Bombay High Court
Shri Satyabhash Yeshwant ... vs Ravindra Madhukar Sawant And Ors on 2 December, 2014
Bench: A.M. Thipsay
Tilak 1/8 (1)REVN-91-09
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.91 of 2009
Shri Satyabhash Yeshwant
Salgaonkar .. Applicant
Versus
Ravindra Madhukar Sawant
and others .. Respondents
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Ms.Yogini D. Ghawade, Advocate for the applicant.
Mr.N.G. Bane, Advocate for respondent nos.1 to 12.
Mr.Deepak Thakre, APP for the Respondent State.
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CORAM : ABHAY M. THIPSAY, J.
DATED : 2nd DECEMBER 2014.
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ORAL ORDER :-
1 The petitioner is the original complainant. He had
filed a complaint alleging commission of offences punishable
under section 500 of the IPC and 501 of the IPC read with section
34 of the IPC against the respondent nos.1 to 12 herein. The
learned Magistrate, after examining the petitioner on oath, as
contemplated under section 200 of the Code of Criminal
Procedure, issued process against the respondent nos.1 to 12,
requiring them to appear and answer to the charge of an
punishable under section 500 IPC and 501 IPC read with section
34 of the IPC.
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2 For the sake of convenience and clarity, the petitioner
shall hereinafter be referred to as 'the complainant' and
respondent nos.1 to 12 as 'the accused'.
3 Being aggrieved by the order issuing process, the
accused approached the Court of Sessions at Mumbai by filing an
application for revision. The learned Adhoc Additional Sessions
Judge, who heard the Revision Application, allowed it and set
aside the order passed by the Magistrate, issuing process against
the accused.
4 Being aggrieved thereby, the complainant has filed the
present revision application, challenging the order passed by the
Court of Sessions in revision. The complainant prays that the said
order be set aside.
5 I have heard Ms.Yogini Ghawade, learned counsel for
the complainant and Mr.N.G. Bane, learned counsel for the
accused. With the assistance of the learned counsel for the parties,
I have gone through the Revision Application and the annexures
thereto, which include the complaint, the order passed by the
learned Magistrate, as also the order passed by the Court of
Sessions in revision.
6 The learned counsel for the complainant submitted
that a clear case made out from the averments made in the
complaint, for proceeding against the accused persons with respect
to the accusation of the aforesaid offences. According to her, there
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was no case for interfering with the order passed by the learned
Magistrate, in exercise of the revisional jurisdiction, as has been
wrongly done by the Court of Sessions.
7 I have carefully gone through the complaint and the
facts as revealed therefrom. It appears that there is some dispute
between the complainant on one hand, and the members of the
present managing committee of Vrushali Shilp Co-operative
Housing Society (hereinafter referred to as 'the said society'). It
appears that the complainant was in the past, an office bearer, and
a member of the managing committee of the said society. The case
of the complainant is that a five pages circular, which contained
defamatory matter concerning the complainant, was displayed on
the notice board of 11 wings of the said society. The circular was
titled as 'Jahir Nished, Nished Nished' (tkfgj fu"ks/k] fu"ks/k] fu"ks/k). That,
this circular was signed by the accused nos.3 to 12 and several
others, and that the same had been displayed with the full
consent, support and connivance of the accused nos.1, 2, and 3,
who are the members of the managing committee of the said
society. It is categorically stated in the complaint that the idea
behind writing and displaying the said circular was to lower the
moral character of complainant in the estimation of others.
8 I have carefully gone through the circular, a copy of
which is annexed to the Revision Application. Indeed, it contains
imputations concerning the complainant which have the effect of
lowering the moral character of complainant in the estimation of
others. Among other things, it is suggested that the complainant is
a liar, that he had not held the elections of the said co-operative
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housing society, that he had not got the accounts audited etc. It is
also suggested that some amount belonging to the society, has
been misappropriated (by the complainant).
9 Thus, that the circular contains defamatory matter,
cannot be doubted or disputed. That, that it has been signed by
the accused nos.4 to 12, and some other persons, has also not
been doubted or disputed.
10 In the complaint, there is a categorical assertion that
the circular contains false and baseless allegations against the
complainant, and that the same was maliciously displayed on the
notice board of the society. Apart from the fact that the circular
contains imputations which are defamatory, the fact that it was
published by displaying on 11 notice boards on the 11 wings of the
, an intention to lower the
society, is also significant. Prima facie
complainant in the estimation of others, is evident from the matter
stated in the circular as well as the manner of its publication. The
learned Magistrate was, therefore, quite right in issuing process
against the accused persons, as done by him.
