Vishveshwar Kumar vs State Of U.P. And Another

Excerpt:, I am of the view that in the present case as well, it would be appropriate to have a full-fledged trial so as to gather the intention of the accused, whether it was there to defame the opposite party no. 2 in order to lower his image in the estimation of the public and with that motive the news item was printed or whether it was simply a statement of fact. This Court cannot prejudge this issue without the full trial.

Allahabad High Court

Vishveshwar Kumar vs State Of U.P. And Another on 2 September, 2019

Bench: Dinesh Kumar Singh-I

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment Reserved on : 08.08.2019
 
Judgment Delivered on :  02.09.2019
 

 
Court No. - 65
 

 
Case :- APPLICATION U/S 482 No. - 38158 of 2012
 

 
Applicant :- Vishveshwar Kumar
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Imran Ullah
 
Counsel for Opposite Party :- Govt.Advocate,N.L.Pandey,Pankaj Srivastava
 

 
Hon'ble Dinesh Kumar Singh-I,J.

Heard learned counsel for the applicant Shri Imran Ullah and in opposition, learned counsel for opposite party no. 2 Shri N.L. Pandey, learned A.G.A. for the State Shri G.P. Singh and perused the record.

2. This application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Code’) has been moved on behalf of the applicant with a prayer to quash the entire proceedings in Complaint Case No. 583 of 2012 (Natthu Lal Yadav v. Pradhan Sampadak and others), under Sections 500, 501 of the Indian Penal Code, 1860 (hereinafter referred to as ‘I.P.C.’), Police Station – Kotwali, District – Varanasi, pending in the court of A.C.J.M.-II, Varanasi.

3. In order to appreciate the arguments advanced by learned counsel for the applicant and the contentions made in the affidavit filed on his behalf, it would be pertinent to refer here in brief, the complainant’s case as narrated in the complaint and the evidence which has been adduced in support thereof. According to the complaint, one Sessions Trial No. 642 of 1999 was initiated against the opposite party no. 2/complainant under Sections 302, 120B of I.P.C., Police Station – Chowk, District – Varanasi pertaining to Crime No. 10 of 1999, in which he was acquitted vide judgment and order dated 05.08.2002 by the Additional District Judge, Fast Track Court No. 5. The Advisory Committee of the National Security Agency (N.S.A.) had communicated by FAX to the opposite party no. 2 that his detention was found to be against law and a direction was issued for his immediate release. Earlier, the District Magistrate had cancelled the license of S.B.B.L. gun of the opposite party no. 2, but subsequently, a report was sent by Inspector, Kotwali pertaining to Crime No. 10 of 1999 in respect to the cancellation of gun license of the opposite party no. 2 and after consideration of the same, the District Magistrate vide order dated 25.08.1999, had cancelled his gun license, against which an appeal was preferred by him before the Commissioner, Varanasi under Section 19 of the Arms Act, 1959 and vide order dated 26.02.2001, the order of District Magistrate was confirmed, against which the opposite party no. 2 had preferred a writ petition No. 20298 of 2010 before the High Court, in which the orders of the District Magistrate and the Commissioner were set aside and the said gun was released in favour of opposite party no. 2 and his armed license gun was renewed up to 2009 and was valid till then. The accused-applicant along with two other co-accused were fully aware of these facts, but in order to assail his dignity, at the instance of co-accused (Sanjay Singh, Inspector, Police Station – Kotwali, District – Varanasi), on 13.06.2007, untrue facts were published in the newspapers, which were derogatory to the opposite party no. 2 and considerably dented his esteem in the eyes of public and people started looking upon him in adverse light and this also led to the breakage of betrothal (‘sagaai’) of the complainant’s son and people started avoiding to meet him so much so that it became very difficult for him to move around and live peacefully a dignified life. This caused immense physical, mental and financial loss to him.

4. The said complaint was registered as Complaint Case No. 2025 of 2007 against the applicant and two other co-accused and on 25.06.2007, the statement of the opposite party no. 2 was recorded under Section 200 of the Code, in which he narrated the same version which has been stated above in the complaint, further clarifying that all the three accused, which included the applicant, in conspiracy with each other, published news item in ‘Hindustan’ and ‘Amar Ujala’ daily newspapers on 13.06.2007. The local editors of the said two daily newspapers were made accused along with the S.I. Sanjay Singh who were stated to have deliberately published the said news item, which led to the defamation of the opposite party no. 2 and therefore, it was mentioned that a sum of Rs. 10 lacs should be directed to be paid by the accused to compensate the opposite party no. 2.

5. In support of the complaint, one Manoj Kumar Srivastava was examined by the opposite party no. 2 as P.W.1 under Section 202 of the Code, who has stated that he knew the opposite party no. 2 and had read news item in ‘Amar Ujala’, Varanasi edition dated 13.06.2007, carrying news item pertaining to the opposite party no. 2, after reading which, he received a big jolt that the opposite party no. 2 was a man with criminal antecedents, having case under Section 302 of I.P.C. and he was a history-sheeter. His other friends were having the same kind feeling towards him after having read the news and started avoiding to meet him. The other witness, namely, Kashi Seth was also examined by the opposite party no. 2 as P.W.2. He also has stated that he read the Varanasi Edition of the ‘Amar Ujala’ daily newspaper dated 13.06.2007 and came to know about the opposite party no. 2 being a history-sheeter and this led him not to have confidence in the opposite party no. 2 as his reputation had gone down badly. The marriage of opposite party no. 2’s son which was likely to take place also had broken because of the said news item having been widely read by the general public.

6. Based on the said evidence, the trial court passed the order dated 10.01.2008, wherein it was recorded that the news item which was published by the accused-applicant was nothing but publishing correct news and therefore, the same would not fall in the category of any offence. The accused being an editor of the ‘Amar Ujala’ daily newspaper, had published the said item only thinking that the said news item was correct and it would not appear to him that if the same was published by him, it would bring down the esteem of the opposite party no. 2 in the eyes of public. As regards the third accused Sanjay Singh, Inspector, Kotwali, the action taken by him fell within the domain of his official duty in respect of cancellation of arm’s license of opposite party no. 2. Merely on account of opposite party no. 2 being acquitted, it could not be said that accused no. 3 had proceeded to take action for cancellation of arms license in order to damage his reputation. Accordingly, the trial court dismissed the complaint under Section 203 of the Code. Against the said order, a revision (Criminal Revision No. 09 of 2008) was preferred in which the Sessions Judge, Varanasi vide judgment and order dated 29.02.2008, set aside the order of the learned Magistrate mentioned above and remanded the matter back to the trial court to decide the matter afresh after hearing the counsel for the complainant and considering the evidence on record. While passing the said order, the learned revisional court observed that although the complainant had been acquitted in the cases pending against him, getting benefit of doubt, but in the publication dated 13.06.2007, it was written ^^fgLVªh’khVj Hkh ysdj ?kwe jgsa ykblsalh vlygk^^. The name of the opposite party no. 2 was also mentioned therein, therefore, it was not appropriate for the newspaper to publish such news without proper enquiry. The opposite party no. 2 had been acquitted by the Additional District Judge on 05.08.2002 and by the order of High Court in Writ Petition No. 20298 of 2001, the petition of opposite party no. 2 was allowed and his arm’s license was restored in the year 2003. Thus, after 2003 till 2007, there was nothing against the opposite party no. 2 which could be the basis for publishing such news item that he was a history-sheeter detenue of “RASUKA” (Rashtriya Suraksha Kanoon). Further, it is mentioned in the said judgment that the publication of the fact mentioned in the complaint could not be said to be bona fide and the conclusion drawn by the learned trial court that true facts were published could not be said to be in accordance with evidence on record and accordingly, the revision was allowed.

7. Thereafter, the trial court passed the impugned order dated 09.07.2009, in which it has been recorded that the revisional court, while allowing the revision on 29.02.2008, has directed it to pass fresh order on the basis of evidence, after hearing the parties again. The revisional court in its order while drawing the conclusion, has mentioned that the publication made in the newspapers did not appear to have been published bona fidely and hence, according to the conclusion drawn by the revisional court, the accused deserves to be summoned to face trial under Section 500 of I.P.C. and accordingly, summons were issued against the applicant along with other two co-accused.

8. The main thrust of the argument of the learned counsel for the applicant was that the impugned order was totally illegal because the same was not passed on the appreciation of the evidence on record by the learned Magistrate, rather it has been passed in accordance with the wishes/opinion formed by the revisional court, which is wrong. The learned Magistrate was directed to consider the evidence afresh and after hearing the parties, he should have passed fresh order, expressing his own opinion as to whether prima facie case under the relevant sections were made out or not and it should not have passed the order merely because the revisional court had expressed opinion that the said offence was found to be made out.

