Karmraj Singh And Others vs State Of U.P. And Another
2021 Latest Caselaw 11490 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									      A.F.R.
 
Court No. - 93
 

 
Case :- APPLICATION U/S 482 No. - 27519 of 2007
 

 
Applicant :- Karmraj Singh And Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Anurag Pathak
 
Counsel for Opposite Party :- Govt. Advocate,Sumit Daga
 

 
Hon'ble Sameer Jain,J.

1. List has been revised. Learned counsel for the applicants and learned AGA for the State are present. None present on behalf of opposite party no.2.

2. Heard Sri Anurag Pathak, learned counsel for the applicants, Sri M.P.S. Gaur, learned A.G.A. for the State and perused the record of the case.

3. The present application under Section 482 Cr.P.C. has been filed by the applicants with a prayer to quash the further proceedings of Complaint Case No. 1317 of 2007, under sections 500, 211, 120B IPC pending before learned Judicial Magistrate (II), Saharanpur.

4. Perusal of the record shows that opposite party no.2 filed a criminal complaint against applicants on 26.03.2007 in the Court of Additional Chief Judicial Magistrate-I, Court No.19, Saharanpur with the allegation that he (opposite party no.2) and applicant no.1 were posted as guards in sub-prison Roorki and he (opposite party no.2) lodged a criminal complaint against applicant no.1 and his family members under Sections 147, 148, 149, 323, 307, 504, 506, 427, 460 IPC, which was finally decided on 13.08.2004 by Additional District and Sessions Judge, Roorki and applicant no.1 and other accused persons were found guilty and were convicted under Section 323 IPC, therefore, due to that reason applicant no.1 was having enmity with opposite party no.2 and he (applicant no.1) moved an application under Section 156(3) Cr.P.C. on false allegations against opposite party no.2 and his family members. 5. On 27.03.2001 a case was registered against him (opposite party no.2) under Sections 323, 316, 504 IPC at Case Crime No. 58 of 2001 at Police Station Gangnahar Roorki. It is further alleged that opposite party no.2 was arrested and during investigation he remained in Roorki jail for about 12 days and after investigation, charge-sheet was filed against opposite party no.2 and his wife under Sections 323, 504, 506 IPC and no charge-sheet was filed under Section 316 IPC. On 24.04.2006, trial court acquitted opposite party no.2 and his wife under Sections 504, 506 IPC, but convicted them under Section 323/34 IPC. It is further mentioned in the complaint that opposite party no.2 challenged the order of the trial court dated 24.04.2006 before the Court of Sessions in Criminal Appeal No. 53 of 2006. On 31.07.2006, the appeal filed by opposite party no.2 was allowed and conviction order dated 24.04.2006 passed by the trial court was set aside by the Court of Sessions and opposite party no.2 and his wife Smt. Neelam Dixit were acquitted. It is further mentioned in the impugned complaint that as opposite party no.2 and his family members were having very good reputation in the society, therefore, due to false case lodged by applicant no.1, their social image was badly damaged and they were defamed and due to false case lodged by applicant no.1, the opposite party no.2 could not be promoted, therefore, applicants may be summoned and convict under Sections 500, 501, 211, 120B IPC.

6. In support of the complaint, opposite party no.2 examined himself under Section 200 Cr.P.C. and witnesses Ram Charan and Rajendra Singh were examined under Section 202 Cr.P.C.

7. On 05.07.2007, ACJM-I, Saharanpur summoned the applicants under Sections 500, 211, 120B IPC.

8. Learned counsel for the applicants contented that as the trial court convicted opposite party no.2 and his wife under Section 323/34 IPC, therefore, it cannot be said that case lodged by applicant no.1 was a false case, even, if the appellate court allowed the appeal of opposite party no.2 and acquitted him of all the charges. Therefore, prima facie no offence under Sections 500, 211, 120B IPC is made out against the applicants and further as per Exception eight to Section 499 IPC no offence under Section 500 IPC is made out against applicants. He further contended that all the applicants are the resident of District Nai Teehri (Uttrakhand), therefore, they reside beyond the jurisdiction of the Court of District Saharanpur and as per Section 202(1) Cr.P.C., an inquiry or investigation was necessary before issuing summons to applicants, which was not done/conducted in the present case and without any inquiry/investigation, learned Magistrate merely on the basis of statements recorded under Sections 200 and 202 Cr.P.C. issued summons against the applicants, therefore, on this ground also summoning order dated 05.07.2007 is liable to be set aside.

