1 contended that the present petition is not maintainable on the face of it as the trial court is seized with the matter and has taken cognizance on the basis of pre-summoning evidence led by respondent No.1. The trial court summoned the petitioners only after being prima facie convinced by the act of defamation by the petitioners. The sole purpose of the petitioners is to malign and defame the image of respondent No.1 before the courts by averting that she has demanded huge sum of money for settlement. The petitioners have always made highly defamatory false statements. In the present petition also the petitioners tried to do the same thing by showing that respondent No.1 has demanded huge sum for settlement of dispute. The petitioners have kept this court in dark by not filing the entire documents on record with the present petition which are relied upon by respondent No.1 before the trial court on the basis of which trial court established a prima facie case against the accused persons. The chain of circumstances established by the respondent No.1 in her complaint clearly show the common intention shared by the petitioners and other accused persons in connivance with each other to defame and malign respondent No.1‟s character.

 Page 4 of 14

10. It was further contended by the learned counsel for respondent No.1 that pleadings filed by the petitioners in civil proceedings, can be quoted out of context and used for filing a complaint for defamation. Any averment made in judicial records containing defamatory statements, amounts to publication as the judicial records are public documents. Fifth exception to Section 499 IPC is not applicable to the present proceedings as it is solely based upon the proposition of good faith, which cannot be decided at a preliminary stage and could only be determined after completion of trial. This Court while exercising its inherent powers cannot quash the complaint only on the basis that the trial will not result in conviction of the accused persons. The opinion given by the IO in the closure reports without any substantive proof on record are not the acts done in official capacity and may have an effect of tarnishing the image of respondent No.1 before the public.

11. It was also contended by the learned counsel for respondent No.1 that despite the defamatory allegations made by the petitioners and other accused persons against respondent No.1, the trial court has ordered to file supplementary chargesheet against the petitioners after finding the truth in the protest petition of the respondent No.1 in FIR No. 273/2010 under sections 498A/406/34 IPC.

12. It was lastly submitted by learned counsel for respondent No.1 that notice under Section 251 Cr.P.C. has already been served on the petitioners and the trial in the complaint case has already commenced. The petitioners did not challenge the notice under Section 251 Cr.P.C.

13. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. I have also perused the material on record.

Crl.M.C. No. 447/2013 P age 5 of 14

14. At the outset it may be mentioned that the petitioners have not filed copy of the summoning order passed by the learned Metropolitan Magistrate, Delhi.

15. Before adverting to the facts of the present case, it is pertinent to reproduce relevant provisions of Section 499 IPC which read as under:

“499. Defamation.–Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. Explanation 1-3 Explanation 4.–No imputation is said to harm a person‟s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

xxx xxx xxx Fifth Exception. – Merits of case decided in Court or conduct of witnesses and other concerned – It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.

                                                 Page 6 of 14

16. To constitute „defamation‟ under Section 499 IPC, there must be an imputation and such imputation must have been made with intention of harming or with a knowledge 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.

17. Ingredients of Section 499 IPC were discussed by this Court in „Standard Chartered Bank v. Vinay Kumar Sood‟, 2010 CrlLJ 1277 wherein it was observed as under:-

“7. For an offence of defamation as defined under Section 499 IPC, three essential ingredients are required to be fulfilled:-

(i) Making or publishing any imputation concerning any person;

(ii) Such imputation must have been made by words either spoken or intended to be read or by signs or by visible representations.

(iii) 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.”

18. Further, as per Explanation 4 to the aforementioned Section, no imputation is said to harm a person’s reputation, unless that imputation directly or indirectly lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, in the estimation of others or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

19. The fifth exception to the said Section provides immunity to an imputation expressed in good faith regarding the merits of any case decided by a Court of justice or to the conduct of any person as a party, witness or agent in any such case. So far as the protection under fifth exception to Section 499 IPC is concerned it states that accusations preferred in good faith against a person to any of those who have lawful authority over that person with respect to the subject matter of accusations will not amount to defamation. Good faith of the person making accusations is therefore an essential condition of exemption from liability for defamation under this Exception.

20. It is a settled law that to decide whether the imputations amount to defamation, a court has to read the complaint as a whole and find out whether allegations disclosed constitute an offence under Section 499 IPC triable by the Magistrate. In ‘Shatrughna Prasad Sinha vs. Rajbhau Surajmal Rathi and Ors.’ (1996) 6 SCC 263 the Apex Court was of the view that:

“13….. It is the settled legal position that a Court has to read the complaint as a whole and find out whether allegations disclosed constitute an offence underSection 499 triable by the Magistrate. The Magistrate prima facie came to the conclusion that the allegations Crl.M.C. No. 447/2013 P age 8 of 14 might come within the definition of ‘defamation’ under Section 499 IPC and could be taken cognizance of. But these are the facts to be established at the trial. The case set up by the appellant are either defences open to be taken or other steps of framing a charge at the trial at whatever stage known to law. Prima facie we think that at this stage it is not a case warranting quashing of the complaint filed in the Court of Judicial Magistrate, Ist Class at Nasik. To that extent, the High Court was right in refusing to quash the complaint under Section 500, IPC.”