9. Attention of this Court was also drawn to the order of the District Magistrate, Varanasi dated 15.10.2007 at page no. 85 of the paper book, in which as many as four criminal cases are shown to have been recorded against opposite party no. 2 and it was also mentioned therein that on the basis of police report, showing those cases to have been initiated against opposite party no. 2, was held to be the basis for cancelling the arm’s license of the opposite party no. 2. He was issued notice to show cause on 19.07.2007. In response to the said notice, the opposite party no. 2 had filed objection on 17.08.2007, stating therein that the Crime No. 10 of 1999 was registered against him because a widow lady had received a bullet injury and concerning that, proceedings were also initiated against him under N.S.A. His arm’s license was also cancelled vide order dated 25.08.1999, against which he had preferred an appeal before the Commissioner, Varanasi Division, which too was dismissed and thereafter, a writ petition No. 20298 of 2001 was preferred by the opposite party no. 2 and in the said petition, vide order dated 14.05.2003, the orders of District Magistrate and the Commissioner were set aside and the arm’s license of the opposite party no. 2 was directed to be restored and on that basis, the show cause notice was taken back with immediate effect and the gun was directed to be restored to opposite party no. 2. It was argued after having shown the said order, that the said order was passed on 15.10.2007, while the publication of news item was made on 13.06.2007, which was stated to be derogatory and defamatory against the opposite party no. 2. Therefore, it is apparent that the accused-applicant did not have any knowledge that any such order was passed by the District Magistrate, restoring the arm’s license to the opposite party no. 2 after having found that the criminal case shown pending against him had resulted in acquittal and the High Court had passed a direction in his favour to restore the license and the weapon as well.

10. The sole basis of making publication of the said news item was that there was report of the co-accused Sanjay Singh to the effect that the above-mentioned four cases were pending against him and hence, he had made the said publication simply on the basis of the police report. There was no intention while publishing the said news item to defame the opposite party no. 2, rather it was simply a news item, which was statement of fact, basis of which was police report, which later on came to be set aside by the order of District Magistrate dated 15.10.2007, hence, he cannot be held liable for having caused offence under Sections 500 and 501 of I.P.C.

11. On the other hand, learned counsel for the opposite party no. 2 vehemently opposed the quashing of the proceedings against the applicant because according to him, it was very much in the knowledge of the accused-applicant that those criminal cases, which are cited above, had already been closed and the accused-applicant had been acquitted and the license of the gun was also restored to the opposite party no. 2 and yet, knowing full well, the said news item was published in the said papers with a view to maligning the image of the opposite party no. 2, hence, offence under Sections 500 and 501 of I.P.C. were made out on the basis of evidence which has been recorded by the trial court.

12. Reliance has been placed by learned counsel for opposite party no. 2 on the judgment of Hon’ble Apex Court in the case of K. Sitaram and Another v. CFL Capital Financial Service Limited and Another1. In the above-mentioned case, it has been held by the Hon’ble Apex Court that when a person files a complaint and supports it on oath, rendering himself liable to prosecution and embezzlement, if it is false, he is entitled to be believed unless there is some apparent reason for disbelieving him; and he is entitled to have the person, against whom he complains, brought before the court and tried. The only condition requisite for the issue of process is that the complainant’s deposition must show sufficient ground for proceeding.

13. From the side of the applicant, in paragraph no. 32 of the affidavit, it is mentioned that a perusal of the order dated 15.10.2007 passed by the District Magistrate would itself demonstrate that the D.M. was not in the knowledge of earlier proceedings and as such if at all he had given any statement against opposite party no. 2, that was on the basis of criminal proceedings and relying on the police report. However, the reporting of the publishing was done only on the basis of the statement given by the then-District Magistrate and after doing preliminary enquiry by the reporter concerned, whereby he was shown the papers regarding criminal prosecution as well as the reports given by the police station concerned to the District Magistrate and as such, it cannot be said that the said reporting was done with laxity and without proper investigation, with an intention to defame any person. The petitioner/applicant, at the time of the said reporting, was Resident Editor of Hindustan Times Media Ltd. The said reporting was not done by him. There was no intention nor any personal enmity with the complainant to publish false report against him, rather it was a plain and simple reporting of the fact as narrated by the then District Magistrate, Varanasi and there was no ulterior motive against the complainant to defame him or tarnish his image. The trial court has ignored the settled principle of law that in order to constitute abetment, the abettor must be shown to have intention as well knowledge to have aided in the commission of the offence.

14. In the instant case, the applicant cannot be said to be an abettor as there was no intention or knowledge to commit the offence. There was no prima facie case made out against the applicant. There is not an iota of single specific allegation against the applicant in relation to the publication of the said news item and yet he has been summoned. Further, it was mentioned that under Section 7 of the Press and Regulation of Books Act, 1867, it is only the office of the “editor” as defined under Section 1(1) of the Act who can be held responsible for the publication and no other person. The said Act has been reproduced in the affidavit. It was necessary that the editor should have been directly responsible for publishing any news item.

15. Reliance has also been placed upon the judgment of Hon’ble Apex Court in the case of S.K. Alagh v. State of Uttar Pradesh2, in which it is held that there is no concept of vicarious liability under criminal law. The trial court has miserably failed to appreciate the evidence on record and has taken cognizance erroneously, which needs to be set aside.

16. From the side of opposite party no. 2, counter affidavit has been filed, in which all the submissions made in the affidavit have been rebutted and it has been asserted that there was sufficient evidence on record for the trial court to summon the accused under the aforesaid sections.

17. In the rejoinder affidavit filed from the side of the applicant, the same facts have been reiterated, which have been mentioned in the affidavit and nothing new has been stated.

18. The facts in the case are very much clear, as has been mentioned above. It is a fact that the opposite party no. 2 was an accused under Section 302 of I.P.C., but he had been acquitted for the same by the trial court way back in the year 2002 and the gun license was issued in favour of opposite party no. 2, which was cancelled by the District Magistrate and thereafter, the said decision was upheld by the Commissioner. Both the orders were set aside by the High Court in Writ Petition No. 20298 of 2001 vide order dated 14.05.2003 and the said license was restored to the opposite party no. 2, while the news item in question has been published in 2007. It is apparent that the said news item appears to have been printed in newspapers without taking proper care and making proper enquiry and the possibility cannot be ruled out that the same could have been published in order to bring down the image of the opposite party no. 2, as has been stated in the complaint and supported by the two witnesses named above. It has been argued by the learned counsel for the applicant that the applicant had no intention to defame opposite party no. 2 and that he had simply printed the news item on the basis of his information which he had received from the District Magistrate and also on the basis of police report, is something which needs to be decided by the trial court after having appreciated the evidence on record of both the sides and after having appreciated in the light of cross-examination made as to whether the evidence to be adduced by the parties proves the offence as has been committed by the accused-applicant or not. In case the trial court comes to the conclusion that there was no sufficient evidence on record to hold the accused guilty of having published the said news item deliberately in order to lower his image in the estimation of public, then the accused may get acquittal from the trial court, but at this stage, prima facie there is evidence against the applicant which discloses commission of offence under Sections 500 and 501 of I.P.C.

19. Sections 500 and 501 of I.P.C. are reproduced herein below :-

500. Punishment for defamation.–Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

501. Printing or engraving matter known to be defamatory.–Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

20. It is apparent from the above definition of offence under Section 501 of I.P.C. that if someone prints or engraves any matter knowing that such matter is defamatory of a person, he shall be punished with two years’ simple imprisonment or with fine or with both.

21. In the present case, there is certainly a news item printed, which is found by the trial court to be defamatory against the opposite party no. 2, as two witnesses have stated that when they read the said piece of evidence, they started viewing the opposite party no. 2 in poor light, considering that he was a criminal and tried to stay away from him and the marriage of his son had also broken on that account. Therefore, the fact as to whether the said news item was printed in the said newspapers knowingly that the same would tarnish the image of the opposite party no. 2 or not, is a matter of evidence and a full-fledged trial is required to be held for the same. Therefore, at the initial stage, the proceedings against the applicant cannot be nibbed in the bud and reliance may be placed by me upon the judgment of Hon’ble Apex Court in the case of Md. Abdullah Khan v. Prakash K.3, wherein it was held that it must be established that matter printed and offered for sale is defamatory within the meaning of expression under Section of 499 of I.P.C. If so proved, the next step would be to examine the question whether the accused-respondent committed the acts which constitute the offence of which he is charged, with the requisite intention or knowledge, etc. to make his act culpable. The answer to question depends upon facts. If the respondent is the person who either made or published the defamatory imputation, he would be liable for punishment under Section 500 of I.P.C. and if he is the person who “printed” the matter, then within the meaning of expression under Section 501 of I.P.C. Whether there is sufficient evidence to establish the guilt of the respondent for the said offence, is a matter that can be examined only after recording the evidence at the time of the trial. In this case, the Hon’ble Apex Court had held that the High Court did not choose to give any reason, whatsoever, for quashing the complaint, except concluding that the prosecution of accused would lead to miscarriage of justice, which was held to be wrong and it was considered proper that the trial ought to have been held.

