Calcutta High Court (Appellete Side)
K. Naga Satyanarayan Verma vs Jeeri Sudhakar Reddy & Anr on 24 February, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 3815 of 2019
K. Naga Satyanarayan Verma
Vs
Jeeri Sudhakar Reddy & Anr.
For the Petitioner : Ms. Somasree Saha.
For the Opposite Party No. 1 : Mr. Somopriyo Choudhury,
Mr. Imran Hossain,
Mr. Sanket Sarowgi,
Mr. Subhojit Ghosh.
For the State : None.
Heard on : 03.02.2023
Judgment on : 24.02.2023
2
Shampa Dutt (Paul), J.:
The present revision has been preferred praying for quashing of
proceeding being A.C. Case No. 1682 of 2019 pending before the
Learned 7th Judicial Magistrate, Alipore under Sections 500 and 501 of
I.P.C.
The petitioner case is that the case of the prosecution as made
out in the petition of complaint is as follows:-
The accused/petitioner has circulated certain
letter dated 27.02.2018, 06.03.2018 and 14th March
2018 to the Prime Minister of India, The President of
India, Finance Ministry and Branch Manager Andhra
Bank Bullayya College Branch, Visakhapatnama also to
Reserve Bank of India against the complainant
containing defamatory statements hurting the reputation
of the complainant who is a reputed Chartered
Accountant and at present. Accountant Member of
Income Tax Appellate Tribunal ITAT, Kolkata. The
allegations contained in the said letters according to the
complainant is baseless but still the same has made
loss of his reputation which cannot be restored and thus
this complainant filed case being AC. Case No.
1681/2019 under Section 500/501 of the Indian Penal
Code for defamation against the present petitioner.
The subject of the said letters and their references are
enumerated hereunder:-
Sl. Date Subject Reference
No.
1. 27.02.2018 Information about the Gayatri Estates
fraudulent documents Gayatri Towers
3
submitted by Gayatri constructed in the
Towers Constructed by land covered by T.S.
Gayatri Estate No. 52/1BI of
represented its partners Waltair Ward Block
Smt. Jeeri Padmaja Rani No. IV, Peda Waltair
wife of Jeeri Sudhakara Doctors Colony
Reddy by colluding with Near Karakachettu
Chilla Rama Rao Reddy Polamamba Temple,
and others who are not Visakhapatnam
having any title over the
property covered by T.S.
No. 52/1BI of Waltair
Ward Block No. IV Peda
Waltair, Visahapatnama
as a citizen of India to
save Banks as well as
innocent general public
Reg.
2. 06.03.2018 Complainant about the Gayatri Estates
black money holding by Gayatri Towers
Jeeri Sudha Kara Reddy Constructed in the
who is working as land covered by T.
Accountant Member, S. No. 52/1BI, of
Income Appellate Tribunal Waltair Ward, Block
presently working at No. IV, Peda
Mumbai with that black Waltair, Doctors
money constructed 218 Colony, Near
Flats in the name and Karakachettu,
style of Gayatri towers by Polamamba,
constituting a firm Temple,
Gayatri Estates is the Visakhapatnam,
mane of his wife Jeeri Andra Pradesh.
Padmaja Rani and brother
in law Mareddy Venkata
Reddy High Quality
construction at
Viskhapatnam project
value worth Rs. 245
Crores without even
4
taking Single Piety way of
bank loan-Reg.
3. 14.03.2018 Complaint about the Gayatri Estates
black money holding by Gayatri Towers
Jerri Sudhakara Reddy constructed in the
who is working as land covered by T.S.
accountant member, No. 52/1BI of
Income Tax Appellate Waltair Word Block
Tribunal presently No. IV Pedawaltair
working at Kolkata Bench Doctors Colony near
with that black money Karakachetty,
constructed 215 Polamamba,
Residential flats in the Temple,
name and style of Gayatri Visakhapatnam,
Towers by constituting a Andra Pradesh.
firm Gayatri Estate in the
name of his wife Jeeri
Padmaja Rani and
brother-in-law Mareddy
Venkata Reddy, High
Quality construction at
Visakhapatnam project
value worth Rs. 245
crores without taking
even singe pie by way of
bank loan,
The petitioner further states in this regard that the complainant
as plaintiff along with initiation of this Criminal Proceeding has also
filed a Civil Suit being T.S. No. 983/2018 before the Learned Civil
Judge Senior Division, Second Court at Alipore. That the Purpose of
both the proceedings is one and only to adjudicate whether the
petitioner has committed any defamation or not. The Learned Trial
Court adjudicating the Civil Suit has already passed an order of
5
injunction on 28.06.2019 restraining the defendant/petitioner herein
from publishing orally or in writing any defamatory words or statement
against the plaintiff till the disposal of the suit.
