Mahendra S/O Shankarrao Godbole vs Prabhakar S/O Hariram Gulhane And ...
2004 Latest Caselaw 759 Bom

JUDGMENT

A.P. Lavande, J.

1. This is an application under Section 482 of Code of Criminal Procedure, challenging the order dated 13-9-2000 passed by the 5th Additional Sessions Judge, Nagpur in Criminal Revision Application No. 171/2000, dismissing the revision filed by the applicant against the order dated 16-12-1999 passed by the learned Chief Judicial Magistrate, Nagpur, in Criminal Complaint Case No. 242/99 to the extent of issuance of process against the present applicant. The applicant is accused No. 4 in Criminal Complaint Case No. 242/99 pending before the Chief Judicial Magistrate filed by the respondent No. 1 herein.

2. The applicant is an accused No. 4 in Criminal Case No. 242/99 filed by respondent No. 1. Respondent No. 1 filed Criminal Complaint Case No. 242/99 dated 26-7-1999 against present applicant and three others for the commission of offences punishable under Sections 499, 500, 501 read with 34 of Indian Penal Code. After verification of complaint, learned Chief Judicial Magistrate by order dated 16-12-1999 issued process against all four accused under Sections 500, 501 read with 34 of Indian Penal Code returnable on 18-1-2000. This order was challenged by the applicant by filing Criminal Revision Application No. 171/2000, which was made over to 5th Additional Sessions Judge, Nagpur. After hearing the parties, the learned 5th Additional Sessions Judge, Nagpur, by his judgment and order dated 13-9-2000 dismissed the revision. The present application challenges both the orders passed by Chief Judicial Magistrate and the learned 5th Additional Sessions Judge, Nagpur.

3. At the outset, Mr. Morande, the learned counsel for the applicant states that both the orders passed by the Additional Sessions Judge and Chief Judicial Magistrate are patently illegal and without jurisdiction inasmuch as, no offence under Section 500 or 501 read with 34 of Indian Penal Code is made out against the applicant. He further submits that there are absolutely no averments, which justified issuance of process for the offences alleged against applicant. According to Mr. Morande, both the lower Courts have not applied their mind and have issued process against the present applicant without considering the fact that there is absolutely no whisper in the complaint as to in what manner the applicant has defamed respondent No. 1. Mr. Gulhane respondent No. 1, who appeared in person submits that the allegations against him are found in paragraphs 6, 7, 8 and 9 of the complaint. According, to Mr. Gulhane, this complaint has been filed on the basis of statements made in Criminal Complaint Case No. 368/98, in which certain statements have been made against the applicant. A copy of Criminal Complaint Case No. 368/98 has been placed on record.

4. Since according to Mr. Gulhane the allegations against him are to be found in paragraphs 6, 7, 8 and 9 of the complaint, it is appropriate to quote the said paragraphs, which read as under :-

Para 6 :

"That, it has also come to the knowledge of the complainant that the Cri. Comp. C. No. 368/98 has been instituted against this complainant on the insistence and instigation or the accused No. 4-Mahendra Godbole in an Emergent Executive Committee Meeting held on 21st June ,1998 at his place i.e. Apartment No. 1-Aat 16.30 Hrs. This goes to indicate that the contentions raised in the said Cri. Comp. C. No. 368/98 have been made with the full knowledge knowingly and intentionally, with his active connivance as he has been cited one of the witnesses amongst others, viz. (i) Kamal Kapai. Accused No. 1, (ii) Balvindersingh-Accused No. 2, (iii) Mahendra Godbole-Accused No. 4, and (iv) G. K. Ganesan-Accused No. 2. Para 5 in the said Cri. C. No. 368/98 reads as under :

"5. The complainant submits that the wife of the accused No. 1 is the owner of Flat No. 1-B on the first floor. There is no document to show that the accused No. 1 has purchased flat No. 1-C on the first floor. No sale-deed has been executed in the name of the accused No. 1 or in the name of any of the family members of the accused No. 1. But still he is in possession of the flat No. 1-C. The builder was contacted in this respect by the complainant to know that who is the real owner of flat No. 1-C, who in turn told the complainant that the accused No. 1 had forcibly taken possession of Flat No. 1-C. He is not the owner of the said flat and occupying the said flat as trespasser. . ."