23. Adopting the above principle of law in the present case, I am of the view that in the present case as well, it would be appropriate to have a full-fledged trial so as to gather the intention of the accused, whether it was there to defame the opposite party no. 2 in order to lower his image in the estimation of the public and with that motive the news item was printed or whether it was simply a statement of fact. This Court cannot prejudge this issue without the full trial.

23. In view of the aforesaid, the prayer for quashing the entire proceedings in the aforesaid case is refused and resultantly, the instantly application stands rejected.

Order Date :- September 02, 2019 I.Batabyal [Dinesh Kumar Singh-I,J.]

evidence is a consequence of the complaint given .

Excerpt:For the purpose of reckoning the limitation period, in the context of the rival contentions over the said point, if the date of offence is identified, then it must be the date of complaint given to the Superintendent of Police, which was on 27-10-1987. If that is so, three years’ period falls on 27-10-1990. Subsequently, it is seen that the complaint alleged to have been given by the revision petitioner has been investigated, but however, no action was taken. On 22-5-1989, the petitioner has given the evidence also in support of his claim when he was in the box. But, however, he was not cross-examined on behalf of the respondent herein. It is the common case that the same remarks given in the petition has been reiterated again by oral evidence. If the matter is viewed in this angle I, have no hesitation to hold that giving of the evidence before the learned Judicial Magistrate on 22-5-1989 by the revision petitioner is only a consequential one based on his complaint given on 27-10-1987. Therefore, it cannot be deemed that the date of giving evidence on 22-5-1989 is the starting point of the limitation, which is also not the case of both the parties herein, and this view was in consonance with the contentions raised on behalf of the petitioner herein. If the contention of Mr. Anandavelu, the learned counsel for and on behalf of the respondent, that the date of knowledge of the respondent alone is the starting point of limitation to be taken into consideration or accepted, then we have to look into the legal aspects clearly spelt out in Sub-clauses (b) and (c) of Section 469 of the Code. Either in the sworn statement given by the respondent on 4-7-1991 before the learned Judicial Magistrate or in the complaint, no date of knowledge of the alleged offence has been spelt out by and on behalf of the respondent herein. One cannot expect except through the above said course of evidence by any other made, at this stage, to reckon the commencement of the period of limitation or the knowledge of the date of the commission of offence. These two Sub-clauses to Section 469provides only to the authorities under the law to investigate and not to the private persons. Therefore, for the said reasons alone, I am totally unable to countenance my view with the contentions of the learned counsel appearing for the respondent. On the other hand, Section 468 Sub-clause 2(c) of the Code as relied on by and on behalf of the petitioner is a clear bar for entertaining the complaint.

        however, for the reasons given above, I am of the first firm view that the taking of cognizance of the complaint by the learned Judicial Magistrate on 4-7-1991 for an offence committed on 27-10-1987 almost four years after the commission of the alleged offence is clearly within the teeth of Section 468 of the Code and barring that since it attracts the Exception 8 to Section 499 of Indian Penal Code, the present trial of the case taken in C.C. 570/91, now pending on the file of the learned Judicial Magistrate No. 1, Madurai, has become legally incompetent and not in consonance with the legal mandate and the procedural law and that, therefore, it deserves to be dismissed and quashed.

High Court

P.M. Kathiresan vs Shanmugham, Retired Captain on 24 August, 1994

Equivalent citations: 1995 CriLJ 2508

Bench: N Arumugham

ORDER

1. Taking cognizance of a private complaint, filed under Section 200 Criminal Procedure Code by the respondent herein, for the alleged offence under Section 500 of the Indian Penal Code, by the learned Judicial Magistrate No. 1, Madurai, is the subject matter of challenge in this proceedings instituted under Section 482 of Criminal Procedure Code, praying to quash the same on several grounds by the petitioner-accused.

2. The noting of the brief facts are extracted as hereunder :- A written complaint, dated 27-10-1987 by the revision petitioner herein was lodged with the Superintendent of Police, Madurai, allegedly containing certain defamatory remarks against the respondent herein, which was taken note of by the respondent herein sometime later and on coming to know of the same and aggrieved on finding it to be defamatory, he has filed the private complaint under Section 200 Criminal Procedure Code before the learned Judicial Magistrate No. 1, Madurai, against the petitioner herein for the offence under Section 500 Indian Penal Code, which after taking the sworn statement and certain procedural wrangle, the learned Magistrate entertained into file and issued process to the petitioner herein to appear before him for the purpose of trial. Aggrieved at this, the petitioner being an accused in the private complaint, has come forward with this petition under Section 482 of the Code of Criminal Procedure to quash the whole proceedings before the learned trial Magistrate.

3. For the purpose of appreciating the matter on hand in its proper perspective, I have extracted the alleged defamatory remarks given by the respondent in the complaint itself as hereunder :-

“It is clear attempt to blackmail as seen from circumstances.

I have made private enquiries of the accused. I gathered the following details. He has no where withal.

He appears to be having intimacy with Annamalai Nadar’s wife, whose name is Panchavarnam.”

In support of the said written remarks, as per the typed set filed on behalf of the respondent, it was pointed out that the respondent herein being the accused, while giving the evidence before the learned Judicial Magistrate No. 1, Madurai, in C.C. No. 224/89 on 22-5-1989 is also said to have stated so, as pointed above in the passage referred to. It is seen, however, he was cross-examined on that score for the statutory and adjudication of the learned trial Magistrate.

4. Following the passages above referred, the respondent herein appears to have given the statement when he was examined by the learned Magistrate while entertaining the private complaint. The first imputation said to have been made in the complaint addressed to the Superintendent of Police, was made on 27-10-1987. The said complaint was investigated and case was initiated before the learned Magistrate in C.C. 224/89, wherein in support of the alleged defamatory remarks, the revision petitioner has given the evidence on 22-5-1989.

5. This complaint given by the respondent herein under Section 200 Criminal Procedure Code, was taken to file on 23-11-1992 for the alleged offence under Section 500 Indian Penal Code and process was issued to the revision petitioner to appear on 21-1-1993. Aggrieved at this, the present petition under Section 482 of the Code of Criminal Procedure has been filed.

6. It is at this stage, the petition to quash was heard. Mr. R. Shanmughasundaram, the learned counsel appearing on behalf of the petitioner-accused contended the following main points :-

1. Since the alleged defamatory remarks given by the petitioner herein was on 27-10-1987, which has been subsequently investigated by the Police and consequently, a case was initiated before the learned Judicial Magistrate No. 1, Madurai, the private complaint lodged by the respondent herein on 4-7-1991 is clearly out of time and cannot be entertained and in this regard, the learned Magistrate has committed an error in entertaining a time barred complaint to his file;

2. The passage of imputations alleged in the complaint above referred, is not at all per se defamatory and even so, his subsequent evidence given before the court of law on 22-5-1989, cannot be deemed to be the defamatory remarks as it has not come within any of the imputations provided under Section 499 of the Indian Penal Code;

3. Even assuming that the remarks are there, the said grievances were given to a lawful authority in writing and that, therefore, it attracts clearly the eighth exception provided to Section 499 of the Indian Penal Code;

And lastly, since there was enough motive for the petitioner and the respondent, since both of them were already under the serious logger heads, this petition was schemed out long after the time stipulated. Emphasizing the above four points, the learned counsel appearing for and on behalf of the petitioner-accused wants to quash the whole proceedings now pending against the revision petitioner before the learned Judicial Magistrate No. 1, Madurai.

7. Controverting the same, I have heard Mr. Ananthavelu, learned counsel appearing for the respondent-complainant, who would contend that so as to attract Section 468 Clause 2(C), the starting point of the limitation is not exactly the date of complaint, but the date of knowledge of the respondent to be reckoned for the purpose of limitation and not to the date of imputation made for the reason that the aggrieved person may not be aware of the contents of the same, unless he is made to know of the said imputations.