It is also an established principle of law that the burden to prove that a case falls within the exceptions to section 499 IPC is on the party who contends it to exist.

21. Reverting to the facts of the present case, the allegations of defamation raised by respondent No.1 against the petitioners were made on the basis of the imputations made by the petitioners in the civil proceedings and the proceedings arising out of FIR No. 273/2010 under Sections 498A/406 IPC registered at P.S. Preet Vihar, Delhi. Respondent No.1 has filed the complaint before the trial court in view of the following defamatory statements made by the petitioners and other co-accused:

a) Illicit relation of respondent No.1 with Mr. Aldaan Rajan Sharma for which reason the complainant left the company of her husband;

b) Respondent No.1 is a money digger who is instituting false and frivolous complaints in order to extort some good amount of money from her in laws as well as using her daughter as a pawn for this purpose;

c) Respondent No.1 ran away with all her belongings including items not belonging to her;

                                       Page 9 of 14
        d)     Respondent No.1 marries for money and troubles

her in-laws at the time of Divorce/break-up for marriage;

e) Respondent No.1 is a characterless person who has/had many relationships;

f) Respondent No.1 blackmailed and pressurized the accused No.2 to marry her; and

g) Respondent No.1 is introducing Mr. Aldaan Rajan Sharma as the father of the child.

22. The law is also well-settled that the jurisdiction to quash a complaint, F.I.R. or a charge-sheet should be exercised sparingly and only in exceptional cases and Courts should not ordinarily interfere with the investigations of cognizable offences. However, the law is equally settled that where the allegations made in the F.I.R. or the complaint even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the F.I.R. or complaint may be quashed in exercise of powers under Article 226 or inherent powers under Section 482 of the Cr.P.C. In the leading case of „State of Haryana v. Bhajan Lal & Ors.’, 1992 Supp. (1) SCC 335 certain guidelines were issued for the exercise of these powers by the Courts. In guideline number 3 it was laid down that where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and do not make out a case against the accused, the Court may quash the F.I.R. as well as the investigations. A note of caution was added by observing that the power of quashing a criminal proceeding should be exercised sparingly and with circumspection and that too in the rarest of rare cases. It was held that the Court would not be justified in embarking Crl.M.C. No. 447/2013 P age 10 of 14 upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint. Similarly, in „Rupan Deol Bajaj v. K.P.S. Gill’, (1995) SCC (Cri) 1059 and „Rajesh Bajaj v. State of NCT of Delhi‟, (1999) 3 SCC 259, the Hon‟ble Supreme Court clearly held that if a prima facie case is made out disclosing the ingredients of the offence, Court should not quash the complaint. However, it was held that if the allegations do not constitute any offence as alleged and appear to be patently absurd and improbable, Court should not hesitate to quash the complaint. A note of caution was added that while considering such petitions the Courts should be very circumspect, conscious and careful.

23. Even at the time of summoning, the Magistrate is not required to conduct a minute analysis of the evidence produced by the complainant. All that is required to be seen is whether the Magistrate has applied his mind and found sufficient reason to proceed against the accused persons. The Hon‟ble Supreme Court in „Sonu Gupta vs. Deepak Gupta and Ors.‟, (2015) 3 SCC 424, held as under: –

“8. …..At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not.”

24. Further, the powers of the High Court under Section 482 Cr.P.C. have to be exercised sparingly and not as a matter of routine. The Crl.M.C. No. 447/2013 P age 11 of 14 inherent powers of the High Court under the said Section are meant to act in the interest of justice or to prevent the abuse of the process of court. The scope of the inherent powers of the High Court vested with it under Section 482 Cr.P.C. has been settled by the Supreme Court in a catena of judgments. In ‘Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors.’, 2007 12 SCC 1 the Supreme Court reiterated the scope and powers of the High Court under Section 482 Cr.P.C. while stating that:

“23. This Court in a number of cases has laid down the scope and ambit of courts’ powers under Section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 Cr.P.C. can be exercised:

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court, and

(iii) to otherwise secure the ends of justice.

24. Inherent powers under Section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute.”

25. From the perusal of the records and the complaint of respondent No. 1 it is observed that the averments made by the petitioner do prima facie appear to be defamatory and injurious to the image of  Page 12 of 14 respondent No. 1. The said imputations are directed towards the character of the said respondent. Thus, at this stage this Court is not convinced with the arguments of the petitioner that not even a prima facie case is established against the petitioners for the offence alleged.

