Shri V.M. Telang And Dr. D.K. Mody vs State Of Maharashtra And Dr. N.D. ...
2003 Latest Caselaw 433 Bom

JUDGMENT

J.G. Chitre, J.

1. This petition is pending for hearing since long and it has been mentioned in the board as kept for final hearing today. Shri Yadav is insisting for hearing on merit. Same is the case with Shri Saste. Therefore, it is being decided finally by hearing the lawyers who are present for the parties and insisting for the hearing and decision of this petition. This petition is also being decided in the interest of justice.

2. The petitioners assail the correctness, propriety and legality of therefore passed in Criminal Case No. 341/8/1999 pending before 27th Court of Mulund, Mumbai, by which process has been issued against the petitioners in context with an offence punishable in view of provisions of Section 500 of Indian Penal Code. It has been averred by the petitioners that the learned Magistrate committed an error in issuing process against them by passing the said order. They are praying for quashing the said proceeding pending in the said Court.

3. The main contention of the petitioners seems to be as indicated by the averments made in the petition that whatever has been done by them has been done in pursuance of the powers vested in them as Executive Body of the Cooperative Society managing the affairs of the said cooperative society and the security of the flat dwellers in the said society. They contended that they have committed no offence of defamation by issuing the said circulars and calling the extra ordinary meeting for expelling the respondent No. 2 (original complainant) from the said society.

4. Shri Saste, A.P.P. submitted that the learned Magistrate has rightly taken cognizance of the complaint presented by the respondent No. 2 in that Court alleging that the petitioners have committed the offence which has been indicated by the provisions of Section 499 of I.P.C. and has been made punishable in view of provisions of Section 500 of I.P.C. Shri Saste submitted that a prima facie case has been made out in the said complaint for the learned Magistrate to take cognizance of the said complaint and for issuing the process against the petitioners.

5. Shri Yadav, Counsel appearing for respondent No. 2 submitted that by issuing the circulars and pasting them on the office of the Society the petitioners published an imputation which happens to be intending to harass or knowing or having reason to believe that such imputation will harm the reputation of the respondent No. 2 (original complainant). Shri Yadav submitted that by publication of said imputation in the said circular indicating their intention to expel the respondent No. 2 (original complainant) from the said society, the petitioners harmed the reputation of respondent No. 2 in the estimation of others, lowered down his moral or intellectual character in his profession and thereby committed an offence punishable under Section 500 of I.P.C. He justified the said order as correct, proper and legal and prayed that the petition be dismissed.

6. Explanation 4 embodied in Section 499 of I.P.C. indicates that:

"No imputation is said to harm a persons 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 lothsome state or in a state generally considered as disgraceful. The said person is said to have committed the offence of defamation which is punishable under the provisions of section 500 of I.P.C."

Therefore, the definition which has been given in Section 499 is to be read as a whole while considering the allegations made by the complainant in the complaint, and the Magistrate has to consider whether the complainant has made out a prima facie case, for him to take cognizance of the complaint presented in his Court and to issue a process by calling the accused indicated in the said complaint to Court. In that case, the persons against whom the process has been issued will have to appear before the Court and will have to plead their case for bringing out their defence before that Court as indicated by exceptions 1 to 10 embodied in that Section. Without doing that one would not be having a prima facie right to make a prayer for quashing such a prosecution pending in Court. But he can by pointing out the infirmity in the allegations made in the complaint pray for quashing of the order of issuing the process and resultant prosecution.

7. If such an accused pleads that he made or published such imputation in exercise of his legal right, he has to make out such a case by appearing before the Court or by placing reliance on the averments made in the complaint, itself. In that case, the Court would be considering whether the averments made or the allegations made in the complaint are sufficient enough to make out a case of exercise of such right or making or publishing such imputation in good faith. It should show by itself that the person making such imputation, publishing such imputation did it in exercise of a legal right but in that case also the reasonableness cannot be lost sight of.

8. In the present case, prima facie, it shows that the petitioners assumed the power in them of expelling the respondent No. 2 from the said society and they attempted to expel him from the said society by passing a resolution to that effect in the extra ordinary meeting of the said society. The point of "due process of law" "due process established by law" would come in picture. The Magistrate would be entitled to examine the averments and allegations made in the complaint for the purpose of satisfying himself whether action taken by the petitioners was in good faith, was reasonable and was a due process of law. Unless such a case is made out, the Executive body of the society would be having no right to expel the member from the society on the ground that he makes complaint or complaints to police station against the member or members of the Executive Body of the society. Without there being a legal scrutiny of those complaints they would be having no right to say that the complaints made to police station were false, mischievous. They would be having no right to say that the persons making complaints to the police station against the member/members of the Executive body of the society happens to be a mischievous person and on that count itself liable to be expelled from the society. The persons making imputation in that context and persons publishing such imputation are required to keep in mind the legal provisions provided for taking such actions. They are supposed to follow the process duly established by law. They are not entitled to assume the power in them by themselves without there being conferment by statutory authority are legal process. Without there being a legal authority, they are not permitted to publish any imputation against any member of the society which would fall within definition provided by Section 499 of I.P.C.

9. Prima facie the petitioners should have seen that the controversy was heard by Jt. Registrar of the Cooperative Societies who had adjudicated it. Thereafter the appeal was heard by the competent authority and the matter was remanded back to the authority for rehearing. When that was so, prima facie, the members of the Executive body of the said society should have followed the procedure established by the law. But without doing that, as alleged in the complaint, they issued the circular of said extra ordinary meeting in which the subject was indicated that the respondent No. 2 (the original complainant) was to be expelled from the society as he was making complaint against the members of the Executive body of the said society in the concerned police station. In that context, prima facie, they were required to keep in mind that what the original complainant was requesting or insisting was to open another gate which was sanctioned by the competent authority in the construction plan in view of which the structure in the said society were constructed and were allotted to the members of the society. They should have kept in mind that they were required to follow the procedure established by law for closing that extra gate for which the respondent No. 2 was having controversy with them. They should have obtained the permission to do so from competent authority. In any case, prima facie, they were not legally authorised to publish said circular.

10. It is presumed that the learned Magistrate had applied his mind in context with allegations made in said complaint. This Court does not find any error in it. Therefore, this Court does not find any need of interfering in it.

11. Thus, petition stands dismissed. The petitioners should appear before the said Court on 29th of July 2003 during working hours and should inform the Court by moving an application that they are present before the said Court in view of the order of this Court. If they do not remain present in the Court, the learned Magistrate would be entitled to issue summons to them in accordance with the procedure laid down by the concerned law. Hence, dismissed.

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