8. The second ground urged by the learned counsel for the respondent is that the question of limitation whether it is sustainable or not can only be raised before the trial Court and not before this Court by seeking the relief under Section 482 of the Code of Criminal Procedure, for the reason that all the facts and figures were made available only before the trial Court and without having any adjudication over the same, it cannot be looked into by a proceedings initiated for the purpose of quashing. Nextly, the learned counsel would contend that irrespective of the existence of motive between the petitioner and the respondent herein or not, since the complaint has been taken the cognizance of by the learned Judicial Magistrate and process has been issued in accordance with the procedural law, the trial must go on and let the matter be adjudicated on merits in accordance with law and it cannot be quashed at this stage. And lastly, it was the contention that since the alleged remarks and imputations are clearly per se defamatory, the present is only a device schemed out to wriggle out of the clutches of law and that, therefore, there are no merits in the petition to quash.

9. In the light of the above rival positions and circumstances projected before me, the only question that arises for consideration is whether the proceedings pending before the learned Judicial Magistrate is within the legal ambits and liable to be quashed or not ?

10. To answer the first question of law, viz., the limitation provided by the Code of Criminal Procedure and which provides a clear answer for the rival contentions made by the Bar on behalf of the parties. I feel it is relevant to extract Section 460 Sub-clause 2(c) of the Code, which reads as follows :-

“(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the catogory specified in Sub-section (2), after the expiry of the period of limitation;

(2) The period of limitation shall be :-

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

Section 500 Indian Penal Code provides for the punishment for the offence committed under Section 499 of the Indian Penal Code. It provides that if the offence under Section 499 of Indian Penal Code is made out, simple imprisonment for a term which may extend to two years or with fine or with both may be imposed. Therefore, it is made clear that if an offence is made out in the private complaint against the petitioner, it clearly attracts Section 468 Sub-clause 2(c), viz., that the cognizance of the offence under Section 500 of Indian Penal Code should have been taken by the learned Judicial Magistrate within a period of three years from the date of its occurrence.

11. Section 469 of Code of Criminal Procedure reads like this :-

“(1) The period of limitation, in relation to an offender, shall commence, –

(a) on the date of the offence; or

(b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or

(c) where it is known by whom the offence committed, the first day on which the identity of the offender is know to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier;

(2) In computing the said period, the day from which such period is to be computed shall be excluded.

Section 470 of the Code provides for the exclusion of time in certain cases.

12. For the purpose of reckoning the limitation period, in the context of the rival contentions over the said point, if the date of offence is identified, then it must be the date of complaint given to the Superintendent of Police, which was on 27-10-1987. If that is so, three years’ period falls on 27-10-1990. Subsequently, it is seen that the complaint alleged to have been given by the revision petitioner has been investigated, but however, no action was taken. On 22-5-1989, the petitioner has given the evidence also in support of his claim when he was in the box. But, however, he was not cross-examined on behalf of the respondent herein. It is the common case that the same remarks given in the petition has been reiterated again by oral evidence. If the matter is viewed in this angle I, have no hesitation to hold that giving of the evidence before the learned Judicial Magistrate on 22-5-1989 by the revision petitioner is only a consequential one based on his complaint given on 27-10-1987. Therefore, it cannot be deemed that the date of giving evidence on 22-5-1989 is the starting point of the limitation, which is also not the case of both the parties herein, and this view was in consonance with the contentions raised on behalf of the petitioner herein. If the contention of Mr. Anandavelu, the learned counsel for and on behalf of the respondent, that the date of knowledge of the respondent alone is the starting point of limitation to be taken into consideration or accepted, then we have to look into the legal aspects clearly spelt out in Sub-clauses (b) and (c) of Section 469 of the Code. Either in the sworn statement given by the respondent on 4-7-1991 before the learned Judicial Magistrate or in the complaint, no date of knowledge of the alleged offence has been spelt out by and on behalf of the respondent herein. One cannot expect except through the above said course of evidence by any other made, at this stage, to reckon the commencement of the period of limitation or the knowledge of the date of the commission of offence. These two Sub-clauses to Section 469provides only to the authorities under the law to investigate and not to the private persons. Therefore, for the said reasons alone, I am totally unable to countenance my view with the contentions of the learned counsel appearing for the respondent. On the other hand, Section 468 Sub-clause 2(c) of the Code as relied on by and on behalf of the petitioner is a clear bar for entertaining the complaint.

13. With regard to the second contention raised in this case, the quoting of the case laws pointed out by the Bar is not only relevant but which clearly provides an answer for the said question. In “Surinder Mohan Vikal v. Ascharaj Lal Chopra” , the Supreme Court while dealing with the scope of Sections 468, 469 and 470, Clause (1) of the Code of Criminal Procedure, in identical facts of the case, has observed as follows :-

“A Complaint for commission of offence under Section 406/420, I.P.C. was made by the appellant against the respondent on March 15, 1972 which resulted in acquittal on April 1, 1975 confirmed by the High Court on May 15, 1975. The respondent filed the present complaint under Section 500, I.P.C., on February 11, 1976. The appellant’s application to the High Court under Section 482, Cr.P.C. against the issue of summons was rejected. Allowing the appeal, the Supreme Court.

Held :

According to the complaint, the offence under Section 500, I.P.C., committed on March 15, 1972, which was the date of the offence within the meaning of Section 469(1)(a) of the Code, and the period of three years’ limitation would be calculated “with reference to that date for purpose of the bar provided by Section 468. But the complaint under Section 500, I.P.C. was filed on February 11, 1976, much after the expiry of that period. It was therefore not permissible for the Court of the Magistrate to take cognizance of the offence after the expiry of the period of limitation”.

14. Mr. Anandavelu relied on a case law held between “Ram Kripal Prasad v. The State of Bihar” (1985 Criminal Law Journal 1048 (Full Bench), In which it was held while dealing with the scope of Section 468 to 473, as hereunder :-

“The disputed issue of limitation under Sections 468 to 473, cannot be appropriately raised directly in the High Court for the quashing of proceedings under Section 482. It cannot be said that as lack of sanction being legal bar can provide a ground for quashing criminal proceedings limitation is also an identical bar entitling the petitioners to claim the quashing of proceedings before the High Court in the first instance. Lack of sanction where it is “provided as the pre-required for taking cognizance would present an inflexible and blanket legal bar to the prosecution till the same is obtained. Either the requisite sanction is forthcoming or it is not, no issue of imputation, condoning or overriding the same cannot at all arise. The concept of limitation on the other hand under Chapter 34 of the Code presents no such balnket bar at all. The issue of limitation is first a matter to be raised and then to be computed and thereafter determined by the Court on the basis of proper explanation of delay or overriding the default if necessary in the interests of justice. Whilest the lack of sanction, as for example, under Section 197 of the Code cannot be condoned, the expiry of limitation can be both explained and condoned by the Court. Equally whilst absence of sanction cannot be over ridden or ignored by the Court, Section 473 empowers if that despite the expiry of limitation of the paramount interests of justice so require the prosecution would continue and that is a matter first in the “judicial discretion of the Court taking cognizance. Therefore, in the limited field of quashing a proceeding the total absence of sanction is on an entirely different footing from the question of limitation under Chapter 34 of the Code. It cannot be said that cognizance having once been taken by the trial Court it would not be open to the accused to raise the issue of limitation thereafter nor was it permissible for the Court to determine the same. An accused person has no locus standi in the matter till process has been issued against him. His right to raise the issue of limitation thus can arise only after he puts in appearance subsequent to process issued after taking cognizance. There is no bar to the accused person raising the issue of limitation and indeed as observed earlier the same should be done at the earliest and if raised ought to be adjudicated upon as a preliminary issue. It cannot also be said cognizance having originally been taken by the Chief Judicial Magistrate “and thereafter the case having been transferred for trial to another Magistrate, the issue of limitation cannot be raised in such a transferee Court. It is well settled by virtue of Section 192 that a competent transfer Court exercise all the powers of the Court transferring the same. No hairsplitting distinction can either be drawn or allowed in this context”.