26. It has been contended by the learned counsel for the petitioners that the alleged defamatory statements made by the accused persons in the pleadings of previous civil proceedings and statements under Section 161 Cr.P.C. cannot furnish a foundation for their prosecution for defamation in the instant case. This contention does not find favour with this court. The pleadings form a part of the judicial records and form a part of public documents. Anything stated in such pleadings, therefore, amount to the publication of the defamatory statements. Further the statements made under Section 161 Cr.P.C. 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 162Cr.P.C. would not be attracted. Statements under section 161 Cr.P.C. can claim only “qualified privilege” and not “absolute privilege”.

27. The other point for consideration in the present case is whether such statements are covered by the exceptions provided under Section 499 IPC. In the opinion of this court the question whether or not such statements are covered under the said exceptions or whether such statements have been made in good faith or not cannot be decided at a preliminary stage and could only be determined at the time of hearing and not under a proceeding under Section 482 Cr.P.C. In ‘BalrajKhanna and Ors v. Moti Ram’, AIR 1971 SC 1389 the Apex Court in this regard was of the view that:

“30. …It is needless to state that the question of applicability of the Exceptions to Section 499, I.P.C, as well as all other defences that may be available to the appellants will have to be gone into during the trial of the complaint.”

28. In view of the aforesaid discussion, the petition is devoid of any merit, same deserves to be dismissed and the same is hereby dismissed.

Crl. M.A. No.1432/2013 and 8899/2013 The applications are dismissed as infructuous.

                                        (VED PRAKASH VAISH)
                                               JUDGE
MAY 01st, 2015
hs

 

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.

Rekhabai vs Dattatraya And Another

 

Excerpt:
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. In the instant case, the Judicial Magistrate, First Class, Arvi, was right in holding that Arvi Court had jurisdiction to entertain and try the complaint.

Bombay High Court

Rekhabai vs Dattatraya And Another on 31 March, 1986

Bench: H Patel

ORDER

1. This application under Section 482 of Cr.P.C. is filed by the applicant Rekhabai who is legally wedded wife of non-applicant 1 Dattatraya Shamraoji Manglekar challenging the order dt. 4-9-1985 passed by the Judicial Magistrate, First Class, Arvi holding that the Court at Arvi has jurisdiction to try the complaint.

2. The petitioner is prosecuted for an offence punishable under Section 500 of the I.P.C. In the complaint filed by the non-applicant husband, it was alleged that his marriage with the applicant Rekhabai was solemnised at Amravati on 7-6-1983 and both of them resided at Arvi as husband and wife 28-10-1984. The case of the non-applicant was that during the applicant’s stay at Arvi, she wrote a letter to her mother at Amravati and made allegations to the effect that the non-applicant Dattatraya suffered from venereal disease and thereby rendered himself weak with the result that he could not satisfy the applicant and needed medical examination by the Doctor. According to the non-applicant, the aforesaid letter was posted at Arvi and was received by the mother of the applicant at Amravati. It was further alleged in the complaint that when he went to Amravati, the mother of the applicant handed over the said letter to him making enquiry as to whether the allegations made therein are true. The contents of the letter, according to the non-applicant Dattatraya were defamatory and the applicant was liable to be punished for an offence under  Section 500 of the I.P.C.

3. The learned Magistrate was pleased to issue process to the applicant under 500 Section  of the I.P.C. vide order dt. 26-3-1985. The applicant Rekhabai appeared before the Judicial Magistrate, First Class, Arvi and by her application (Ex. 10/D) prayed for dismissal of the complaint on the ground that the Court at Arvi was not competent to try the dispute. It was her submission that the publication of the alleged defamatory letter has taken place at Amravati and hence the Court of Judicial Magistrate, First Class Arvi did not have jurisdiction to entertain the complaint. The learned Magistrate after hearing the parties, held by order dt. 4-9-1985 that the Court at Arvi did have jurisdiction to try the complaint. Not satisfied with the order passed, the applicant has directly approached this Court under inherent powers for setting aside the order passed by the Judicial Magistrate, First Class, Arvi, and for dismissal of the complaint.

4. Relying on the decision of Madras High Court in Aravamutha Iyengar v. Rajarathna Mudaliar it was submitted on behalf of the applicant that since the letter was posted at Arvi to be transmitted at Amravati where it was opened and read, it was at Amravati that the publication was made and the Court at Amravati alone had jurisdiction. It was held by the Madras High Court that when the letter enclosed in an envelope is posted at any particular place, it cannot amount to publication at the place the letter is posted. According to that judgment, the gist of the offence of defamation being publication of the defamatory matter, if the letter does not reach the other side, it cannot be said that defamation has been completed merely because the letter was posted at a particular place. It was also held that in order to constitute defamation, there must be evidence of publication and until such time the letter is not published, it cannot be said that the offence of defamation has been committed, in other words, it was the submission made on behalf of the applicant that the essence of the offence of defamation consists in publication of libellous matter and that as there was no publication within the jurisdiction of the Judicial Magistrate, First Class, Arvi, the said Magistrate had no jurisdiction to take the complaint on file.

