Bhagirath S/O Gajajaj Mundlik vs Vithal S/O Krushnaji Bhillare And ...
2016 Latest Caselaw 352 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             BENCH AT AURANGABAD




                                                     
                        CRIMINAL APPLICATION NO.4609 OF 2015


     Bhagirath s/o Gajanan Mundlik,
     Age: 54 years, Occu: Business,




                                                    
     R/o Belapur, Tq. Shrirampur,
     Dist. Ahmednagar                                ..APPLICANT

              VERSUS




                                          
     1.       Vithal s/o Krushnaji Bhillare,
              Age: Major, Occu: Agri.
                             
     2.       Baban s/o Krushnaji Bhillare,
              Age: Major, Occu: Agri.
                            
     3.       Ghanshyam s/o Krushnaji Bhillare,
              Age: Major, Occu: Agri.

     4.       Prabhakar s/o Krushnaji Bhillare,
      

              Age: Major, Occu: Agri.

     5.       Tatyaba s/o Krushnaji Bhillare,
   



              Age: Major, Occu: Agri.

     6.       Dinkar s/o Krushnaji Bhillare,
              Age: Major, Occu: Agri.





     7.       Rajaram s/o Krushnaji Bhillare,
              Age: Major, Occu: Agri.

     8.       Shakuntala Krushnaji Bhillare,
              Age: Major, Occu: Household,





              R/o Malegaon-Narsapur,
              Tq. Bhor, Dist. Pune                   ..RESPONDENTS


     Mr R. A. Tambe, Advocate for applicant;
     Mr V. B. Jagtap, Advocate holding for Mr V. D. Sapkal, Advocate for
     respondent Nos. 1, 2, 4 to 8




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                                            CORAM : N.W. SAMBRE, J.

DATE : 7th March, 2016

ORAL ORDER :

The present application is under section 482 of the Code of Criminal

Procedure read with Article 227 of the Constitution of India. In alternate, it

is prayed that the present application be treated as an appeal against

acquittal, in view of the provisions of section 378 (4) of the Code of

Criminal Procedure.

2. Facts, as are necessary for decision of present matter, are as

under :-

The present applicant Bhagirath claims to have filed Regular Civil

Suit No.46 of 2011 for permanent injunction against respondents, in

relation to certain agricultural land, which is pending on the file of Civil

Judge Junior Division, Shrirampur. In the suit, respondents herein filed

their written statement at Exh.28 and in paragraph 38 of the same, it is

claimed that since 2008 wife of the plaintiff-applicant herein, namely,

Suvarna, is a director of Janseva Rural Non-Agricultural Credit Co-

operative society, Belapur (for short "society"). It is further claimed in the

written statement that the said society had indulged into mismanagement.

3. Based on the above referred statement made in paragraph 38 of the

written statement, criminal complaint case bearing S.T.C. No.307 of 2011

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for prosecuting the respondents for offences punishable under sections

500, 501 read with section 34 of the Indian Penal Code came to be

initiated by Suryakant, the real brother of plaintiff Bhagirath, alleging that

he being a member of the said society, the defendants have committed an

offence by attributing allegations, which, prima facie are defamatory in

nature.

4. The complaint came to be registered on 21 st June, 2011 as

summons trial case.

5. The learned Magistrate, having noticed that there is sufficient

ground for proceeding against respondents-accused, issued process on

15th September, 2011.

6. On 11th February, 2015, complainant Suryakant expired, which has

prompted the present applicant to move an application Exh.66 claiming to

be a person defamed and sought his substitution in place the complainant.

The said application came to be objected by the respondents, stating that

the rule of succession is not applicable to the proceedings in question and

the applicant as a legal representative will not be entitled, as of right, to

succeed the complainant. It is also claimed that the allegations of

defamation cannot be linked to the applicant and as such, sought dismissal

of application Exh.66.