Para 7 :

7. That after going through the contents in the said Cri. Comp. C. No. 368/98 it has been observed by the complainant that there is a reckless allegation and imputation against this complainant that he is a trespasser and his status is nothing but of a trespasser although his possession has been acknowledged in the said complaint itself . ("But still he is possession of the flat No. 1-C") Finding this allegation/imputation as false, baseless and defamatory, the complainant issued a legal notice to all the accused persons which has been duly acknowledged by the accused Nos. 1, 3 and 4. Accused No. 2 G. K.Ganesan did not claim the legal notice Dt. 14-1-1999 sent by R.P. A.D. despite intimation under the Postal Rules. Accused No. 4-Mahendra Godbole replied the said notice through his counsel Shri Vishwas Bapat, Adv. denying the legal possession and occupation of the Apartment No. 1-C of the complainant, thereby impliedly supporting the allegation and imputation as regards "trespasser" Para 2 of the Reply/Notice Dt 3-2-1999 on behalf of the accused No. 4 reads under :-

"As to para 2 : It is denied that my client is aware that you noticee are in legal possession of the apartment No. 1-C in the scheme known as Gurushankar Apartment. It is not admitted for want of knowledge that you noticee are having rights in the said apartment as recognised under the law".

Para 8 "The Exh. No. 29 in Cri. Comp. C. No. 232/98 Nirmal vs. Kamal Kapai and others and Cri. Complaint C. No. 368/98 filed by the accused No. 3-Balvindersingh (signed by the accused Nos. 1, 2 and 3 and signed by the accused No. 3 Balvindersingh with listing accused Nos. 1, 2 and 4 respectively) levelling and imputation in respect of this complainant as "TRESPASSER" amounts to publication of a defamatory matter as recognised under the law of the land. Certified copies of the documents filed in the court are filed herewith in support of the point raised."

Para 9 :

"That, it is an admitted position on record that this complainant is in peaceful possession and occupation of Apartment No. 1-C since past TEN YEARS. Despite this actual and factual position within the knowledge of the accused persons, they have deliberately and intentionally made an attempt in publishing the defamatory matter concerning the complainant that he is a trespasser intending to harm or knowing or having reason to believe that such imputation will harm the reputation of the complainant has resulted into his defamation viz. Exh. No. 29 in Cri. Comp. C. No. 232/98 AND Cri. Comp. C. No. 368/98 pending before this Hon'ble Court."

5. Per contra, Mr. Morande submits that reading of entire complaint and more particularly, paragraphs 6 to 9, it is evident that there is absolutely no whisper as to in what manner in which the respondent No. 1 has been defamed. Learned Counsel further submitted that having regard to the facts and circumstances of the case, Section 34 is absolutely not applicable and process ought not to have issued against applicant with the aid of Section 34 of Indian Penal Code. At this stage, it would be appropriate to quote Section 499 which lays down as to what amount to defamation. Section 499 reads as under :

499. Defamation. - "Whoever, by words either spoken or intended to be read, or by signs or by visible representation, 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 excepted, 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."

6. Insofar as Section 501 is concerned, the same makes printing or engraving any matter, by any person knowing or having reason to believe that such matter is defamatory of person, punishable.

7. Mr. Gulhane in support of his submission that prima facie, offence is made out with the aid of Section 34, has relied upon the following judgments:-

(1) , M.C. Verghese vs. T.J. Ponnam (2) , Tangavelu Chettiar vs. Ponnammal (3) (4) 2003 (4) Crimes 159 (SC), M. Narayandas vs. State of Kerala and Ors. and (5) (2000) (7) Scale 192.

8. Mr. Gulhane has also relied upon the following reported judgments: - 1998 (2) Crimes 502, Laeeque Ahmad @ Jumman vs. Civil Judge (CD.) Magistrate, Hamirpur; , Jai Bhagwan and Ors. vs. State of Haryana; 2003 (4) Crimes 159 (SC), M. Narayandas vs. State of Kamataka and Ors.; , U. P. Sunni Central Wakf Board vs. Mohammed Alim Cheshti (dead) by his legal representatives and others; 1992 Cri.L.J.839 A. K. Jain and Anr. vs. State of Sikkim and Anr. and 2004 AIR SCW 2883 Janak Singh and Anr. vs. State of Uttar Pradesh.