9. Learned counsel for the applicants also submitted that from the perusal of the complaint as well as the statements of witnesses recorded under Section 200, 202 Cr.P.C., it is apparent that cause of action, if any, can only arise at Roorki and not in Saharanpur, therefore, impugned complaint dated 26.03.2007 filed by opposite party no.2 in the Court of ACJM-I, Court No.19, Saharahpur is bad in law and Magistrate of District Saharanpur was not having jurisdiction to try the case, therefore, from this angle too, summoning order dated 05.07.2007 is liable to be quashed.

10. Per contra, learned A.G.A. submitted that perusal of the complaint clearly shows that the application under Section 156(3) Cr.P.C. was moved by the applicant no.1 against opposite party no.2 and his wife only due to the reason that earlier opposite party no.2 lodged a criminal complaint against applicant no.1 and his family members, in which, a conviction order was passed, therefore, the FIR lodged against opposite party no.2 and his wife in pursuance of application moved under Section 156(3) Cr.P.C. by applicant no.1 cannot be said to be filed/lodged in good faith and as appellate court found the allegation false, therefore, prima facie offence under Sections 500, 211, 120B IPC is made out against the applicants and benefit of Exception eight to Section 499 IPC cannot extended in favour of applicants. He further contended that as learned trial court recorded the statements of witnesses under Section 202 Cr.P.C., therefore, trial court conducted an inquiry, as desired under law, therefore, present application moved on behalf of applicants is liable to be dismissed.

11. I have heard both the parties and perused the record of the case. The first argument advanced by learned counsel for the applicants is that as trial court convicted the opposite party no.2 on the complaint lodged by applicant no.1 and only in appeal, opposite party no.2 and his wife were acquitted, therefore, it cannot be said that applicant no.1 was having any intention to harm the opposite party no.2 and complaint/application moved by applicant no.1 was false and, therefore, applicants are entitled to get benefit of Exception eight to Section 499 IPC.

Section 499 of Indian Penal Code, which defines the defamation runs as follows:-

"499. Defamation.--Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Explanation 1.--It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.

Explanation 2.--It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3.--An imputation in the form of an alternative or expressed ironically, may amount to defamation.

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

First Exception.--Imputation of truth which public good requires to be made or published.--It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.

Second Exception.--Public conduct of public servants.--It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.

Third Exception.--Conduct of any person touching any public question.--It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.

Fourth Exception.--Publication of reports of proceedings of Courts.--It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.

Explanation.--A Justice of the Peace or other officer holding an inquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.

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

Sixth Exception.--Merits of public performance.--It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.

Explanation.--A performance may be substituted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.

Seventh Exception.--Censure passed in good faith by person having lawful authority over another.--It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.

Eighth Exception.--Accusation preferred in good faith to authorised person.--It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.

Ninth Exception.--Imputation made in good faith by person for protection of his or other's interests.--It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.

Tenth Exception.--Caution intended for good of person to whom conveyed or for public good.--It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good."

12. From the perusal of Section 499 IPC, it is apparent that the present matter can fall under 8th exception, but the question is whether at the time of issuing summons, on the basis of exceptions to Section 499 IPC, a criminal defamation complaint can be dismissed?

13. The law is well settled that a person, who pleads the exception has the burden to prove the same and, therefore, at the stage of issuing summons, it is not possible to give advantage of any exceptions to Section 499 IPC including 8th exception to the accused persons, as accused can only take advantage of the same during trial.

14. This question has been decided by Hon'ble Supreme Court in case of Subramanian Swamy Vs. Union of India, Ministry of Law and others (2016) 7 SCC 221. Hon'ble Supreme Court in this case in paragraph No. 209 observed as under:-

"It is settled position of law that those who plead Exception must prove it. It has been laid down in M.A. Rumugam (supra) that for the purpose of bringing any case within the purview of the Eighth and the Ninth Exceptions appended to Section 499 IPC, it would be necessary for the person who pleads the Exception to prove it. He has to prove good faith for the purpose of protection of the interests of the person making it or any other person or for the public good. The said proposition would definitely apply to any Exception who wants to have the benefit of the same. Therefore, the argument that if the said Exception should be taken into consideration at the time of the issuing summons it would be contrary to established criminal jurisprudence and, therefore, the stand that it cannot be taken into consideration makes the provision unreasonable, is absolutely an unsustainable one and in a way, a mercurial one. And we unhesitatingly repel the same"

15. Thus, the argument advanced by learned counsel for the applicants that in view of 8th exception to Section 499 IPC, the impugned complaint as well as summoning order both are liable to be quashed, cannot be accepted as it can only be proved by the applicants during trial and not at this stage.

16. The next argument was that applicants are the resident of Uttarakhand, therefore, they reside beyond the jurisdiction of Additional Chief Judicial Magistrate-I, Court No.19, Saharanpur, who issued summons to applicants, therefore, as per Section 202(1) Cr.P.C. before issuing summons to applicants an inquiry/investigation was necessary, which was not done in the present matter.