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7. Learned Judicial Magistrate First Class, Shrirampur, by an order

dated 22nd July, 2015, rejected the application at Exhibit 66 by refusing

the prayer of the applicant to substitute the deceased original complainant

and further ordered abatement of the complaint, on the ground that the

case relates to offences punishable under sections 493 and 496 of the

Indian Penal Code. According to the learned Magistrate, in view of law laid

down by this Court in the matter of Balasaheb Keshav Thackeray vs.

State of Mah. & anr., reported in 2003 (1) Mh.L.J. 775, the applicant

cannot claim to be "person aggrieved" and as such, has no locus to

continue the complaint. It is further observed by the learned Magistrate

that defamatory contents were in respect of the director of the society and

not against the individual. It is further observed that the legal heir of the

complainant has not come forward to pursue the complaint further. As

such, present appeal.

8. Mr Tambe, learned Counsel appearing on behalf of the applicant,

while trying to make out a case for allowing application Exh.66 for

substitution or leave to continue the complaint, would urge that the

applicant is also one of the share holders and as such, member of the

society against whom and against whose directors the defamatory

statement was made. He would submit that the provisions of section 256

of the Code of Criminal Procedure bestow a right in favour of the applicant

to continue with the complaint for prosecuting the respondents for offences

under the provisions of the Indian Penal Code, as mentioned therein. He

would then urge that the law on the issue as regards steps to be taken

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upon death of complainant is very much spelt out in the judgment of

Ashwin Nanubhai Vyas vs. The State of Mah. & anr., reported in AIR

1967 SC 983 (1). According to him, the Code of Criminal Procedure

provides for the remedies in case of death of an accused or an appellant,

but does not expressly provide for in case of death of a complainant. He

then submits that it also does not provide for abatement of inquiries and

trials though abatement of appeal is provided in case of death of the

accused, pursuant to the provisions of sections 411 (a) (2) and 417 of the

Code of Criminal Procedure. He would then submit that in absence of any

express provision in the Code of Criminal Procedure, the prosecution

needs to be continued at the behest of the present applicant because the

action does not come to an end with the death of the complainant. He has

also placed reliance upon the judgment of the Apex Court, in the matter of

John Thomas vs. K.k Jagadeesan, reported in 2001 AIR (SC) 2651, so

as to canvass that phraseology " by some person aggrieved " as referred

to in sub-section (1) of section 199 of the Code of Criminal Procedure

includes the present applicant being plaintiff to the original suit and one of

the members of the society. According to him, the applicant is entitled to

continue the prosecution. In addition, he has also placed reliance upon the

judgment of Allahabad High Court in the matter of Abdul Hakim & anr. vs.

State, reported in 1973 Cri.L.J. 492, so as to canvass that the words

"person aggrieved" used in section 199 of the Code of Criminal Procedure

cannot be illusory.

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9. Per contra, Mr Jagtap, learned Counsel holding for Mr V.D. Sapkal,

learned Counsel appearing on behalf of respondents no.1, 2, 4 to 8, would

urge that the learned Magistrate has rightly rejected the application

pursuant to the provisions of section 256 of the Code of Criminal

Procedure. He would then submit that if the law laid down by this Court in

the matter of Balasaheb Keshav Thackeray (supra) is taken into account,

the present applicant has no locus whatsoever to continue with the

complaint, particularly in the background of the basis on which the

summons trial case came to be initiated. According to him, just because

the applicant is a member of the society, that does not by itself give him a

right to prosecute the complaint further, after the death of original

complainant. Learned Counsel has placed reliance upon certain

observations of this Court in the said judgment, so as to point out that the

prosecution of the complaint at the behest of the applicant is not tenable as

he cannot be said to be coming within the ambit and meaning of the words

"some person aggrieved" as referred to in sub-section (1) of section 199 of

the Code of Criminal Procedure.

10. According to him, the present proceedings, as such, are liable to be

dismissed.

11. With the assistance of learned counsel on either side, I have

perused the entire record. The relevant provisions, which are required to

be reproduced here below, are sections 199 (1) and 256 of the Code of

Criminal Procedure. Section 199 (1) reads thus :-

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"199. Prosecution for defamation -

(1) No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860),

except upon a complaint made by some person aggrieved by the offence:

Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who,

according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with

the leave of the Court, make a complaint on his or her behalf."

