Shri Dagdu Patole, Advocate And ... vs Shantaram Ganpat Dorge, Advocate ...
2003 Latest Caselaw 711 Bom

JUDGMENT

J.G. Chitre, J.

1.This petition takes exception to the act of Judicial Magistrate, F.C., Ghodnadi who issued process against all the petitioners for offence punishable under provisions of Section 500 r/w Section 34 of Indian Penal Code.

2. The subject matter of the said complaint is an application which was signed by petitioners No. 2 to 11, dated 12/1/2000. The said application was addressed to Superintendent of Police, Pune Rural, District Pune. A complaint was made out that the Investigating Officer, who was doing the investigation in respect of death of one Tarabai Balu Vadghule was not investigating the said crime properly and was acting under the influence of respondent No. 1 Shantaram Ganpat Dorge, Advocate, The copies of the said application were sent to the Chief Minister, Maharashtra State, Mumbai; Home Minister, Maharashtra State, Mumbai; Sabhapati Legislative Assembly, Maharashtra, Mumbai; Leader of opposition Legislative Council Maharashtra, Mumbai; Collector, Pune; Chemical Analyser, Ganeshkhind, Pune; Inspector General of Police Maharashtra State, Mumbai; D.I.G. Police, Kolhapur, Range, maharashtra State; CID Officer In-charge (Crime) Detection and Investigation (Pune). Being aggrieved by the imputations made in the said application, respondent No. 2 filed a Criminal Complaint in the Court of J.M.F.C. Ghodnadi, at Shirur, District Pune. The learned Magistrate issued process against the respondents (presence petitioners) in respect of offence punishable under Section 500 r/w 34 of Indian Penal Code.

3. Shri Rahul Kate, Counsel appearing for the petitioners, submitted that petitioner No. 1, 12 and 13 did not sign the said application and therefore, they cannot be said to be the persons who published such imputation, which was likely to bring them under purview of provisions of Section 499 of I.P.C. He submitted that it being so, the process which has been issued by the learned Magistrate against them be quashed.

4. Repelling this submission which happens to be the gist of the argument advanced by Shri Rahul Kate, Shri Vilas Tapkir, Counsel appearing for respondent No. 1, submitted that there are some affidavits of certain persons which show that these persons have played some part in publishing the said imputations, defaming respondent No. 1. He pointed out that the relations of petitioner No. 1 and respondent No. 1 were strained on account of their profession as advocates. He pointed out that their relations were also strained on other count in respect of controversy relating to properties. Shri Tapkir submitted that in view of all these things, the learned Magistrate happens to be correct in issuing the process against petitioner No. 1. He pointed out that the role which has been played by petitioner No. 12 and 13 is also eloquent and that also brings them in the array of accused in the said complaint. He prayed that this petition be dismissed.

5. Section 499 of Indian Penal Code provides that,

"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 hartful 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 the person, 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.

Illustrations

(a) A says-"Z is an honest man; he never stole B's watch"; intending to cause it to be believed that Z did steal B's watch. This is defamation, unless it fall within one of the exceptions.

(b) A is asked who stole B's watch. A Points to Z, intending to cause it to be believed that Z Stole B's watch. This is defamation unless it fall within one of the exceptions.

(c) A draws a picture of Z runing away with B's watch, intending it to be believed that Z stole B's watch. This is defamation, unless it fall within one of the exceptions.

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.

Illustration

It is not defamation in A to express in good faith any opinion whatever respecting Z's conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending a such meeting, in forming or joining any society which invites the public support in voting or canvassing for a particular candidate for any situation in the efficient discharges of the duties of which the public is interested.

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 of 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.

Illustrations

(a) A says-" I think Z's evidence on that trial is so contradictory that he must be stupid or dishonest". A is within this exception of he says that is in good faith, in as much as the opinion which he express respects Z's character as it appears in Z's conduct as a witness, and no further.

(b) But if A says-"I do not believe what Z asserted at that trial because I know him to be a man without veracity, A sit not within this exception, in as much as the opinion which he express of Z's character, is an opinion not founded on Z's conduct as a witness.

Sixth Exception.- Merits of public performances.- It is not defamation to express in good faith any opinion respecting the merits of any performance which is 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.

Illustrations

(a) A person who publishes a book, submits that book to the judgment of the public.

(b) A person who makes a speech in public, submits that speech to the judgment of the public.

(c) An actor or singer who appears on a public stage, submits his acting or signing in the judgment of the public.

(d) A says of a book published by Z.-"Z's book is foolish; Z must be a weak man. Z's book is indecent; Z must be a man of impure mind" A is within the exception, if he says this in good faith, in as much as the opinion which he expresses of Z respects Z's character only so far it appears in Z's book, and no further.

