Maroti S/O. Bhauraoji ... vs Ramkrushna S/O. Natthuji Dhole ...
2021 Latest Caselaw 11019 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH, NAGPUR.


            CRIMINAL APPLICATION (APL) NO. 665 OF 2017


 APPLICANTS :-                 1. Maroti s/o Bhauraoji Chandankhede,
                                  aged about 68 yrs, Occ. Agriculturist, R/o
                                  Plot No.1, Ashok Colony Post Khamla,
                                  Nagpur-440 025.

                               2. Ramesh s/o Bhauraoji Chandankhede,
                                  aged about 56 yrs, Occ. Agriculturist, At
                                  and Post Pipra, Tah. Umred, Dist.Nagpur.

                                      ...VERSUS...

 NON-APPLICANTS :- 1. Ramkrushna s/o Natthuji Dhole, Aged
                      about 68 yrs, Occ. Agriculturist, At and
                      Post Pipra, Tah.Umred, Dist. Nagpur.

                               2. Mahendra s/o Ramkrushna Dhole, aged
                                  about 41 yrs, Occ. Agriculturist, At and
                                  Post Pipra, Tah. Umred, Dist. Nagpur.

                               3. Sunil s/o Ramkrushna Dhole, aged about
                                  36 yrs, Occ. Agriculturist, At and Post
                                  Pipra, Tah. Umred, Dist. Nagpur.

 -------------------------------------------------------------------------------------------
              Mr. V. G. Bhamburkar, counsel for the applicants
         Ms M.M.Ghatode, counsel for non-applicant Nos.1 to 3.
  -------------------------------------------------------------------------------------------


                                    CORAM : MANISH PITALE, J.

                                    DATE :         13.08.2021.

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 ORAL          JUDGMENT

By this application, the applicants (original complainants),

have challenged order dated 12/06/2017 passed by the Court of

17th Judicial Magistrate First Class, Court No.9, Nagpur

(hereinafter referred to as "Magistrate"), whereby complaint filed

by the applicants against the non-applicants for offences

punishable under sections 499, 500 and 501 of the Indian Penal

Code (hereinafter referred to as "IPC"), has been dismissed under

section 203 of the Code of Criminal Procedure (hereinafter

referred to as "Cr.P.C.")

2. In brief the grievance of the applicants is that the non-

applicants herein made certain defamatory statements against

them in a proceeding before the Sub-Divisional Officer, concerning

a dispute between the parties as regards boundaries of their

agricultural fields. The applicants contended that specific

statements quoted in the complaint demonstrated that the non-

applicants had committed offences punishable under sections 499,

500 and 501 of the IPC.

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3. The Magistrate called for a report under section 202 of the

Cr.P.C.

4. Thereafter, the Magistrate took up the complaint for

consideration. In the impugned order, the Magistrate came to a

conclusion that even if the statements made in the complaint were

to be accepted, it was obvious that the alleged defamatory

statements were made by the non-applicants before the Sub-

Divisional officer in a proceeding where the non-applicants were

seeking to assert their rights and that therefore, Eighth Exception

to section 499 of the IPC was squarely attracted. On this basis, the

complaint was dismissed.

5. The impugned order was made subject matter of challenge

in the present application, wherein notice was issued. The

respondent appeared through counsel and the application was

directed to be listed for final disposal at the admission stage.

6. Mr. V. G. Bhamburkar, learned counsel appearing for the

applicants, submitted that the Magistrate had committed an error

in concluding that the non-applicants were entitled to the benefit

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of Eighth Exception to section 499 of the IPC. It is submitted that

as per settled law, the said Exception could be applied only if the

accused ( non-applicants in the present case), established that the

statements that they made before the Sub-Divisional Officer were

made in good faith. It was submitted that such a finding was

necessarily a finding on facts, which could be arrived at only after

trial and that therefore, the impugned order deserved to be set

aside. Reliance placed on judgment of the Lahore High Court

passed in the case of Chanan Singh v. Tarak Singh, reported in 43

Cr.L.J. 1942, pg.572 and judgment of the Hon'ble Supreme Court

in the case of Chaman Lal v. The State of Punjab, reported in 1970

(1) SCC 590.