Section 256 of the Code of Criminal Procedure reads thus :-

256. Non- appearance or death of complainant -

(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be

adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

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(2) The provisions of sub- section (1) shall, so far as may be,

apply also to cases where the non-appearance of the complainant is due to his death.

12. Plain reading of the alleged defamatory pleading depicts that, same

are alleged (defamatory) attributions against the society. The summons

trial case for prosecuting the respondents for an offence of defamation was

initiated on a basis of complaint of original complainant Suryakant being a

member of the said society, as according to him the members are integral

part of the society and as such, according to the complainant, members

were also defamed. It is also required to be noted that the learned

Magistrate has taken cognizance of the same and has issued process.

Suryakant admittedly has expired on 11 th February, 2015, which has

prompted the present applicant to file an application Exh.66, stating

therein that he could be a person covered within the meaning of "some

person aggrieved" as referred to in sub-section (1) of section 199 of the

Code of Criminal Procedure and sought his substitution to original

complainant. The learned Magistrate found the applicant to be not a

person who could be said to be a person competent under sub-section (1)

of section 199, so as to fall in the category of "some person aggrieved",

merely on the basis of being a member and not a director of the society.

13. In the above referred background, if the submissions as were made

are analyzed in right perspective, it is required to be noted that the

prosecution for defamation could be brought into action through a

complaint as is provided under sub-section (1) of section 199 of Chapter

XIV of the Code of Criminal Procedure. Sub-section (1) as reproduced

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herein above, speaks of initiation of such prosecution upon presentation of

a complaint by some person aggrieved by the offence.

14. The applicant claims to be the brother of the deceased complainant

Suryakant. The applicant is also a member of the said society since 10 th

January, 2002, as appears from the share certificates held by him. He

had not initiated the complaint for offences punishable under sections 499

and 500 of the Indian Penal Code as were invoked by Suryakant at the

relevant time. Although the applicant is real brother of Suryakant, yet he

is not claiming to have any right to continue the prosecution based on his

relation with Suryakant, but on the basis of his status as a member of the

society against which the alleged defamatory statements are claimed to

have been made. In my opinion, the applicant cannot have any right to

seek continuation of the proceedings initiated by deceased Suryakant,

particularly when he (applicant) cannot be covered within the meaning of

words "some person aggrieved", as provided in sub-section (1) of section

199 of the Code of Criminal Procedure. The reason for the above referred

conclusion is that the applicant himself claims to be merely a member and

not the director or any office bearer of the society. "Some person

aggrieved", at the most, could be a director or a person specifically

authorized by the society to initiate proceedings for defamation, which is

not a case of the present applicant. I am fortified in my view by law laid

down by this Court in the matter of Balasaheb Keshav Thackeray (supra).

In my opinion, it will be appropriate to refer to paragraph 12 of the said

judgment, which reads thus :-

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"12. As pointed above, the alleged defamatory statements do not relate to the Congress Party or

Congressmen as a class but they relate to two leaders of the said Party. According to respondent No. 2 the defamation of the said leaders is the defamation of all

the Congressmen and that he being one of the Congressmen, is entitled to file the complaint. Assuming for a moment that the alleged Statements attributed to

the petitioner are defamatory of the Congressmen as a class, still in view of the following decisions, it cannot be

said that the complainant is entitled to file the complaint. In M.P. Narayana Pillai v. M. P. Chacko, 1986 Cri.L.J.

