Bombay High Court
S. Hussain Zaidi And Anr vs Babuji Rawji Shah And Anr on 22 December, 2021
Bench: S. K. Shinde
Digitally
signed by
SHAMBHAVI
SHAMBHAVI NILESH
35-WP-3089-2021.odt
NILESH SHIVGAN
SHIVGAN Date:
2021.12.23
16:56:58
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.3089 OF 2021
1. S. Hussain Zaidi
2. Ms. Jane Borges ...Petitioners
Vs
1. Babuji Rawji Shah
2. The State of Maharashtra ... Respondents
WITH
CRIMINAL APPLICATION NO.549 OF 2021
Bhansali Production Private Limited
and Ors. ...Applicants
Vs
Babuji Rawji Shah and Anr. ...Respondents
...
Mr. Madhu Gadoia with Mr. Shashank Trivedi i/by Naik
Naik & a for the Petitioners.
Mr. Aabad Ponda, Senior Advocate with Mr. Parag
Khandhar with Ms. Prachi Garg i/by DSK Legal for the
applicant.
Mr. Narendra Dubey for Respondent No.1.
Mr. A.D. Khamkhedkar, APP for the Respondent No.2-State.
CORAM : SANDEEP K. SHINDE J.
DATE : DECEMBER 22, 2021.
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P.C. :
Petitioners seek to quash Complaint No. CC/483/
SS/2021 and the "Issue Process" order dated 15 th March,
2021 passed, therein, against them, by the learned
Metropolitan Magistrate, 69th Court, Mazgaon.
2 Heard learned counsel for the parties.
3 Perused the petition; application; Complaint
No.483/SS/2021 and the verification statement.
4 Complainant's case, in brief, is that his mother's
name is Gangubai Harjivandas Kathiawadi ('Gangubai' for
short). He is her adopted son. Since his birth, his mother
has given him all the love and affection though she was
not his biological mother. In support of his case, the
complainant relies on a copy of the ration card,
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photographs and Gangubai's death certificate. Beyond these
documents, the complainant has not placed on record such
other documents, like adoption deed or pleaded material
particulars in relation to his adoption to support his claim
or that he is 'family member' or 'near relative' of late
Gangubai.
5 Be that as it may, his case is that on 10 th
August, 2020, he saw promos and other videos posted on
the internet of a movie called 'Gangubai Kathiawadi' based
on the life of his deceased mother, Gangubai. The said
movie has been produced and directed by the accused nos.
3 and 4 and lead role of her mother was played by accused
no.5 (applicants in the Criminal Application no.549 of
2021). That when he has gone through the articles posted
on social media and newspapers, he came to know that the
said movie was based on Chapter "The Matriarch of
Kamathipura" from the novel "The Mafia Queens of
Mumbai" written/published by accused no.1 and 2. That,
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Chapter titled as "The Matriarch of Kamathipura" portrays
character of his mother derogatory and defamatory. As a
result complainant's son-in-law was asking for the divorce
from his daughter as he thinks that complainant and his
family were from prostitute's family. After which in
December, 2020 complainant instituted Civil Suit No.6041
of 2020 in the City Civil Court at Bombay seeking
injunction and other reliefs on account of purported
defamation caused because of the novel written/published
by accused no.1 and 2. In the said Suit, Accused no. 3 to 5
filed Notice of Motion Nos. 187 and 186 of 2021, seeking
rejection of plaint under Order 7 Rule 11 of the Code of
Civil Procedure, 1882. The learned Judge, City Civil Court
vide dated 17th February, 2021 rejected the plaint instituted
by the complainant.
6 It appears just before rejection of the plaint, on
9th February 2021, complainant filed subject, complaint
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against the petitioners/applicants under Sections
499,500,501,502,511 read with 120B and 34 of the Indian
Penal Code, 1860
7 The Learned Magistrate upon recording
verification of the complainant and statements of the two
witnesses, who were the neighbours of the complainant,
issued process under Section 500,501,502 read with 34 of
the IPC against the petitioners/applicants.
8 The order 'issue process' is assailed in the
instant Petition and the Application.
9 Heard Mr. Madhu Gadoia, the learned advocate,
Mr. Aabad Ponda, the learned senior counsel, Mr. Narendra
Dubey, the learned counsel for the complainant, Mr.
Khamkhedkar, the learned Additional Public Prosecutor for
the State.
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10 Mr.Ponda, the learned senior counsel for the
petitioner, submitted that complainant is neither 'family
member' nor 'near relative' of late Gangubai. He submitted
that barring photographs and ration card, complainant has
not brought on record such other material to prima-facie
believe that late Gangubai was his adoptive mother and,
therefore, complainant had no locus-standi to file complaint
under Section 499 of the IPC. Mr. Ponda's next submission
is that the complainant doesn't aver or disclose, that
imputation of Late Gangubai were hurtful to the feelings of
her family or other near relatives. Mr Ponda submitted,
that unless twin tests envisaged in Explanation 1 to Section
499 of the Indian Penal Code are satisfied, complaint could
not have entertained at all. In support of the submissions,
Mr. Ponda relies on the paragraph 174 of the judgment of
the Supreme Court in the case of Subramanian Swamy vs
Union of India [2016] 7 SCC 221. It reads as under ;
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"174. The aforesaid enunciation of law makes it
clear how and when the civil action is not
maintainable by the legal heirs. The prosecution,
as envisaged in Explanation 1, lays two
postulates, that is, (i) the imputation to a
deceased person is of such a nature that would
have harmed the reputation of that person if he
was living, and (ii) the said imputation must be
intended to be hurtful to the feelings of the
family or other near relatives. Unless the twin
tests are satisfied, the complaint would not be
entertained under Section 199 CrPC. The said
Explanation protects the reputation of the family
or relatives. The entitlement to damages for
personal injury is in a different sphere whereas a
criminal complaint to be filed by the family
members or other relatives under twin tests being
satisfied is in a distinct compartment. It is more
rigorous. The principle of grant of compensation
and the principle of protection of reputation of
family or near relative cannot be equated.
Therefore, we do not find that any extra mileage
is given to the legal heirs of a deceased person
when they have been made eligible to initiate a
criminal action by taking recourse to file a
criminal complaint."
11 The learned Magistrate should have considered
all things before issuing the process. He has neither verified
whether the complainant was 'family member' or 'near
relative of late Gangubai' nor verified whether the
complaint, prima facie, discloses that the alleged
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imputations to the deceased Gangubai were intended to be
hurtful to the feelings of the complainant. As it appears,
from the complaint, verification statement and statements of
witnesses that, complainant being neither 'Family Member'
nor 'near relative' of late Gangubai, had no locus to file
complaint. Moreover, complainant does not aver or disclose
that imputations were intended to cause distress to the
feelings of the complainant.
12 Thus, prima-facie, case is made out to grant
interim relief.
13 Rule.
14 Pending petition there shall be interim relief in
terms of prayer clause ( c ) in Writ Petition No. 3089 of
2021.
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15 Pending Criminal Application No.549 of 2021,
there shall be interim relief in terms of prayer clause ( c ).
16 Hearing is expedited.
(SANDEEP K. SHINDE,J.)
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