7. On the other hand, Ms Ghatode, the learned counsel

appearing for the non-applicants, submitted that the said non-

applicants were entitled for the benefit of Eighth Exception to

section 499 of the IPC. It was an admitted position that the

statements attributed to the non-applicants were made in a

proceeding before the Sub-Divisional Officer in the process of the

non-applicants asserting their rights in respect of the agricultural

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land. On this basis, it was submitted that Eighth Exception to

section 499 of the IPC squarely applied in favour of the non-

applicants. Reliance was placed on judgments of the Madras High

Court in the case of Balamurugan v. State Rep. by the Inspector of

Police, reported in 2021 SCC OnLine Mad 2086 and in the case of

Dr. R. Krishnamurthy, Editor and Printer v. City Public Prosecutor,

reported in 2021 SCC OnLine Mad 2676.

8. Heard the learned counsel for the rival parties and perused

the material on record. The relevant finding of the Magistrate in

the impugned order is found in paragraphs-5 and 6. After

recording that the statements of the non-applicants to which the

applicants have taken exception were made in proceedings before

the Sub-Divisional Officer pertaining to a boundary dispute of

agricultural land, the Magistrate directly came to the conclusion

that Eighth Exception to section 499 of the IPC, was clearly

attracted in the present case in favour of the non-applicants.

9. The relevant portion of section 499 of the IPC reads as

follows:

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"Sec. 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 excepted, to defame that person.

Eighth Exception - Accusation preferred in good faith to authorised person.- It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation.

Illustration If A in good faith accuses Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z's master; if A in good faith complains of the conduct of Z, a child, to Z's father - A is within this exception."

10. A perusal of the above quoted Eighth Exception to section

499 of the IPC and the illustration appended thereto shows that

the emphasis is on the words "good faith". It is specified that

when a person makes a statement in 'good faith' before a lawful

authority, such a person cannot be hauled up for the offence of

defamation. In the case of Chaman Lal v. State of Punjab (supra),

specifically in the context of Eighth Exception to section 499 of the

IPC, in paragraph-8 it has been specifically held that 'good faith'

has also to be established as a fact. In paragraph-16 of the said

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judgment, it was held that in the facts of the said case, the Court

found that there was utter lack of 'good faith' in the accusation.

11. The two judgments relied on by the learned counsel for

the respondents in the case of Balamurugan v. State Rep. by the

Inspector of Police and Dr. R. Krishnamurthy, Editor and Printer v.

City Public Prosecutor, (supra) are not relevant for the point in

issue before this Court because in those cases, the Court found on

facts that the accusations could not be said to be defamatory.

12. In the case of Chanan Singh v. Tarak Singh (supra), the

Lahore High Court specifically dealt with a question pertaining to

Eighth Exception to section 499 of the IPC. It was held that a

complaint for defamation would be maintainable in respect of

allegations made before a public servant and that the burden of

proof would lie on the accused person to show that his case fell

within Eighth Exception to section 499 of the IPC. It was

specifically held that when an accused claims benefit of Eighth

Exception to section 499 of the IPC, it has to be proved as a fact.

13. The moment the said position of law is appreciated, it

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becomes clear that the matter has to go to the next stage of

evidence and trial. The Magistrate completely failed to appreciate

this aspect of the matter and erroneously held in favour the

non-applicants, merely because the alleged defamatory statements

were made before the Sub-Divisional Officer in a proceeding

pending between the parties. The approach adopted by the

Magistrate was obviously not in tune with the aforesaid position of

law and therefore, the dismissal of the complaint cannot be

upheld.

14. In view of the above, the present application is allowed.

The impugned order is quashed and set aside and the complaint

filed by the applicants is restored before the Magistrate, to be

proceeded with in accordance with law.

JUDGE

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