Bombay High Court
Mangal Ananta Lolage vs Prabhakar Vithal Lolage & Ors on 28 June, 2016
Bench: R.V. Ghuge
CR.WP/261/2005
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 261 OF 2005
Mangal Anant Lolage,
Age 22 years, Occ. Household
R/o Gokul Nagar, Near Gathad Plot,
at post Pandharpur, Tq. Pandharpur
District Solapur. ..Petitioner
Versus
1. Prabhakar Vithal Loage,
Age 59 years, Occ. Retired,
R/o House No.44/4,
New Mukund Nagar,
Opp Priti Kirana Stores,
Ahmednagar.
2. Madhukar Ramchandra Bhurade,
Age major, Occ. Labour,
R/o Gokul Nagar, Near Gathad Plot,
at post Pandharpur, Tq. Pandharpur
District Solapur.
3. Sau. Seema Madhukar Bhurade
Age major, Occ. Household
R/o Gokul Nagar, Near Gathad Plot,
at post Pandharpur, Tq. Pandharpur
District Solapur.
4. The State of Maharashtra. ..Respondents
...
Advocate for Petitioner : Shri Yogesh Kale h/f Shri R.R.Karpe
APP for Respondent 4 : Shri Karlekar S.G.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: June 28, 2016
...
ORAL JUDGMENT :-
1. The petitioner has challenged the order of issuance of process
CR.WP/261/2005
dated 11.1.2005 passed by the learned Magistrate, who has prima
facie, concluded that there was material and circumstances for
issuing process under Sections 500 and 501 of the Indian Penal Code
("IPC").
2. This Court, by its order dated 27.6.2005, granted interim relief
to the petitioner in terms of prayer clause (c).
3.
Prayer clause (C) reads as under:-
"(C) Pending hearing and final disposal of this Criminal Writ
Petition kindly grant stay to the further proceedings of
S.T.C.No.480 of 2004 pending before the learned Judicial
Magistrate, First Class, Ahmednagar, filed by the Respondent
No.1."
4. By order dated 27.9.2005, this petition was admitted and
interim relief was continued.
5. I have adjourned this matter on 7.6.2016, 23.6.2016 and
24.6.2016 to enable respondents 2 and 3 to participate in the hearing
of this petition. However, even today, none appears for all the
respondents.
6. I have heard the submissions of the learned Advocate for the
CR.WP/261/2005
petitioner. I have gone through the petition paper book and I have
considered the material on record.
7. The petitioner had filed a Criminal Misc. Application No.72 of
2004 under Section 125 of the Criminal Procedure Code ("CrPC")
claiming maintenance against her husband. In the said application,
the petitioner had made a contention in paragraph No.4 that the
father of her husband - Ananta Prabhakar, respondent No.1 herein is a
Matka agent.
8. In the Written Statement filed by Ananta Prabhakar dated
19.8.2004, he denied in paragraph No.4 that his father was a Matka
Agent. There is no dispute that the said application was allowed and
the petitioner was held entitled for maintenance allowance.
9. Respondent No.1 herein filed Criminal Case No.480 of 2004
before the learned Chief Judicial Magistrate contending that the
petitioner along with two others has committed an offence under
Sections 500, 501 and 37 of the IPC. The ground for lodging the said
proceedings was that the petitioner, by making a statement in
paragraph No.4 of her application for maintenance, had discredited
respondent No.1 and had therefore, defamed him. It is on the said
complaint, which was supported with verification dated 31.12.2004
that the impugned order of issuance of process against the petitioner
CR.WP/261/2005
alone has been passed.
10. Learned Advocate for the petitioner strenuously submits that
the Complaint put-forth by respondent No.1 does not make out a
case for issuance of process under Sections 500 and 501 of the IPC.
The impugned order is cryptic in nature and does not reflect
application of mind by the learned Magistrate. Reliance is placed on
the judgment of this Court in the matter of Mahendra Shankarrao
Godbole Vs. Prabhakar Hariram Gulhane and another [2005 (1)
Bom.C.R.(Cri.) 421].
11. It is trite law that an order of issuance of process has to be a
well reasoned order. The said order ought to be supported with
conclusions and it should reflect proper application of mind to the
material on record. In the instant case, the impugned order is as
under:-
"Perused the complaint and read the verification. Heard
the learned counsel for the complainant. On careful perusal of
the complaint and verification there is sufficient ground to
issue processes against accused no.1. The complaint and
verification prima facie do not reflects any circumstances to
issue process against accused no.2 and 3. Hence issue process
against accused no.1 u/sec.500 and 501 of I.P.C. The
complaint against accused no.2 and 3 stands dismissed."
CR.WP/261/2005
12. I, therefore, do not find that the impugned order could be said
to be a reasoned order indicating that the learned Magistrate has
considered the material on record and has prima facie reached a
conclusion that an offence is made out.
13. Notwithstanding the above, it clearly appears that the
statement made by the petitioner in paragraph No.4 of her
application for maintenance mentions that the father of her husband
is a Matka Agent. Issue, therefore, is as to whether the said
contention in a document which is placed on record before the Court
and is a part of court proceedings, could be said to be an offence
under Section 501 of the IPC.
14. Sections 500 and 501 of the IPC reads as under:-
"Section 500 - Punishment for defamation. Whoever
defames another shall be punished with simple imprisonment
for a term which may extend to two years, or with fine, or
with both.
Section 501 - Printing or engraving matter known to be
defamatory. Whoever prints or engraves any matter, knowing
or having good reason to believe that such matter is
defamatory of any person, shall be punished with simple
imprisonment for a term which may extend to two years, or
with fine, or with both."
CR.WP/261/2005
15. Considering the statement made in the application for
maintenance, I do not find that it could be said to be printing or
engraving of matter with the belief that such matter is defamatory in
nature and would lower the esteem of the father of the husband in
the eyes of the public. Defamation has been defined under Section
499 of the IPC to mean, "words either spoken or intended to be read
or signs or visible representation or publishing any material against
any person intending to harm his character or knowing or believing
that it would harm the respect and reputation of such a person."
16. I do not find that the statement made in an application before
a Court could be said to be an act of publishing such material which
would easily be noticed by the public at large and the public would
have an access to read the said material by which, the reputation or
the respect of a person would be lowered in their esteem.
17. This Court in the matter of Mahendra (supra) has concluded in
paragraph Nos.10 and 11 as under:-
"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
CR.WP/261/2005
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 the 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
CR.WP/261/2005
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."
18. In the light of the above, this petition succeeds. Same is
allowed in terms of prayer clause (B), which reads as under:-
"(B) To quash and set aside the order dated 11.1.2005 passed
by the learned Judicial Magistrate, First Class, Ahmednagar,
wherein the process has been issued against the present
petitioner in S.T.C. No.480 / 2004 filed by the Respondent No.1
under Section 500, 501 and 34 of the Indian Penal Code and
the petitioner be discharged from the said offence /
complaint."
19. Rule is made absolute in above terms.
CR.WP/261/2005
( RAVINDRA V. GHUGE, J. )
...
akl/d