17. The law in this regard is also well settled that as per Section 202(1) Cr.P.C. if a criminal complaint was filed before the Magistrate against a person, who resides outside his jurisdiction then before issue of process against him it is mandatory for the Magistrate to either inquire the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit. A reference in this regard may be taken from Birla Corporation Limited Vs. Adventz Investments and Holdings Limited and others (2019) 16 SCC 610. (Paras 30, 31 & 32)

18. Now, the question is whether in the present case before issuing summons to applicants, learned Magistrate conducted any inquiry/investigation or not as contemplated under Section 202(1) Cr.P.C. The record of the case shows that two witnesses, namely Ram Charan and Rajendra Singh were examined under Section 202 Cr.P.C. and summoning order dated 05.07.2007 shows that trial court at the time of issuing process to the applicants relied upon the statements under Sections 200 and 202 Cr.P.C. Now, the question is whether statements of witnesses recorded under Section 202 Cr.P.C. is an inquiry for the purpose of Section 202(1) Cr.P.C. or not.

19. Hon'ble Supreme Court in the case of Vijay Dhanuka and others Vs. Najima Mamtaj and others (2014) 14 SCC 638 after observing that an inquiry/investigation as contemplated under Section 202(1) Cr.P.C. is necessary before issuing summons to accused if they reside beyond the jurisdiction of trial court, further observed in paragraph No. 14 as follows:-

"In view of our answer to the aforesaid question, the next question which falls for out determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code. The word "inquiry" has been defined under Section 2(g) of the Code, the same reads as follows:-

2(g) 'inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or court;

It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or the court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code."

20. Thus, from the judgment of Vijay Dhanuka case (supra), it is apparent that if Magistrate examined witnesses under Section 202 Cr.P.C. and if he was satisfied with the statements recorded under Section 200 Cr.P.C. and 202 Cr.P.C., that accused should be summoned then he can summon them even those accused resides beyond its jurisdiction, as the statement recorded under Section 202 Cr.P.C. is an inquiry as defined under Section 2(g) of Cr.P.C.

21. In the present case, learned trial court examined Ram Charan and Rajendra Singh under Sections 202 Cr.P.C. and relied upon their statements at the time of issuing process, therefore, in view of Hon'ble Supreme Court in Vijay Dhanuka case (supra), it cannot be said that without conducting any inquiry, learned Magistrate issued summons to applicants. Thus, this point raised by learned counsel for the applicants also fails.

22. The last contention raised by learned counsel for the applicants is that learned Additional Chief Judicial Magistrate-I, Court No. 19, Saharanpur was not having jurisdiction to try the case as all the alleged offences under Section 500, 211, 120B IPC, in which, applicants were summoned were committed in Roorki and not in District Saharanpur. I find force in this argument.

23. Perusal of the complaint and statements recorded under Sections 200 and 202 Cr.P.C. shows that application under Section 156(3) Cr.P.C. was moved by applicant no.1 against opposite party no.2 and his wife before Judicial Magistrate, Roorki and FIR was also lodged at Police Station Gangnahar, Roorki. The trial court situated at Roorki conducted the trial of opposite party no.2 and his wife and convicted them under Section 323/34 IPC and further the appellate court, who acquitted the opposite party no.2 and his wife, was also not situated in District Saharanpur, therefore, admittedly the alleged offences were committed in Roorki and not in District Saharanpur. Now, the question is whether cause of action of the present case can arise in District Saharanpur or not.

24. Section 177 of The Code of Criminal Procedure states about the jurisdiction of the criminal courts in inquiries and trials, which reproduced as under:-

"177. Ordinary place of inquiry and trial. Every offene shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed."

25. As per Section 177 of The Code of Criminal Procedure an offence shall ordinarily be inquired and tried by the court within whose jurisdiction it was committed. As, I have already observed that the alleged offences in which applicants were summoned were committed in District Roorki, therefore, as per Section 177 of The Code of Criminal Procedure, the Additional Chief Judicial Magistrate-I, Court No.19, Saharanpur was not having jurisdiction to try the same, as there is no evidence on record, which can show that the act done in Roorki was having any consequence which has ensued in District Saharanpur, therefore, no advantage of Section 179 Cr.P.C. may be given to opposite party no.2.

26. Thus, in my considered view ACJM-I, Saharanpur was not having jurisdiction to try the present case.

27. Therefore, present application under Section 482 Cr.P.C. is allowed and impugned complaint being Complaint No. 1317 of 2007 under Sections 500, 211, 120B IPC pending in the Court of Additional Chief Judicial Magistrate-I, Court No.19, Saharanpur and summoning order dated 05.07.2007 are hereby quashed.

Order Date :- 16.12.2021

AK Pandey