9. Relying upon all these judgments, respondent No. 1 submitted that in the present case no case is made out by respondent No. 1 so as to warrant exercise of jurisdiction under Section 482 of Criminal Procedure Code, which has to be sparingly exercised. It is further submitted that Section 34, Indian Penal Code is clearly attracted in the present case and in view of Section 34, Indian Penal Code, process issued against applicant cannot be said to be illegal. He further submits that to attract Section 34, Indian Penal Code, the presence of applicant is not required and the applicability of Section 34 depends upon the facts and circumstances of each case. Mr. Gulhane further submits that although Criminal Complaint Case No. 368/88 was filed by Guru Shankar Apartments Association, the same was filed in connivance with the present applicant and the decision to file complaint against the applicant was taken in the meeting, which was attended by the applicant, lastly, Mr. Gulhane submitted that no case is made out to set aside the impugned orders.

10. I have considered the submissions made by the parties. Since it is the case of respondent No. 1 that he has been defamed by the applicant, it is necessary to find out from the averments in the complaint, whether prima facie, offence of defamation against respondent No. 1 is made out. I have gone through the complaint minutely and particularly, paragraphs 6, 7, 8 and 9 of the complaint and also Criminal Case No. 368/98. A bare reading of two complaints, in my opinion, do not make out even prima facie case for the offence of defamation in terms of Section 499 punishable under Section 500 or an offence punishable under Section 501 read with 34 of Indian Penal Code. Mr. Gulhane was called upon to cite judgment, in which, prosecution of the accused with the aid of Section 34 in respect of offence of defamation has been considered. However, Mr. Gulhane could not cite any judgment, in which process has been issued against accused with the aid of Section 34 in respect of offence under Section 500 or 501 of Indian Penal Code. That apart, even after reading of the complaint filed by respondent No. 1 as a whole, in my opinion, no case absolutely has been made out against the present applicant for issuance of process under Sections 500 and 501 read with 34 of Indian Penal Code. To that extent, the learned Chief Judicial Magistrate does not appear to have applied his mind while issuing process against applicant. Similarly, the learned 5th Additional Sessions Judge, in his judgment and order dated 13-9-2000 after considering the principles to be followed by Magistrate while issuing process issued by the Chief Judicial Magistrate has completely lost sight of the fact that at least against present applicant, there is no material available either in the complaint, or in the verification to attract even prima facie commission of offence under Sections 500 and 501 read with 34 of Indian Penal Code.

11. I have considered the ratio of various judgments cited by respondent No. 1. Applying the ratio of the judgment cited by respondent No. 1,1 am of the opinion that no offence alleged against the applicant is made out and therefore, issuance of process by the learned Chief Judicial Magistrate in respect of offence alleged, which is confirmed by the Revisional Court, in my opinion is patently illegal and deserves to be quashed and set aside. It is well settled that the jurisdiction under Section 482 of Criminal Procedure Code has to be exercised to secure the ends of justice and/or to prevent the abuse of process of any Court but in exceptional cases. In my opinion, this is a fit case in which this Court should exercise jurisdiction under Section 482 of Criminal Procedure Code. Since in my opinion, issuance of process against the applicant for the offences alleged is nothing but abuse of process of the Court. In my opinion, even prima facie, no offence is made out against the applicant. Therefore, impugned orders are liable to be quashed and set aside.

12. In the result, this application is allowed. Order dated 16-12-1999 passed by Chief Judicial Magistrate, Nagpur in Criminal Complaint Case No. 242/99 and Judgment and order dated 13-9-2000 passed in Criminal Revision Application No. 171/2000 by 5th Additional Sessions Judge, Nagpur, are hereby quashed and set aside and proceedings against the applicant are dropped. Having regard to the facts and circumstances of the case, respondent No. 1 is directed to pay costs of Rs. 1000/- to the applicant. Application is accordingly disposed of.