Tag: bombay high court

Rekhabai vs Dattatraya And Another

by 498anlr, posted in self, Uncategorized

 

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.