15. If the tenant of the legal pronouncement held by the Full Bench of the Patan High Court is imported to the facts of the instant case, one can easily identify the raising of the question of limitation is not an identical bar, but, however, can be raised at any stage or before the High Court and be computed and determined by the Court on the basis of a proper explanation of delay or overriding the default if necessary in the interest of justice. The clear pronouncement by the Full Bench of Their Lordships has made it clear that it cannot be said that cognizance having once been taken by the trial Court, it would not be open to the accused to raise the issue of limitation thereafter, nor was it permissible for the Court to determine the same. In the unambiguous and clear terms of Their Lordships, it is made clear that there is no bar to the accused person raising the issue of limitation and indeed as observed earlier, the same would be done at the earliest and if raised, ought to be adjudicated upon as a preliminary issue, and that it cannot also be said that cognizance have originally been taken by one Court and thereafter the case having been transferred to another Court, the issue of limitation cannot be raised. Added to the above position of law, clearly spelt out by the Full Bench of the Patna High Court, if the apex Court’s declaration of law is taken, it is made clear that the question of limitation can be raised not only at the earliest point of time before the trial Court but also even before this High Court to have the matter adjudicated in full. I have not been placed with any other case law to show the position that the question of law of limitation can be raised only before the trial Court and not before the High Court while the whole proceedings is sought to be quashed on the question of the law of limitation. For all the reasons aforementioned and having fully considered thus, I have no hesitation to hold that the first and second contentions raised on behalf of the petitioner by the Bar are well founded and have a serious in-road in the defence taken by and on behalf of the respondent. Therefore, I endorse my view to the first and second contentions on behalf of the petitioners.

16. Though number of other authorities and case laws have been relied on, since the above referred case laws were the latest one and directly relevant to the case on hand, I do not propose to traverse the same once again in the context of the ruling held by the apex Court in this case as above referred.

17. Then coming on the exception 8 to Section 499 of the Indian Penal Code it is extracted as hereunder :-

“It is not defamation to prefer a good faith and accusation against any person to any of those who have lawful authority over that person with respect to the subject of accusation”.

18. It is noticed that the complaint dated 27-10-1987 given by the petitioner therein was to the Superintendent of Police to take necessary action, which was regulated to the Deputy Superintendent of Police for enquiry followed by his investigation and laying the charge sheet and the trial. Therefore, from this it is made clear that the complaint was given to the reason of in lawful authority for the purpose of investigation and to identify the offences or not. But it is not known whether it has beeen made under the good faith or not. There is no evidence made available in this case. But, however, one can infer that the investigation perpetrated in this regard has resulted in the initiation of a criminal case in CC. 224/89 before the learned Judicial Magistrate No. 1, Madurai, and after the full trial, it had ended in conviction : Therefore, for the said reason, I do not want to say anything more rather than to say that this is a case that squarely comes under the purview of the Exception 8 provided to Section 499of the Indian Penal Code.

19. In the light of my foregoing consideration and findings given above, I do not propose to give or express any of my view or opinion with regard to the falsity or genuineness of the alleged imputations found in the passage or whether it amounts to an offence or not. But, however, for the reasons given above, I am of the first firm view that the taking of cognizance of the complaint by the learned Judicial Magistrate on 4-7-1991 for an offence committed on 27-10-1987 almost four years after the commission of the alleged offence is clearly within the teeth of Section 468 of the Code and barring that since it attracts the Exception 8 to Section 499 of Indian Penal Code, the present trial of the case taken in C.C. 570/91, now pending on the file of the learned Judicial Magistrate No. 1, Madurai, has become legally incompetent and not in consonance with the legal mandate and the procedural law and that, therefore, it deserves to be dismissed and quashed. No other points were argued before me by the Bar for the respective parties.

20. In the result, the proceedings in C.C. No. 570 of 1991 now pending on the file of the learned Judicial Magistrate No. 1, Madurai, for the discussions and findings given above, is hereby quashed, petition is allowed. No order as to costs.

21. Petition allowed.

Trichinopoly Ramaswami … vs Kripa Shankar Bhargava

Excerpt:The question of applicability of Exception 9 of Section 499, Indian Penal Code as well as other defence available to the petitioners may be raised before the Trial Court during Trial of the Complaint. But at this stage the same cannot be gone into which may prejudice the case of either side. Besides this, there is no material to consider the said argument. See Balraj Khanna and Ors. v. Moti Ram, AIR 1971 SC 1389. Therefore, submission so made by Shri Dutta in this behalf is of no avail.

    In the instant case writ of summons of Civil Suit No. 2065/86 was directed to be issued to the respondent/complainant at Chhindwara address along with copy of the plaint and, therefore, venue of trial at Chhindwara does not suffer from territorial limits of jurisdiction. Thus the submission so made by Shri Datta has no force and is hereby repelled.

Madhya Pradesh High Court

Trichinopoly Ramaswami … vs Kripa Shankar Bhargava on 24 January, 1990

Equivalent citations: 1991 (0) MPLJ 597

Author: B Lal

Bench: B Lal

ORDER B.M. Lal, J.

1. This petition Under Section 482 read with Sections 397/401, Criminal Procedure Code is directed against an order dated 11-4-1987 by which the Chief Judicial Magistrate, Chhindwara in Criminal Case No. 1034/87 while taking cognizance of an offence Under Section 500, Indian Penal Code directed issuance of process against the petitioner in accordance with provisions of Section 204, Criminal Procedure Code.

2. Brief facts leading to this petition are as under :

Industrial Consultancy Bureau Pvt. Ltd., Kalyan, Bombay (in short ICB Pvt. Ltd.) is a Company registered under the Companies Act of which the petitioners Nos. 1 to 5 are directors, engineers and responsible officers.

3. The Company is engaged in the business of engineering constructions. It entered into a contract with the complainant/respondent Kripa Shankar Bhargava to execute certain work on behalf of the I.C.B. Pvt. Ltd. near Nandan Site at Damua in district Chhindwara.

4. It appears that some dispute of accounts between the Company and its officers on one hand and the complainant Kripa Shankar Bhargava on the other hand, arose and the same led to filing civil suit by the respondent Kripa Shankar valued at Rs. 6,11,300/- in the Court of First Additional Judge to the Court of District Judge, Chhindwara, on 22-6-1986.

5. Similarly, the petitioner I.C.B. Pvt. Ltd. also filed a suit valued at Rs. 7,44,813.71 before the High Court of Judicature at Bombay in original jurisdiction on 29-7-1986 vide Suit No. 2065/86.

6. After receiving writ of summons of Suit No. 2065/86″ and copy of the plaint, according to Kripa Shankar Bhargava, petitioner No. 1 vide para 16 of the plajnt, used per se defamatory imputation i.e. ‘…wrongfully converted… misappropriated of some quantity of steel.’

7. According to Kripa Shankar this defamatory version led him to file a complaint-case on 21-10-1986 against the petitioners, for taking suitable action and punishing them Under Sections 120B, 477A and 500, Indian Penal Code.

8. Respondent/Complainant in the complaint case submitted that he is a progressive businessman of Chhindwara Town and commends respectable position in his home town and outside as well. Therefore, the imputation so made in para 16 of the plaint referred to above has lowered down his prestige in the estimation of his well-wishers.

9. On 10-11-1986, respondent examined himself and one Om Prakash Shukla to establish prima facie case against the petitioners and the learned’ Chief Judicial Magistrate, Chhindwara, by order dated 11-4-1987, having found prima facie case only punishable Under Section 500, Indian Penal Code registered the case against the petitioners and directed issuance of process in accordance with the provisions of Section 204, Criminal Procedure Code.

10. Against this order the present petitioners have come up before this Court invoking inherent and revisional powers, seeking quashing of the impugned order dated 11-4-1987 as well as the entire proceedings pending before the Chief Judicial Magistrate, Chhindwara.

11. Learned Counsel Shri S. C. Dutta appearing for the petitioners made multifold submissions one after another as under :

(a) That, so called pe rse defamatory words used in para 16 of the plaint have been used in good faith and the petitioners are! entitled to take advantage of Exception 9 of Section 499,Indian Penal Code;

(b) That, the plaint was filed by I.C.B. Pvt. Ltd. Company and the same has been verified by petitioner No. 1, Trichinopoly Ramaswami Ardhanani, therefore, the other petitioners Nos. 2 to 5 having no nexus with the alleged use of per se defamatory words in para 16, Chief Judicial Magistrate, Chhindwara exceeded in its jurisdiction in issuing process to the petitioners Nos. 2 to 5 :

(c) That, the suit was filed at Bombay High Court, therefore, Bombay High Court alone has territorial jurisdiction;

(d) That, the matter in issue (Civil Suit No. 2065/86) is sub judice in Bombay High Court and, therefore, Criminal Proceedings pending at Chhindwara be stayed till the decision of Civil Suit No. 2065/86;

(e) That, the so called per se defamatory words said to have been used in the plaint were not made public to be known to the persons in general, therefore no case Under Section 500,Indian Penal Code is made.

12. On the other hand, Shri A. G. Dhande, learned counsel appearing for the respondent/complainant supported the order impugned.