5. The submissions were opposed on behalf of the non-applicant and it was contended that both the Courts at Arvi and Amravati had jurisdiction to enquire into the offence and reliance for this proposition was placed on a reported decision in
Pisupati Purnaiah Sidhanthi vs Pisupati Satyanarayana Sidhanthi  . This decision clearly lays down that “where the offence of defamation was committed by the accused by posting a defamatory letter from place ‘A’ to place ‘B’ and the accused tried either at ‘A’ where the posting took place or at ‘B’ where the actual publication took place.

6. In para 5 of the aforesaid judgment the Andhra Pradesh High Court also explains the decisions of Madras High Court in Aravamutha Iyengar’s case (1957 Cri LJ 983) (Cited supra). The relevant extract is given below :

“While dealing with the jurisdiction of a Court concerning an offence under Section 500 Indian Penal Code lays stress only on the aspect of publication of the implication as the essence and gist of the offence, and doubts the correctness of the decisions in AIR 1923 Mad 666 (1923-24 Cri LJ 309). He considers the question from the point of a case where the letter which was posted may not reach the other side. The possibility of such a contingency has been made the reason by this learned Judge has not agreed with Spencer J., in the reliance placed upon the English decisions. He distinguished the decision of the Division Bench in AIR 1924 Mad 340 : (1924-25 Cri LJ 641), as one where the question whether the posting in a particular place amounts to publication has not arisen. But if the real difference between instances where letters of defamation are posted but did not reach the other side and those where the letters posted reach the other side is borne in mind, as in the one case the offence is not committed and in the other there is commission of the offence, the class of cases where the offences are not committed could not be taken as illustrative of cases where the actual offences have been committed. In other words, when an offence which can be committed in parts has been fulfilled partly and something or other prevents the completion of the other part of the offence, in such a case, no question of jurisdiction to enquire or try the case would arise. But where a part of it has taken place in one locality and other part in another locality the mere possibility of the letter being last in transit would not make it appear that the offence was not committed in parts in different localities, when actually the offence happens to be completed.”

7. The decision of the Andhra Pradesh High Court in Pisupati Purnaiah Sidhanthi’s case (1959 Cri LJ 1403) clearly explains the decision of Madras High Court in Aravamutha Iyengar’s case (1957 Cri LJ 983) and it further endorses the view earlier taken by the Madras High Court in Krishanamurthi Iyer v. Parasurama Iyer. AIR 1923 Mad 666 : (1923-24 Cri LJ 309) and Durke v. Skipp, AIR 1924 Mad 340 : (1924-25 Cri LJ 641). Similar view is also taken by Rajasthan High Court as reported in 1979 Raj. Cr. C. 63. In my opinion, 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 the consequences which consisted in gaining publicity at the opening of the letter at the other and also gives jurisdiction to the Court where the addressee resided. In other words, the offence is triable where the act is done or where the consequence ensues in accordance with the provisions of Section 179 of the Cr.P.C.

S. 179 of the Cr.P.C. reads thus :

“179. When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.”

For S,179 Cr.P.C of the Cr.P.C. the person must be accused of commission of offence by reason of the act done and consequence which has ensued. The Full Bench of this Court in AIR 1930 Bom 490 : (1931-32 Cri LJ 331), In Re Jivandas Savchand, Beaumont, C.J. observed as follows :

“Now I must confess that but for the fact that many eminent Judges have thought that the language of that section was when a person is accused of the commission of any offence by reason of two things, by reason first of anything which has been done, and, secondly, of any consequence which has ensued, then jurisdictions is conferred on the Court where the act has been done or the consequence has ensued. But the offence must be charged by reason of those two things, the act done and the consequence which ensued. If that is so the consequence is necessarily part of the offence. It does not matter whether you say, as some of the Courts have said, that the consequence must be an integral part of the offence or whether you say, as others of the Courts have said, that it is a necessary ingredient of the offence, the point is that the consequence must be part of the offence charged. The section does not refer to an offence charged by reason of an act done, from which act any consequence has ensued.”

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. In the instant case, the Judicial Magistrate, First Class, Arvi, was right in holding that Arvi Court had jurisdiction to entertain and try the complaint.

8. To conclude, the present Criminal Application fails and is accordingly dismissed with no order as to costs.

9. Application dismissed.