2002 the facts were that; an article consisting some derogatory statements pertaining to the Syrian Christian community as a whole was published. The statements

were to the effect that the Syrain Christian girls working abroad are engaged in prostitution for livelihood. That

Syrain Christian ladies are being sent to nunneries on account of the financial incapacity of their parents to give them away in marriage, and that Mother Theresa who is

considered to be a living Saint of Christian community is doing missionary work for publicity alone. It was held that under Section 499 explanation II imputations against an association or collection of persons can be

defamatory only if such persons are definite and determinable body. Only if there is a definite association or collection of persons capable of being identified it could be said that the imputation against it affects all of them and any member of the class can say that the imputation is against him also personally so as to entitle him to file a complaint for defamation. It was held that the Syrain Christian Community is an unascertainable

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body of persons, and therefore, no member of that body

could say that he was individually defamed on account of the imputations. In the said case reference is made to

the decision in Krishnaswami v. C. H. Kanaran, 1971 Ker LT 145 wherein it was held that the Marxist Community Party as a collection of persons as such was an

unascertainable body. Similarly in Rai Kapoor v. Narendra Desai, (1974) 15 Guj LR 125 there were imputation made against the Bhangl community in

general. It was held that the imputation would not amount to defamation because they were not directed

against the particular group or members of that community which could be identified. It was observed;

"There was no imputation against the complainant as an individual. If he felt that as a member of the Bhangi community, he was defamed, that would not entitle him

to maintain a prosecution for defamation unless the

imputation was against him personally".

The alleged imputations in the present case, which are claimed to

be defamatory, are against the society and its directors and not members.

The applicant is neither a director nor a person holding any authority on

behalf of the society to continue the prosecution through the complaint filed

by Suryakant, who as well was not a director but merely a member.

15. Apart from above, it is required to be taken note of, in a criminal

proceedings prosecution could be continued only if, it is noticed that the

allegations made in the complaint, if taken to be true, establishes prima

facie case for commission of offences in question and in the interest of

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justice permission to continue prosecution is required. In the present case,

the fact remains that even if the contents of the criminal complaint are

taken to be true at its face value, still I have already held that the applicant

does not fall within the ambit and meaning of "some person aggrieved",

having regard to the fact that though at the inception of the complaint he

was a member but was not a complainant. He was never a director of the

society. He cannot be considered to be person who directly or indirectly

was defamed as imputations were never directed against him. Apart

therefrom, it is in the interest of justice also, the case at the behest of the

present applicant does not warrant continuation, particularly in the light of

what has been observed herein above.

16. The applicant though has relied upon the judgment in the matter of

Abdul Hakim (supra), it is required to be noted that in the said matter the

offence was under section 500 of the Indian Penal Code and it was the son

of the original complainant who had sought continuation of the proceedings

after the death of his father, who was original complainant and had claimed

to have been defamed. Such does not appear to be the case in hand. As

such, reliance upon the judgment in the matter of Abdul Hakim (supra) is

wholly misplaced.

17. Though learned counsel for applicant has relied on the case of

Ashwin (supra), which deals with the procedure to be adopted in case of

death of complainant, it is required to be noted that in the said case

offences were under sections 417, 493 and 496 of the Indian Penal Code.

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In the said matter, it was a case of the complainant Kusum that the

accused went through a sham marriage with her before a person who

posed himself as an officer from the office of the Registrar for Marriages

and abandoned her and married another woman. In the said matter, the

complainant died of heart attack and it is the mother of the complainant,

who had sought substitution as a fit and proper person to pursue the

complaint. The Magistrate in that case allowed the substitution which was

upheld by the High Court. The Apex Court, while dealing with the right of

such person has held that there is no express bar under the provisions of

the Code of Criminal Procedure to grant substitution, however, what is

required to be established is whether such person is covered within the

meaning of "some person aggrieved". Similar appears to be the approach

of the Apex Court in the matter of John Thomas (supra), wherein an

institution was claimed to have been defamed and the Court noticed that

at the behest of the institution the proceedings could be brought by a

person who need not be a person defamed. In my opinion, on facts, both

the judgments are not applicable to the instant case, particularly when the

applicant cannot be said to be falling within the meaning of "some person

aggrieved" as provided under sub-section (1) of section 199 of the Code of

Criminal Procedure.

18. In that view of the matter, in my opinion, the view expressed by the

learned Magistrate is a proper view, being based on the right and locus of

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the present applicant. The order impugned, therefore, does not warrant

any interference. Thus, Criminal Application fails and stands dismissed.

(N.W. SAMBRE, J.)

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