13. Before discussing the points in issue, at this stage, where only direction of issuance of process Under Section 204, Criminal Procedure Code is given, duty casts upon the Court to refrain from passing, any observation so that case of either side may not be prejudiced. Therefore, where the Magistrate acting Under Section 200, Criminal Procedure Code is satisfied himself about the allegations made in the complaint and evidence adduced in that behalf, prima facie, for proceeding against the accused persons in such cases, at this stage, no interference ordinarily is called for either Under Section 482, Criminal Procedure Code or Under Sections 397/401, Criminal Procedure Code until and unless glaring defect in the order impugned is demonstrated, i.e. –

(a) allegation and the evidence appearing on record if taken at their face value, no case is made out;

(b) where such discretion exercised by the Magistrate is capricious or arbitrary;

(c) basically the complaint suffers from some legal defect.

At this juncture, it will not be out of place to state that Under Section 202, Criminal Procedure Code for issuance of process Under Section 204, Criminal Procedure Code, detailed enquiry on merits and demerits of the case is not required, as ultimately after appearance of the accused persons, if the. Magistrate comes to conclusion that no case is made put the accused either will be discharged or acquitted, as the case may be.

14. Facts of the instant case, therefore, are to be tested with the above touch-stone, while giving any finding.

15. Shri Dutta contended that the so called per se defamatory words used in para 16 of the plaint have been used in good faith and the petitioners are entitled to take advantage of Exception 9 of the Section 499, Indian Penal Code. In this regard Shri Dutta strenuously made reference to Bhagat Singh Sethi v. Jindalal, AIR 1966 J. and K. 106, and contended that the petitioners’ case is protected under Exception 9 of Section 499, Indian Penal Code.

16. Suffice to say that arguments advanced by Shri Dutta in this regard taking resort to Exception 9 of Section 499, Indian Penal Code, stating that so called imputations have been made in good faith, has no relevancy at this stage. The question of applicability of Exception 9 of Section 499, Indian Penal Code as well as other defence available to the petitioners may be raised before the Trial Court during Trial of the Complaint. But at this stage the same cannot be gone into which may prejudice the case of either side. Besides this, there is no material to consider the said argument. See Balraj Khanna and Ors. v. Moti Ram, AIR 1971 SC 1389. Therefore, submission so made by Shri Dutta in this behalf is of no avail.

17. Shri Dutta next contended that the plaint is filed before the Bombay High Court by I.C.B. Pvt. Ltd. and the same has been verified by petitioner No. 1 Trichinopoly Ramaswami Ardhanani, therefore, other petitioners Nos. 2 to 5 having no nexus with alleged use of per se defamatory words in para 16, Chief Judicial Magistrate, Chhindwara exceeded in its jurisdiction in issuing process to the petitioners Nos. 2 to 5. Submission so made by Shri Dutta appears to have some force. Bare perusal of the plaint annexed with the petition demonstrates that the averments of the plaint in Civil Suit No. 2065/86 have been verified by petitioner No. 1 Trichinopoly Ramaswami Ardhanani and, therefore, he alone is, prima facie, liable for the offence alleged and the submission so made by Shri A. G. Dhande that the offence committed by a company, every person who at the time of offence was in charge and was responsible to the company for conduct of business of the company, and the company shall be guilty of offence and, therefore, all its office bearers shall be liable to be proceeded against, has no force and it deserves to be rejected. Therefore, submission of Shri Dutta that no case against petitioners Nos. 2 to 5, prima facie is made out is sustained.

18. Shri Dutta also contended that the suit was filed before the Bombay High Court, and therefore, Bombay High Court alone has territorial jurisdiction. In this context Shri Dutta submitted that place of trial should be the territorial jurisdiction/limits of Bombay and not Chhindwara.

19. Law is well settled on this point. In such cases, the Court within whose jurisdiction the publication is made or the Court in whose territorial jurisdiction the defamatory matter is served, circulated or distributed, either Court will have jurisdiction. See Kazi Jalil Abbasi v. State of Uttar Pradesh, 1978 Cr.L.J. NOC 104 Allahabad. In the instant case writ of summons of Civil Suit No. 2065/86 was directed to be issued to the respondent/complainant at Chhindwara address along with copy of the plaint and, therefore, venue of trial at Chhindwara does not suffer from territorial limits of jurisdiction. Thus the submission so made by Shri Datta has no force and is hereby repelled.

20. Next submission of Shri Dutta is that the matter in issue (Civil Suit) is sub judice in Bombay High Court, therefore, Criminal Proceedings pending at Chhindwara be stayed till decision of the Civil Suit No. 2065/86. This submission is devoid of substance. Under the circumstances appearing in this case, proceedings in Civil Suit has nothing to do with the Criminal Proceedings pending at Chhindwara. According to Shri Dhande, learned counsel for respondent complainant, by using per se defamatory words in para 16 of the plaint the offence is complete and even at this stage the petitioner No. 1 if withdraws those words from para 16 of the plaint by making an appropriate application Under Order 6, Rule 16, Civil Procedure Code for striking out the said words, it will be of no help to the petitioners as the offence is complete as soon as the so called per se defamatory words are used. Therefore, question of staying Criminal Proceedings at Chhindwara till decision of Civil Suit at Bombay does not arise.

21. The next point argued by Shri Dutta is that so called per se defamatory words said to have been used in the plaint were not made public to be known to persons in general and, therefore, no case Under Section 500, Indian Penal Code is made out. This argument is only tenable where the letter enclosed in an envelope and is sent to the complainant and in that context it will not be deemed to be publication. But where the plaint is filed containing so called defamatory matter according to the respondent, the same amounts to publication within the meaning of Section 499, Indian Penal Code. In Thangavelu Chettiar v. Ponnammal, AIR 1966 Mad. 363, it has been ruled that filing a plaint or petition containing defamatory matter amounts to publication. Therefore, per se defamatory statement in pleadings, petitions, affidavits etc. of parties to judicial proceedings are offence punishable Under Section 500, Indian Penal Code unless they fall within the exceptions enumerated in Section 499, Indian Penal Code and therefore, the petitioners are at liberty to take resort to exceptions of Section 499, India Penal Code at an appropriate stage.

22. Shri Dhande, however, giving reference to Dhiro Koch and Anr. v. Govinda Dey Mishra Bura Satria, Vol. LXV Indian Cases 204, contended that defamatory statements made by the parties to suit in pleadings are not absolute privilege. I have already expressed my view that at this stage in view of Balraj Khanna’s case (supra), question of applicability of exceptions of Section 499 as well as other defence available to the petitioners may be raised before the Trial Court during Trial of the complaint. But at this stage, the same cannot be adjudicated upon. This question is left open for the parties to argue before the Trial Court.

23. During the course of argument, incidentally Shri Dutta also submitted that how the respondent was defamed by use of the words ‘…Wrongfully converted…misappropriated’… has not been prima facie established. I would again reiterate that at this stage it will not be proper to discuss the point so raised by Shri Dutta, in detail and give any finding which may tend to prejudice the case of either side. Since Shri Dutta made much emphasis on this point, it is necessary to say that defamation is injury to one’s reputation and reputation is what other persons think of Kripa Shankar Bhargava, in the instant case, and not his own opinion about himself. Therefore, respondent/complainant while examining – himself has also a examined one Om Prakash Shukla and has thus, prima facie established the necessary ingredients for taking cognizance within the meaning of Section 204, Criminal Procedure Code.

24. From the discussions aforesaid, this petition is partly allowed to the extent that proceedings initiated against petitioners Nos. 2 to 5 are hereby quashed. However, the proceedings against petitioner No. 1 Trichinopoly Ramaswami Ardhanani alone shall continue before the Chief Judicial Magistrate, Chhindwara. It is, however, made clear that this is a case of 1987. Therefore, the petitioner No. 1 and the respondent/complainant are directed to appear before the Trial Court on 28-2-1990 and the Chief Judicial Magistrate, Chhindwara .shall proceed with the case expeditiously.