11 The order passed by the Adhoc Additional Sessions
Judge, allowing the Revision Application, exhibits an unawareness
on the part of the learned Judge as to the essence of, or
ingredients of the offence punishable under section 500 of the IPC.
The learned Judge in her order has observed :
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"To make out the case under section 500 of IPC, the
complainant has to prove that accused made
defamatory comments with an ulterior motive and
without the least justification motivated by self
interest".
(emphasis supplied)
12 This is not the correct legal position, Apart from the
fact that how the complainant was supposed to 'prove' the same if
the trial was not allowed to be held, is not clear, the learned
Judge overlooked that she was dealing only with the question of
correctness or otherwise of the order issuing process, and was not
required to treat the order issuing process as an order holding the
accused persons guilty of the offences in question. The learned
Judge in her order also observed :-
"It is not established prima-facie that it was
displayed on the board with an intention to defame
the complainant. If we see the notice, it seems that
it is a notice given to the complainant and thereby
calling upon him for misconduct".
13 It is impossible to agree with such an observation. If
the defamatory matter was written with the intention of
communicating the same to the complainant, there was no
necessity of displaying it on the notice board of the society.
14 The learned Judge also observed as follows :-
Tilak 6/8 (1)REVN-91-09
"It is significant to note that it is nowhere
mentioned in the complaint as to why the accused
had an intention to use such statement alleged to be
defamatory".
15 These observations are not correct in law. The legal
position with respect to the offence of defamation as understood
by the learned Judge, is not correct.
16 The learned Judge totally overlooked that the manner
of publication of the said circular was also significant for judging,
prima facie, the intention of those responsible for the publication.
17 However, the crucial aspect of the matter was not
that. The crucial aspect was that whether the order passed by the
Magistrate was suffering from any patent error or illegality so as to
warrant interference in revisional jurisdiction. It is well settled
that revisional jurisdiction is meant to be exercised for correcting a
manifest error or law, resulting in miscarriage of justice. In the
case of Smt.Nagawwa Vs. Veeranna Shivallngappa Konjalgi,
AIR 1976 SC 1947, the Supreme Court of India by way of
illustration, categorized the cases where the order issuing process
may be quashed. These are :
(1) Where the allegations made in the complaint or
the statements of the witnesses recorded in support of
the same taken at their face value make out absolutely
no case against the accused or the complaint does not
disclose the essential ingredients of an offence which is
alleged against the accused;
Tilak 7/8 (1)REVN-91-09
(2) Where the allegations made in the complaint
are patently absurd and inherently improbable so that
no prudent person can ever reach a conclusion that
there is sufficient ground for proceeding against the
accused.
(3) Where the discretion exercised by the Magistrate
in issuing process is capricious and arbitrary having
been based either on no evidence or on materials which
are wholly irrelevant or inadmissible; and
(4) Where the complaint suffers from fundamental
legal defects, such as, want of sanction, or absence
of a complaint by legally competent authority and the
like.
Their Lordships further observed that the cases mentioned by them
were purely illustrative, but provide sufficient guidelines to
indicate contingencies in which the criminal proceedings could be
quashed. It would also be appropriate to reproduce some other
observations made in the same judgment which indicate that the
Magistrate has a certain amount of discretion in the matter of
issuance of process. It was observed thus :-
"The Magistrate has been given an undoubted
discretion in the matter and the discretion has to be
judicially exercised by him. Once the Magistrate
has exercised his discretion, it is not for the high
court, or even this Court, to substitute its own
discretion for thatof the Magistrate or to examine
the case on merits, with a view to find out whether
or not the allegations in the complaint, if proved,
would ultimately end in conviction of the accused".
Tilak 8/8 (1)REVN-91-09
18 Clearly, the complaint discloses the ingredients of the
alleged offences. It cannot be said that taking the averments made
in the complaint at face value, no case for proceeding against the
accused persons, was made out. Though the accused nos.1, 2 and
3 have not signed the defamatory publication, these accused are
the managing committee members of the said society, and the
manner in which the defamatory matter was published i.e. by
displaying it on the notice boards at 11 wings of the society, as also
from the nature of the defamatory matter, grave and strong
suspicion about their involvement in the matter, also exists.
There was nothing illegal or improper in the order
passed by the Magistrate. Since the order passed by the
Magistrate did not suffer from any illegality, error or perversity,
there was hardly any scope for interfering therewith, in exercise
of the revisional jurisdiction.
20 The order passed by the Court of Sessions in revision
being patently illegal and contrary to law, needs to be interfered
with, in the interest of justice.
21 Revision Application is allowed.
22 The impugned order is set aside.
23 The learned Magistrate shall proceed further with the
case in accordance with law.
24 Revision Application is disposed of accordingly.
(ABHAY M.THIPSAY, J)