That the Proceeding as initiated by the Learned Magistrate also
does not satisfy the ingredients of Sections 500 and 501 of I.P.C. as the
investigation regarding the complaints are continuing and as also there
was never by publication and/or transmission through media of these
letters and/or any intention of the said publication. It is further stated
letters were confidential and written to investigate and/or verify the
truth and /or real fact for the purpose of welfare of general public.
That the petitioner being a responsible Citizen of India, in the
interest of society have launched complaints/allegation before certain
institutions confidentially and those complainants were never exposed
to Public at any point of time and/or to publish and/or telecasted in
any sort of media and thus the allegations in the aforesaid proceeding
that he has committed defamatory statements against the complainant
to damage his reputation is false and untenable. It is further stated that
the petitioner has never ever addressed any letter of complaint to the
plaintiff or his agents in any manner. It is further stated herein that the
complaints as filed by the petitioner are still under investigation and as
such whether the complainant/opposite party is innocent or not is still
to be decided/matter of adjudication/which is the outcome of the
6
enquiry and as such whether the instant case is maintainable or not
can only be decided after the authorities complete investigation against
the complainant and he is declared innocent.
The petitioner further states the complainant has also filed a
Civil Suit before the Learned 2nd Court of Civil Judge (Sr. division) at
Alipore being the Title Suit No. 983 of 2018 and also another Suit being
O.S. 587/2018 before the Learned Additional District Judges Court
Visakhapatnam, Andhra Pradesh on the Selfsame cause of action and
as such it is submitted that until and unless the Civil cases are decided
and the Investigation against the complainant is complete the instant
proceeding is premature and should be quashed.
Ms. Somasree Saha, learned counsel for the petitioner has
submitted that the Learned Judge failed to consider the fact that unless
the complainant is declared innocent by the Investigation authorities
and the Civil Suits are adjudicated, the aforesaid proceedings of
defamation is not to be taken cognizance of as the same is premature
and thus not maintainable and liable to be quashed.
The Learned court erred in law by taking cognizance of the said
case though the complainant has not yet been declared innocent by the
authorities and as such unless and until he is declared innocent the
question of the allegations being baseless, levied only to hurt his
reputation does not arise and as such the same is not defamation as
7
the genuinity of the statements are yet to be ascertained and as such
the instant proceeding needs to be quashed.
The act of the petitioner does not in any way attract the
provision of defamation as contained in the Act and thus the
proceedings need to be quashed.
The letters written by the petitioner were confidential letters of
request to investigate to different authorities to see whether the
transactions involved in Gayatri Towers was fraudulent or not so that
the money invested by general public in it does not get wasted and the
letters were never circulated or made media and/or there was no
intention of doing so and as such the basic ingredients of defamation
are not attracted however the Learned trial Court without considering
this aspect took cognizance of the matter and the same being without
jurisdiction needs to be quashed.
Mr. Somopriyo Choudhury, learned counsel for the opposite
party has submitted on the basis of his affidavit in opposition that the
case of the Opposite Party/Complainant is that:-
a) The opposite party No. 1 was a highly respected and renowned
officer of the Government of India and held the position of an
Accountant Member of the Income Tax Appellate Tribunal,
Kolkata under the category of General Central Service, Class I
- Group A, Gazzetted Officer equivalent to the rank of an
8
Additional Secretary to the Government of India. Throughout
his career, the opposite party No. 1 commanded respect and
goodwill amongst his colleagues and associates for his
integrity, ethics and expertise.
