Bombay High Court
Manoharrao Gangakishan Arlikar ... vs The State Of Maharashtra And Anr on 17 June, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 438 OF 2006
1 Manoharrao s/o Gangakishan Arlikar,
Aged : 55 years, Occupation : Advocate,
R/o Advait, H.No.2502, Gandhinagar,
Biloli, District Nanded.
2 Manoj s/o Manoharrao Arlikar,
Age : 28 years, Occupation : Advocate,
R/o Advait, H.No.2502, Gandhinagar,
Biloli, District Nanded.
ig ...PETITIONERS
-VERSUS-
1 The State of Maharashtra.
2 Chandraprakash s/o Bhagwanrao Kulkarni,
Aged : 50 years, Occupation : Agri,
R/o Biloli, District Nanded.
...RESPONDENTS
...
Advocate for Petitioners : Shri A G Godhamgaonkar.
APP for Respondent 1 : Shri S.G.Karlekar.
Respondent No.2 absent.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 17th June, 2016
Oral Judgment :
1 The Petitioners are aggrieved by the order dated 20.06.2006
delivered by the learned Judicial Magistrate First Class, Biloli in SCC
No.588/2005 by which process was issued against the Petitioners under
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Section 500 of the Indian Penal Code.
2 While issuing notice on 19.07.2006, this Court had granted
interim relief in terms of prayer clause (C) to the Petitioners, which reads
as under:-
"(C) During the pendency and final disposal of this
petition, the order dated 20.06.2006 of the learned
Judicial Magistrate First Class, Biloli in SCC No.588
of 2005 on his file, to the extent of the Petitioners, be
stayed."
3 This Court after hearing the Petitioners and the Respondents
had passed an order on 28.11.2006 and interim relief in terms of prayer
clause (C) was confirmed. The observations of this Court in it's order
dated 28.11.2006 read as under :-
"1. By way of present petition, the petitioners challenge
the order passed by the Judicial Magistrate (First
Class), Biloli, in S.C.C. No. 588 of 2005, dated 20 th
June 2006, thereby issuing process. The allegations
against the present applicants, who are Lawyers of
original accused nos. 3 to 6, are that they have used
some defamatory words against the present
respondent no.2 in the written statement.
2. Heard the learned Counsel for the Petitioners, the
learned Additional Public Prosecutor appearing for
respondent no.1, and the respondent no.2 appearing
as party in person.
3. At least prima facie, I do not find that proceedings
under Section 500 of the Indian Penal Code could be
initiated against Counsel who have drafted pleadings
as per the instructions of their client and which is
duly verified by the client.
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4. In that view of the matter, issue Rule, returnable
early.
5. Interim relief in terms of prayer clause "C"."
4 I have considered the submissions of Shri Godhamgaonkar,
learned Advocate for the Petitioners and the learned APP.
5 This matter was shown on the final hearing board on
10.06.2016. Since Respondent No.2, party-in-person, was not present
before this Court, the matter was adjourned by passing the following
order:-
"1. Mr.Godhamgaonkar, learned Advocate for the
Petitioners submits that interim relief was granted to
the petitioners in terms of prayer clause "C" on
19.07.2006. The petitioners are practicing Advocates.
This Court had arrived at a prima facie conclusion
that the proceedings do not attract Section 500 of the
IPC against the petitioners who have drafted the
written statement as per instructions of their clients
and which have been duly verified by the clients.
2. Respondent No.2/ party in person is not present.
Matter is shown on the final hearing board at
Sr.No.209.
3. In the light of the above, in order to afford an
opportunity of hearing to Respondent No.2, stand
over to 17.06.2016. It is made clear that if
respondent No.2 is not present on the next date of
hearing, this matter would be decided after hearing
the petitioners and the learned APP."
6 This matter is shown on the board at Sr.No.916 today.
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Respondent No.2 is not present before the Court. In the above backdrop, I
have considered the submissions of the learned Advocates for the
Petitioners and the State.
7 The short issue raised before this Court is as to whether, the
Petitioners can be said to have committed an offence under Section 500 of
the Indian Penal Code as is alleged by the party in person (Respondent
No.2).
8 Section 499 which defines defamation reads as under:-
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.
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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 loath some state, or in a state
generally considered as disgraceful. "
9 Section 500 provides for punishment if a person is held guilty
of having committed an offence of defamation under Section 499. The
punishment would be simple imprisonment for a term which may extend
to two years or with fine or both.
10 In my view, the act of defamation would be proved if the
accused 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, could be
punished for the said act.
11 The document at issue, which is said to be an act of
defamation committed by the Petitioners, is the Written Statement filed by
four persons, namely, Shankar Gangadhar Mukhedi (Shettiwar),
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Gangamani Shankar Mukhedi (Shettiwar), Laxman Shankar Mukhedi
(Shettiwar) and Suresh Shankar Mukhedi (Shettiwar) in Regular Civil Suit
No.38/2005. It is not in dispute that the Written Statement as well as it's
verification was signed by these four Defendants. In the verification it has
been specifically stated that paragraphs 1 to 20 are true and correct as per
their own knowledge and information of the Defendants which they admit
to be true and correct.
The Written Statement was filed in the civil proceedings
before the Court. The contents of the Written Statement are germane to
the case and it's contents are restricted to the parties to the case and the
Court. I do not find that the contents of the Written Statement could be
said to be an act of defamation under Section 499 of the Indian Penal
Code.
13 Similarly as has been prima facie held by this Court in this
matter in paragraph 3 of the order dated 28.11.2006 that the proceedings
under Section 500 could not be initiated against the counsel who has
drafted the pleadings as per the instructions of the client and duly verified
by the client.
14 Besides the above, I have gone through the contents of the
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Written Statement and I find that the contentions at four places appear to
have antagonized Respondent No.2, which are as follows:-
In paragraph 9 of the Written Statement: "The illegal
purchaser Chandra Prakash who is court bird and Pairwaikar
and Nagamani wife of defendant No.1 are the persons joining
hands with Plaintiff have caused to file false suit against the
defendants".
In paragraph 9 of the Written Statement : "Chandraprakash is
a person who wonders (read wanders) in court premises daily
in court hours."
In paragraph 12 of the Written Statement : "the alleged
purchaser Chandra Prakash is a gunning persons (read cunning
person)."
In paragraph 14 of the Written Statement : "On the contrary,
the Plaintiff has gone tender (read under the) thumb of
Nagmani and Chandraprakash and is dancing on their tune".
15 In my view, even if these statements in the Written Statement
are considered, they do not fulfill the requirement of Section 499 of the
Indian Penal Code.
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16 In the light of the above, this Criminal Writ Petition is allowed
in terms of prayer clause (B), which reads thus:-
"(B) The order dated 20.06.2006 of the learned Judicial
Magistrate First Class, Biloli in SCC No.588/2005 on
his file, ordering to issue process for offence under
Section 500 of the Indian Penal Code be quashed and
set aside to the extent of the petitioners."
17 Rule is made absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