(e) But if A says- "I am not surprised that Z's book is foolish and indecent, for he is a weak man and a libertine". A is not within this exception, in as much as the opinion which he expresses of Z's character is an opinion not founded on Z's book.

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 concerned by law or arising out of a lawful contract made with that other, to pass in other in matters to which such lawful authority relates.

Illustration.

A Judge ensuring in good faith the conduct of a witness, or of an officer of the Court; a head of a department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children; a school master, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissness in service; a banker censuring in good faith the cashier of his bank of the conduct of such cashier as such cashier- are within the exception.

Eight 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 of the subject matter of accusation.

Illustration.

If A in good faith accuse Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z's master; if A in good faith complains of the conduct of Z, a child, to Z's father-A is within this exception.

Ninth Exception.-Imputation made in good faith by person for protection of his or other's interest.-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.

Illustrations

(a) A, a shopkeeper, says to B, who manages his business- "sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty". A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests.

(b) A, a Magistrate, in making a report of his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception.

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."

6. Exception 8 provides that, 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. Thus, exception 8 to Section 449 of I.P.C. would come in picture so far as present writ petition is concerned. Third exception would also play appropriate role in the complaint around which this writ petition is revolving. Exception 3rd says that 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.

7. In exception 3rd words used are "and no further" In 8th exception words "in good faith" have been used. Nothing is said to be done in good faith which is not done with due care and caution. Exactly the same has been indicated by word "and no further". Therefore, the persons who were signatories to the said application should have acted in good faith and with due care and caution. So also they should have acted in proportion and no further. Therefore, they should have restricted themselves in venting out their grievance to person in authority when said complaint was made. Therefore, taking liberal view of the complaint made to the learned Magistrate, petitioners No. 2 to 11 should have been prima facie entitled to get themselves justified in view of exception 3rd and 8th to Section 499 of I.P.C., because, a person feeling aggrieved of so called injustice to him would be said to be justified in making a grievance or making a complaint about the said injustice to person in authority. But while doing so, he is also expected to act in good faith and expected to put a grievance to person in authority. The said aggrieved person is not entitled in law to make reckless allegations, to whomsoever he desires. He is bound to make such complaint only to those concerned persons having authority over the persons against whom such allegations are made.

8. In this case, by taking maximum liberal view in favour of petitioners 2 to 11, they should be prima facie said to be not justified in making said complaint to other persons to whom copies have been sent. Apart from that certainly, they were not entitled to make such complaint to Chemical Analyser, State of Maharashtra who was not having any authority. Hence, their act cannot be said to have been done in good faith and it can be said prima facie that they were not keeping themselves within the limitation provided by exception 3rd of Section 499 of Indian Penal Code.

9. Whenever a complaint is presented before the Magistrate, he has to apply his judicial mind to the allegations made in the complaint itself and annexure annexed to such complaint. He has to examine complainant and other witnesses as he finds necessary to do so. Thereafter he has to consider the allegations made in the complaint itself and materials annexed to the complaint and the statement of the person who he has examined. He cannot travel beyond that. Prominence has to be given to the allegations made in the complaint. The aggrieved person cannot make the complaint to the person who does not have authority over the person against whom such complaint has been made. That would not be with "good faith" on the contrary it would indicate "malice" indirectly and implicitly.

10. If the present complaint is considered that way, it reveals that the allegations which have been made against petitioner No. 1 are half-hearted allegations. Even in the affidavit a reference has been made to the animosity between petitioner No. 1 and respondent No. 1 on account of their profession of advocates. The learned Magistrate should have kept in view all these things while applying his judicial mind before thinking whether he should take cognizance of the said complaint or not. Had that been done, there was no conclusion except one for one to come to conclusion that there was no case made out for issuing process in context with petitioner No. 1 Same is the criteria available for petitioners No. 12 and 13. They are not signatories to said application. Therefore, prima facie they cannot be said to be the persons making such imputation against respondent No. 1. The learned Magistrate should have taken the cognizance of this aspect while thinking whether he should issue the process against them or not.

11. Leaving aside the case of petitioner No. 1, 12 and 13 a prima facie case has been made out for conducting a trial against petitioners No. 2 to 11 and therefore, the process issue against them by the learned Magistrate is proper, correct and therefore, legal.

12. Thus, the petitioner preferred by petitioner No. 1, 12 and 13 stands allowed and the process issued against them stands quashed. The petition which has been preferred by the petitioner No. 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 stands dismissed. The Magistrate is entitled to proceed against them in conducting the trial in accordance with the provisions of law. The stay granted by this Court to the hearing of the said criminal proceeding stands vacated.

Parties concerned to act on a simple copy of this order, duly authenticated by the Court Scenographer / Sheristedar of this Court.