b) The opposite party No. 1 is a law abiding citizen of India. No
criminal complaint has ever been lodged against the opposite
party No. 1 at any point of time. As a matter of fact, as on date
no civil or criminal case is pending against the opposite party
No. 1
c) One M/s Gayathri Estates, a partnership firm, had acquired a
property being site measuring 12,341.86 sq.yds or 10319.40
sq. mtrs. of land in Block No. 4, Town Survey No. 52/1B-1 of
Waltair Ward, Doctors Colony Road, Visakhapatnam, Andhra
Pradesh (hereinafter referred to as "the said land") for the
purpose of carrying out development work there at. The
brother-in-law of the opposite party No. 1, M. Venket Reddy
and the opposite party No. 1's wife J. Patmaja Rani had
acquired the said property for development purpose on 3rd day
of January, 1995, which is much prior to the opposite party
No. 1 joining public service in the year 2001. Thereafter, both
of them formed a partnership firm on 8th October 1998 and
contributed all their rights in this property, as their capital
into the partnership firm, M/s Gayathri Estates. This event is
9
also prior to the year 2001. The said partnership firm was
reconstituted from time to time by its partners. The said
property was given for construction, development and building
of "residential apartments" on "turnkey basis" on "built up
area sharing" basis to reputed builder as a Joint Venture. M/s.
Gayathri Estates did not develop the property by itself. Hence
the expenditure for development, building and construction of
the residential apartments was not incurred by the firm M/s
Gayathri Estates, bur by the Joint Venture Company M/s.
Welfare Builders & Estates Pvt. Ltd. and thereafter now by
M/s GCON Associates.
d) The opposite party No. 1 at no point of time either directly or
indirectly was connected with M/s Gayathri Estates or any
transaction done by them in respect of the said property. This
fact that M/s. Welfare Builders & Estates Pvt. Ltd. had taken
up the construction and development of the said property on
turnkey basis and had incurred all the expenditure required
thereof is known to the petitioner who had filed W.P. No.
19884/2010 in the High Court of Andhra Pradesh including
M/s Welfare Building & Estates Pvt. Ltd. as a respondent.
e) The opposite party No. 1, upon enquires, has come to learn
that the petitioner claiming to be a General Power of Attorney
Holder of one Boddeda Narayana Babji, Proprietor of M/s Sai
10
Modern Construction had made several unsuccessful attempts
to acquire and/or grab the said property from M/s. Gayathri
Estates.
f) It is after the failure of the petitioner to acquire the said
property, several proceedings were initiated and /or caused to
be initiated by him in respect thereof. It is pertinent to mention
that in all of those proceedings the petitioner has miserably
failed. A chart in this regard is provided herein below :-
Sl. Date Description Plaintiffs Defendants Case Remarks
No filed for
.
1. 29/05/2006 W.P. No. Boddeda 1)Govt. of To Withdrawn
10626/200 Narayan Andhra register as
6 Babji Pradesh FIR dismissed
2) Station on
House 22/01/20
3) Ponnada
Mohana
Rao
2. 29/10/2007 OS No. G.Bangar Nidrabhangi Suit for Dismissed
98/2008 Rao & and Chilla Specific
Others families &
Performa
Others nce
basing on
agreemen
t of year
3. 18/04/2008 W.P. No. Sri Sai 1)GVMC To Closed
8630/2008 Modern 2)Chilla Consider
Constructi Appalakon represent
on by GPA damma & ation on
Holder K 10 Ors. dt.
Naga 24/02/2
Satyanna 008 and
rayana conseque
Verma ntial
directly
represent
not to
grant
building
permissio
n
4. 24/02/2008 Representat Sri Sai Ponneda Not toRejected
ion to Modern Mohan Rao entertain by GVMC
G.V.M.C. Constructi building vide ROC.
on Prop. applicatioNo.
B. ns 130/08/C
Narayana P dated
Bebji 14/10/20
5. 23/05/2008 Representat K.N. Chilla Revocatio Rejected
ion to Satyanara Ramarao n of Plan by GVMC
G.V.M.C. yana Reddy and approval vide ROC.
Verma Others granted No.
(GPA to Chilla 130/08/C
holder of Ramarao P dated
B. Reddy 14/10/20
Narayana and 08
Babji) Others
6. 30/09/2008 Representat K.N. Chilla For Ejected by
ion to Satyanara Ramarao action GVMC vide
Mayor, yana Reddy and against Find
G.V.M.C. Verma Others Chilla entrance
(GPA Ramarao ROC No.
holder of Reddy 130/08/C
B. and P dated
Narayana Others 14/10/20
7. 14/10/2008 Final Commissio Sri Sai The
endorsemen ner Modern Commissio
t ROC. No. G.V.M.C. Constructio ner GVMC
130/08/CP n Prop. B considered
Narayana the
Bebji representa
tions at S.
and 8 and
after
detailed
enquiry
and proper
publicatio
n rejected
the
representa
tion.