Harkirat Singh Sodhi vs Ravinder Singh on 11 July, 2018

Delhi District Court

Harkirat Singh Sodhi vs Ravinder Singh on 11 July, 2018

                            IN THE COURT OF SH. SANJEEV KUMAR-II,
                      ADDITIONAL SESSIONS JUDGE-5, SOUTH-EAST DISTRICT,
                                  SAKET COURTS, NEW DELHI

                                       CRIMINAL REVISION NO. 590/2017

                      In the matter of:

                      Harkirat Singh Sodhi
                      S/o Shri M.S. Sodhi
                      R/o 210-A, Golf Links, New Delhi                                      .....Revisionist

                                                          VERSUS

                      1. Ravinder Singh
                      S/o Shri M.S. Sodhi
                      R/o M-77, Greater Kailash-I,
                      New Delhi-110048

                      2. State
                      5, Shamnath Marg, New Delhi                                          .....Respondents

                      Instituted on       : 01.12.2017
                      Reserved on         : 02.06.2018
SANJEEV               Pronounced on       : 11.07.2018
KUMAR
                                                       JUDGMENT

Digitally signed by SANJEEV KUMAR Date: 2018.07.11 16:53:12 +0530 This revision petition has been filed under Section 397 of the Code of Criminal Procedure, 1973 (in short ‘Code’) for setting aside of order dated 06.07.2017 passed by the learned Metropolitan Magistrate-10, South East District, Saket Courts, New Delhi in CC CR No.590/2017 Harkirat Singh Sodhi v. Ravinder Singh & Anr. Page No.1 of 14 No.89247 of 2016 titled as ‘Ravinder Singh v. Harkirat Singh Sodhi’, whereby revisionist was summoned for the offence punishable under Section 499/500 of the Indian Penal Code, 1860 (in short ‘IPC’).

2. Learned counsel for the revisionist has submitted that the complaint filed by the respondent was premature and not maintainable because alleged imputations were made in FIR No.149 of 2014, Police Station Tughlak Road and further the objections were filed before the Hon’ble Delhi High Court in Testamentary Case No.42 of 2014 and said two cases are still pending trial/disposal and till the time, said cases were finally adjudicated upon and decided, the respondent no.1 has no cause of action for filing of the complaint.

3. Learned counsel for the revisionist has further submitted that Explanation no.4 to Section 499 IPC makes its clear that in order to make of defamation, imputations should actually cause harm to the reputation of the person and without said actual harm being alleged in complaint or proved in pre-summoning evidence, no offence of defamation under Section 499/500 IPC is made out. Exception 8 and 9 to Section 499 IPC attracts in the present case. Respondent herein had not examined any third person to show that he had believed the statement of revisionist ; no such person mentioned in the list of witness.

CR No.590/2017 Harkirat Singh Sodhi v. Ravinder Singh & Anr. Page No.2 of 14

4. Learned counsel for the revisionist has further submitted that Statement of facts does not amount to defamation. Hon’ble Delhi High Court in CS (OS) No.82 of 2005 titled as ‘Devender Kaur & Anr. v. Surjeet Singh & Ors.’ on 08.01.2014 found the said bill to be not genuine and found further various suspicious circumstances surrounding the said will.

5. Learned counsel for the revisionist has further submitted that learned Trial Court was having no jurisdiction to entertain and try the complaint as no cause of action has been arisen within the jurisdiction of learned Trial Court if letter/circular dated 04.01.2015 is discarded. The jurisdiction on the basis of alleged imputations made in FIR No.149 of 2014, Police Station Tughlak Road and the objections filed by the revisionist herein in Testamentary Case No.42 of 2014 before Hon’ble Delhi High Court does not fall in the learned Trial Court. He has placed reliance upon the decisions, namely, Jeffrey J. Diermeier & Anr. v. State of West Bengal & Anr., MANU/SC/0390/2010; Bikramjit Ahluwalia & Ors. v. Simran Ahluwalia & Ors., MANU/DE/1389/2015; Arundhati Sapru v. Yash Mehra, MANU/DE/4096/2013; Aarti Jain v. Uma Shanker Vyas & Ors., MANU/DE/0113/2013 ; Ajay Shah v. Multi Commodity Exchange of India & Ors., MANU/MH/2004/2009 and S.P. Satsangi v. Krishna Kumar Satsangi, LAWS (DLH)-2007-4-11.

CR No.590/2017 Harkirat Singh Sodhi v. Ravinder Singh & Anr. Page No.3 of 14

6. On the other hand, learned counsel for respondent no.1 has opposed the revision petition stating that the letter/circular dated 04.01.2015 was issued/circulated in Greater Kailash-I, New Delhi and therefore, learned Trial Court is having the jurisdiction to entertain and try the case. The circular is within the public domen. In suit filed before the Hon’ble Delhi High Court and FIR, the complainant/respondent no.1 is not party and therefore, there is no question of trial of conduct of complainant. The defence of good faith as mentioned in exceptions eight and nine to Section 499 IPC cannot be taken into consideration at the time of summoning of the accused and same can be proved during the trial by the accused. The Judgment of Hon’ble Delhi High Court does not say that the respondent no. 1 had forged the will. Said Judgment only says about suspicious circumstances and in said case, respondent no. 1 was not a party. Only mensrea/intention is material for defamation and there is no need of lowering down the reputation. At the stage of summoning of the accused, only prima facie case is to be same. In Civil Law circulation is required but in Criminal Law no such circulation is needed for the defamation. He has placed reliance upon decisions, namely, Jeffrey J. Diermeier v. State of Bengal, MANU/SC/0390/2010, Aarti Jain v. Uma Shanka Vyas, MANU/DE/0113/2013; Bikramlit Ahluwalia v. Simran Ahluwalia, MANU/DE.1389/2015; Ajay Shah v. Multi Commodities Exchange of India; MANU/MH/2004/2009 and Arundhati Sapru v. Yash Mehra, MANU/DE/4096/2013.

CR No.590/2017 Harkirat Singh Sodhi v. Ravinder Singh & Anr. Page No.4 of 14

7. The respondent no.1-complainant has filed complaint under Section 200 of the Code for the offence under Section 499/500 IPC against the revisionist-accused. The revisionist has challenged in this revision the impugned order whereby revisionist-accused was summoned for the offence under Section 499/500 IPC finding prima facie case against him. In pre-summoning evidence, respondent no.1- complainant has examined himself as CW-1 and one Rupak Vaish as CW-2.

8. The learned Trial Court has passed impugned order at the stage of issuance of summons to the revisionist. Now, question is what are required to be considered at the stage of taking cognizance and issuance of summon. In Bhushan Kumar & Anr. v. State (NCT of Delhi) & Anr. (Criminal Appeal no. 612 of 2012, decided on 04.04.2012), Hon’ble Supreme Court held that at the stage of taking cognizance, the magistrate has to be satisfied whether there is sufficient ground of proceeding and not whether there is sufficient ground for conviction and whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry.

9. Hon’ble three-Judge Bench of the Supreme Court in Sonu Gupta v. Deepak Gupta & Ors. [Criminal Appeal Nos. 285-287 of 2015 decided on 11.02.2015] held that 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 material 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. It is also well settled that cognizance is taken of the offence and not the offender. Hence, at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of charge against that particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial.

10. Hon’ble Supreme Court in Amarullah and Anr. v. State of Bihar and Ors. [Criminal Appeal No. 299 of 2016] held on 12.04.2016 that it is well settled that at the stage of taking cognizance, the court should not get into the merits of the case made out by the police, in the chargesheet filed by them, with a view to calculate the success rate of prosecution in that particular case. At this stage, the court’s duty is limited to the extent of finding out whether from the material placed before it, offence alleged therein against the accused is made out or not with a view to proceed further with the case.

11. In Rakhi Mishra v. State of Bihar & Ors., Criminal Appeal No.1499 of 2017 decided on 24.08.2017, Hon’ble Supreme Court has reiterated the judgment of Sonu Gupta’s case regarding parameters which are required to be seen at the stage of taking cognizance.

12. In Fiona Shrikhande v. State of Maharashtra & Anr., Criminal Appeal No. 1231 Of 2013 decided on 22.08.2013, Hon’ble Supreme Court has held that:

“11. We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards issuance of process in criminal cases is well settled. At the complaint stage, the CR No.590/2017 Harkirat Singh Sodhi v. Ravinder Singh & Anr. Page No.7 of 14 Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint. In Nagawwa v. Veeranna Shivalingappa Konjalgi and Others (1976) 3 SCC 736, this Court held that once the Magistrate has exercised his discretion in forming an opinion that there is ground for proceeding, it is not for the Higher Courts to substitute its own discretion for that of the Magistrate. The Magistrate has to decide the question purely from the point of view of the complaint, without at all adverting to any defence that the accused may have.”

 

13. In Rajendra Rajoriya v. Jagat Narain Thapak & Anr., Criminal Appeal No.312 of 2018 decided on 23.02.2018, Hon’ble Supreme Court has held that at the stage of taking cognizance, the Magistrate has to satisfy himself about the satisfactory grounds to proceed with the complainant and at this stage, the consideration should not be whether there is a sufficient ground for conviction.

14. It is clear from the above mentioned judgments that at the stage of taking cognizance and issuance of summon, the Magistrate has to be satisfied whether there is sufficient ground of proceeding and not whether there is sufficient ground for conviction, and whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the inquiry. Hence, at the stage of taking cognizance and issuance of summons, the learned Magistrate is required to apply his mind to find out whether prima facie case has been made out for taking the cognizance and summoning the accused.