8. 11/08/2010 W.P. No. Sri Sai 1)GVMC Declaring Dismissed
19884/201 Modern 2)Chief the
0 constructi Planner action of
ons B. 3)Nidrabha reponden
Narayana ngi and C ts 1 and
Babbji rep. hilla 2 in
GPA families. allowing
holder 4)Welfare responde
Kolla Naga Buildings & nts 1 and
Satyannar Estates Pvt. 2
ayana Ltd. inallowin
Verma g
responde
nt 3 and
construct
ion in
respect of
the
property
& Sy.
No.
52/B1
g) The petitioner's grudge against the opposite party No. 1
developed further after the attempt made by the petitioner
and his associated to grab the said land was foiled by the
intervention of the Civil Court of competent jurisdiction
being 1st Additional District Judge, Vishakhapatnam in O.S.
No. 258 of 2006.
h) After the aforesaid order was passed against the petitioner
by the jurisdictional Civil Court and the same attained its
finality, and the illegal attempts made by the petitioner to
grab the property failed; he and the other persons acting in
conspiracy with him started to circulate letters containing
grossly defamatory imputations against the opposite party
No.1, although the opposite party No. 1 was not connected
with the said land or the dispute relating to the said land in
any manner.
i) Initially, the petitioner had set up one Kovvuri Sambasiva
Reddy to address a letter dated 1st October, 2014 and 9th
May, 2015 to the Central Vigilance Commission and Under
Secretary to the Government of India respectively, making
imputations against the opposite party No. 1 to the
following effect :-
(i) That the opposite party No. 1 is involved in
laundering of crores of rupees of public money and
(ii) That the opposite party No. 1 has used his position
to divert the illegally acquired money and used the
same in a property on which a residential project
has been raised.
(iii) Copies of the said letters dated 1st October, 2014
was also sent to the Prime Minister's office.
j) The Central Vigilance Commission referred the matter to
the Minister of Law and Justice, who conducted an inquiry
and did not find any foundation or basis in the allegations
made by the said Kovvuri Sambasiva Reddy who is a stooge
of the petitioner.
k) From the said letter it is clear that the Ministry of Law and
Justice upon enquiring decided not to take any action on
the baseless complaints of Kovvuri Sambasiva Reddy, In
fact, on 18th January, 2021 the President of the Income Tax
Appellate Tribunal has issued a certificate stating that no
vigilance case/disciplinary proceeding is pending against
the opposite party No. 1.
l) Consistently failing in all the aforesaid fora, the petitioner
starting sending letters to the superior
authorities/professional bosses of the opposite party No.1,
namely, the president, Income Tax Appellate Tribunal, the
Vice President, Income Tax Appellate Tribunal and Branch
Manager, Andhra Bank. Three letters dated 27th February,
2018, 6th March, 2018 and 14th March, 2018 sent to the
aforesaid authorities are full of false and criminally
defamatory allegations and imputations against the
opposite party No. 1. Summary of the contents of the said
letters are set out herein below:-
i. The opposite party No. 1 has constituted a firm
namely Gayatri Estates in the name of his wife,
Jerri Padmaja Rani and brother-in-law, Marreddy
Venkatareddy, and that the said firm constituted
by the opposite party No. 1 has entered into a
registered agreement to sale, general power of
attorney and construction agreement which was
registered by Chilla Rama Rao Reddy and others
for construction of a residential apartment at
Vishakhapatnam.
ii. The opposite party No. 1 with his black money has
constructed stilt, cellar, ground plus 6 floors of a
building on the said land totalling 218 flats by
spending nearly Rs, 65 Crores.
iii. The opposite party no. 1 while selling the said flats
is getting Rs. 3,200/- per square feet as
unaccounted money. Gayatri Estates has sold flats
to the third parties and is in the process of selling
some other flats.
iv. The opposite party No. 1 being the Accountant
Member of the Income Tax Appellate Tribunal with
his black money and with the influence of his
official status by influencing black money holders
has forced them to invest in his project in the
name of his wife and brother-in-law and completed
the project without obtaining any bank loan.
v. The opposite party No. 1 has evaded Crores of
rupees in taxes payable to the government and
cheated the Income Tax Department.
m) The said letters were received at the receiving section of
such high dignitaries and subsequently had gone to various
concerned officers including the stenographers, secretaries,
office staff and other officers of the Income Tax Appellate
Tribunal. Furthermore, the letter dated 27th February, 2018
which was issued to the Branch Manager of Andhra Bank,
Bullayya College Branch, Vishakhapatnam was also
forwarded to the Regional Office and Head Office of Andhra
Bank and as such, apart from the Branch Manager and
other employees of the branch, the employees and officers
of the Regional Office and Head Office of Andhra Bank had
also gained access to and knowledge of the said letters and
contents thereof.