15. In respect of territorial jurisdiction of learned Trial Court, it is sufficient to say that complainant (respondent no. 1 herein) has stated in the complainant and his pre-summoning evidence regarding circulation a defamatory letter on 04.01.2015 by the accused (revisionist herein) in Greater Kailash, RWA Society. At the stage of summoning of the accused, only prima facie view is to be taken.

 

16. It is mentioned in the grounds of the revision that case of the revisionist falls in the eighth and ninth exceptions to Section 499 IPC. Learned counsel for the revisionist has argued that his case/defence also falls in explanation 4 to Section 499 of the IPC. It is well settled that the question whether case of revisionist/accused is covered by any of the explanation/exceptions to Section 499 of the IPC, is required to be determined at the trial. In Jeffrey J. Diermeier’s case (supra), it has been observed by the Hon’ble Supreme Court that:

“32. 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.”

17. In Aarti Jain’s case (supra), Hon’ble Delhi High Court has held that the question whether case of respondents/accused is covered by any of the explanation/exceptions to Section 499of the IPC, is required to be determined at the trial.

18. In Ajay Shah’s case (supra), it has been observed by the Hon’ble High Court of Mumbai that:

“12. Section 105 of the Evidence Act says that when a person is accused of an offence, the burden of proving the existence of circumstances proving that the case falls within any of the general exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the same Code, or any other law defining the offence is upon him and the Court shall presume the absence of such circumstances. Thus, at the state of the issuance of the process the Magistrate if satisfied that the allegations in the complaint, taken at their face value, do construe an offence and there is a prima facie material in support of them can issue process and is not required to consider whether the case falls in any of the exceptions. That stage would arise after the plea is recorded and at the trial. The burden of proving that the case falls under any of the exceptions is on the persons claiming the exception.”

 

19. Learned counsel for the revisionist has submitted that respondent no. 1 herein had not examined any third person to show that he had believed the statement of revisionist ; no such person mentioned in the list of witness. The respondent no. 1-complainant has also examined one Rupak Vaish (CW-2) in his pre-summoning evidence who has deposed that recently when they got the circular around first week of January 2015, they were shocked to go through the contents of the circular as it contains very defamatory things about that family. It is also deposed by CW-2 that after receiving the circular they all resident gathered together and took up that matter and discussed that circular was wrong and the contents were totally defamatory and the circular has caused harm to the family of Ravinder Singh. Further, in complaint filed by the respondent no. 1 against the revisionist before learned trial court, it is averred in para no. 11 that these false and defamatory statements by the accused against the complainant are being made with the clear intention and knowledge to harm the reputation of complainant and lower his image in the eyes of public. In Arundhati Sapru’s case (supra), it has been observed by the Hon’ble High Court of Delhi that:

“10. 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 500IPC requires blameworthy mind and is not a statutory offence requiring no mens rea.”

20. Learned counsel for the revisionist has taken the ground in the revision that the statement of fact does not amount to defamation. In Judgment passed by Hon’ble Delhi High Court in CS (OS) 82 of 2015 dated 08.01.2014, it is not mentioned that the respondent no.1 (herein) has forged the will in question. In the said case, respondent no.1 herein was not a party. I am not agree with the contention of the learned counsel for revisionist that complaint is premature. There are specific defamatory allegations against the respondent no.1 as mentioned in the complaint and pre-summoning evidence. The said allegations leveled by the revisionist against the respondent no.1 herein are not subject matter of trial in other petition. At the stage of summoning of the accused, only prima facie case is to be seen by learned Trial Court. Keeping in view the complaint, pre-summoning evidence and documents, it can be said that there are prima facie case against the revisionist for summoning him for the offence punishable under Section 500 IPC and therefore, learned Trial Court has rightly summoned the revisionist for the said offence. Hence, revision is dismissed. The observations mentioned in this judgment shall not have bearing on merits of the case.

Announced in the open Court
on 11.07.2018                      (SANJEEV KUMAR-II)
                                  Additional Sessions Judge-05
                           South East District, Saket Courts, New Delhi




CR No.590/2017      Harkirat Singh Sodhi v. Ravinder Singh & Anr.   Page No.14 of 14

 

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

$~
*    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

O P Aggarwal vs State (Govt. Of Nct Of Delhi) & Ors.

Excerpt:  

 

 

Delhi High Court

O P Aggarwal vs State (Govt. Of Nct Of Delhi) & Ors. on 29 January, 2019

                                                              SHAKUN ANAND

                                                              04.02.2019 11:30

$~3
        IN THE HIGH COURT OF DELHI AT NEW DELHI
                                           Decided on: 29th January, 2019
+       CRL.M.C. 2698/2016
        O P AGGARWAL                                      ..... Petitioner
                 Through:             Mr. Bikash Vishwakarma, Advocate
                                      with petitioner in person.

                             versus

    STATE (GOVT. OF NCT OF DELHI) & ORS...... Respondents
             Through: Mr. Sanjeev Sabharwal, APP for the
                       State
                       Mr. Ankit Aggrawal, Advocate for
                       R-2.
                       Mr. Rahul Tyagi, Advocate with
                       Ms. Mahima Deepak, Ms. Roopali
                       Wadhwan, & Ms. Kanika Jain,
                       Advocates for R-3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA

                         ORDER (ORAL)

1. The petitioner’s son had been married to the second respondent on 15th August, 2007. On 31.05.2010, the second respondent lodged first information report (FIR) No.88/2010 alleging offences punishable under sections 498-A/406/34 of the Indian Penal Code, 1860 (IPC) with CAW Cell having been committed against her by the persons against whom the said accusations were made, including the petitioner herein. The investigation was completed and report (charge sheet) under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C.)was submitted on which the Metropolitan Magistrate took cognizance summoning, amongst others, the petitioner as accused. It may be added here that the son of the petitioner had absconded and was declared a proclaimed offender on 29.08.2011 in the said criminal case.

2. On 17.02.2013, the second respondent gave an interview to the third respondent, whereby a video footage was telecast on the television channel network in which the latter was employed. Terming the utterances made and images/captions shown in the said interview telecast on the said TV channel to the public at large to be defamatory, the petitioner herein instituted a criminal complaint case (CC No.89/2013) seeking prosecution of the second and third respondents, besides parents of the second respondent, and the chief editor of the news channel in which the third respondent was a reporter. On the basis of preliminary inquiry under sections 200/202 Cr.P.C., the Chief Metropolitan Magistrate found grounds to proceed against the second and third respondents, as indeed against the chief editor of the news channel, besides the anchor of the programme, thus, summoning them to answer accusations of the offence under Section 500 read with Section 34 IPC.

3. The aforesaid order of the Metropolitan Magistrate was assailed by the second and third respondents in the court of sessions by criminal revision petition Nos. 157/2016 and 112/2016. The revisional court, by order dated 19.05.2016, held that no case of defamation against the said persons as well as the chief editor of the news channel had been made out and in reaching the said conclusion it, inter alia, noted that the petitioner (the complainant of the case) had not been named, no specific individual or family having been referred to, the remarks to which exception was taken not to be construed as an attack on reputation. As a result of the order dated 19.05.2016, the proceedings in the criminal case were drawn to a close.

4. Feeling aggrieved, the present petition was filed assailing the order of the revisional court to above effect.

5. After some hearing, it has been conceded by the learned counsel representing the second and third respondents that the revisional court has not considered the material on record in entirety, particularly the contents of the video footage, which was presented in the form of compact disc (CD), but not even looked into, nor commented upon, so as to verify the correctness or otherwise of the submissions made to the effect that there has been no reference made, not even an oblique one, to the petitioner in the entire telecast. In view of the above, it is clear that the revisional court’s order is perverse and cannot be allowed to stand.

6. In these facts and circumstances, this court agrees with the submissions on the both sides that the impugned order of revisional court be set aside and the matter be remitted to the revisional court for fresh consideration and fresh adjudication after hearing all sides and taking into consideration the material on record in entirety. Ordered accordingly.

7. Consequent to the above, the proceedings in the revisional court on the petition of second and third respondent stand revived. They shall be taken up for further proceedings in accordance with law by the said court on 27th February, 2019. Parties to appear accordingly.

8. In the given facts and circumstances, it is also desirable that the proceedings in the court of Metropolitan Magistrate be kept in abeyance till the revisional court takes decision. Ordered accordingly

9. The petition stands disposed of in above terms.

R.K.GAUBA, J.

JANUARY 29, 2019 vk