n) After the aforesaid letters were circulated, the opposite
party No. 1 received hundreds of phone-calls and
communications from various persons including his long
time associates, friends, Central Government officers,
stating that the contents of those letters has led to grossly
lowering of the intellectual and moral character of the
petitioner in their eyes.
o) Those letters were circulated by the accused
person/petitioner to different authorities, as stated above
as a result of which numerous people who knew the
opposite party No. 1 as a honest and upright officer,
thought him to be a corrupt and immoral person and thus,
the intellectual and moral character of the opposite party
No. 1 was demanded in such manner that his credibility
and goodwill as an officer of the Central Government and
that too, in the position of an adjudicatory authority, where
impartiality of a member is of highest importance, suffered
greatly and the public image of the opposite party No. 1 was
tarnished completely.
p) By the calculated criminal activities of the petitioner, the
moral and intellectual standing of the opposite party No. 1
which he had created after a number of years of
painstaking hard work, was ruined irreparably amongst his
colleagues, friends, associates and relatives.
In such circumstances, the opposite party No. 1 was
compelled to file a complaint before the Learned Chief Judicial
Magistrate at Alipore and on the basis of the aforesaid complaint,
cognizance was taken and process was issued in due compliance with
the procedure established by law by the jurisdictional Court.
It is submitted in this regard that though no point has been
raised by the petitioner in his petition regarding Section 202 of the Code
of Criminal Procedure, 1973 but it seems that such point has been
raised at the stage of moving the revisional application before this
Hon'ble Court as "Listed Motion" (Ex parte). It is submitted that it is no
longer res integra that exercise of examination of witness/witnesses
produced by the complainant amounts to an inquiry contemplated
under Section 202 of the Code of Criminal Procedure, 1973. The
examination of the complainant amounts to compliance of Section 200
of the Code of Criminal Procedure and examination of witness and
recording of initial deposition of witness produced by the complainant
amounts to compliance of Section 202 Cr.P.C.
In the light of the submissions made hereinabove, the prayers
made in the revisional application are completely untenable and wholly
unfounded and therefore, liable to be rejected and this revisional
application (CRR No. 3815 of 2019) is liable to be dismissed with
exemplary costs.
The petitioner has submitted written notes of argument stating
the facts as stated in the revisional application and further stating that
this Hon'ble Court while passing the ad-interim order of stay in the
appeal has observed that:-
"Prima facie", the statements made in paragraph
17 (a) to (e) of the stay petition appear to be defamatory
of the appellant.
Prima facie, the respondent had no right to make
and publish those statements unless he can establish
their truth/justification and/or some kind of privilege to
him to publish those statements.
The right of the respondent is required to be
demonstrated at this stage or the stage of the trial.
Until he does so, the statements are deemed to be
false and made maliciously of the appellant.
On the above prima facie case, we grant an order
of injunction restraining the respondent from making
and publishing the above statements or any other
statements of that kind or nature till 14th December,
2018 or until further order whichever is earlier"
It is further stated by the petitioner that the findings therein
were only made at an interim stage and the rest were to be decided in
trial of the suit which is still to be concluded. It is denied that same
cause of action which is adjudicated in civil forum can be adjudicated in
Criminal Forum also at the same time. More over when the contents of
the letter are still under investigation. It is denied that no point has
been raised by the petitioner in his petition regarding Section 202 of
Cr.P.C. It is further stated that this being point of law can be raised at
any stage.
The following judgements have been relied upon on behalf of
the petitioner.
1. (AIR 1991 SCC 1531) Bal Kishan Das Vs. P.C. Nayar (matter
relates to Section 406 Indian Penal Code).
2. Unreported judgement passed in CRR 2369 of 2003 K. Paka Singh
@ Konthouiam Paka Singh Vs. Miss. Nivedita Sengupta.
The aforesaid case refers to a judgment of the Hon'ble Apex
Court reported in (2020) 10 SCC 118 where principle of quashing has
been settled.
3. (2010) 6 SCC 243 Jeffrey J. Diermeier Vs State of W. B.
The opposite party has relied upon the following judgements
in support of their case.
1. Jeffrey J Diermeier Vs. State of West Bengal (2010 (6) SCC 243).
2. M.C.Verghese Vs Poonam and Another ((1969)1 SCC 37).
3. Chamanlal Vs State of Punjab ((1970) 1 SCC 590).
4. Sewakram Subhani Vs R. K. Karanjia ((1981) 3 SCC 208).
5. Indian Oil Corporation Vs NEPC ((2006) 6 SCC 736).
6. Vijay Dhanuka & Ors. Vs Nazima Mumtaz & Ors. ((2014 (14) SCC
638).
Heard both side. Perused the materials on record. Considered.
The relevant orders of the Trial Court are dated 02.03.2019 and
15.03.2019.
Order dated 02.03.2019.
Case No. A.C. 1682 of 2019
A petition of complaint is filed U/s 200 Cr. P.C.
Heard Ld. Advocate for the complainant, perused the
petition of complaint.
Considered, cognizance is taken, register the same, let
the case be transferred to the file of Ld. 7th J.M. at Alipore, for
disposal in accordance with law.
Complainant is directed to appear before the transferee
court.
D & C by me
Sd/-
A.C.J.M., Alipore, South 24 Parganas
Order dated 15.03.2019.
Case No. A.C. 1682/2019
Record is put up today.
The complainant is present today before the Court
along with a witness namely Soumitra Choudhury and they
have been examined under Section 200, Cr.P.C. No other
witness is present. Complainant files some documents, let it be
kept with the record.
Heard. Perused the petition of complaint and materials
on it, also perused the statement on oath of the complainant and
the witness on record and documents as submitted by the
complainant.
The evidence of witness Soumitra Choudhury is
considered and is taken for the compliance as laid down in
Section 202. Cr.P.C.
Accordingly considering all, this Court finds prima facie
case to proceed against the accused persons for the offence
under Sections 500/501, IPC.
According, issue summons against the accused persons.
Complainant is directed to file the requisite at once.
Fix 13.05.2019, for SR and appearance.
Sd /-
J.M. 7th Court, Alipore
The Supreme Court in Shivjee Singh vs Nagendra Tiwary and
Ors., Criminal Appeal No. 1158 of 2010, on 6 July, 2010, held:-
"Para 12. The use of the word 'Shall' in
proviso to Section 202(2) prima facie indicative
of mandatory character of the provision
contained therein, but a close and critical
analysis thereof along with other provisions
contained in Chapter XV and Sections 226
and 227 and Section 465 would clearly show
that non examination on oath of any or some
of the witnesses cited by the complainant is,
by itself, not sufficient to denude the
concerned Magistrate of the jurisdiction to
pass an order for taking cognizance and issue
of process provided he is satisfied that prima
facie case is made out for doing so. Here it is
significant to note that the word 'all' appearing
in proviso to Section 202(2) is qualified by the
word 'his'. This implies that the complainant is
not bound to examine all the witnesses named
in the complaint or whose names are disclosed
in response to the order passed by the
Magistrate. In other words, only those
witnesses are required to be examined whom
the complainant considers material to make
out a prima facie case for issue of process. The
choice being of the complainant, he may
choose not to examine other witnesses.
Consequence of such non-examination is to be
considered at the trial and not at the stage of
issuing process when the Magistrate is not
required to enter into detailed discussions on
the merits or demerits of the case, that is to
say whether or not the allegations contained
in the complaint, if proved, would ultimately
end in conviction of the accused. He is only to
see whether there exists sufficient ground for
proceeding against the accused.
Para 16. As a sequel to the above
discussions, we hold that examination of all
the witnesses cited in the complaint or whose
names are disclosed by the complainant in
furtherance of the direction given by the
Magistrate in terms of proviso to Section
202(2) is not a condition precedent for taking
cognizance and issue of process against the
persons named as accused in the
complaint..........."
Accordingly the order dated 15.03.2019 passed by learned
Judicial Magistrate, 7th Court, Alipore, South 24 Parganas in Case No.
A.C. 1682 of 2019 is in accordance with the settled principle of law.
The present case under revision is against a proceeding under
Section 500 and 501 of the Indian Penal Code.
Section 499 of the Indian Penal Code lays down as follows:-
"Section 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
case hereinafter excepted, 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.
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 lothsome state, or in a state
generally considered as disgraceful.
First Exception.-- Imputation of truth which
public good requires to be made or published.--It
is not defamation to impute anything which is
true concerning any person, if it be for the public
good that the imputation should be made or
published. Whether or not it is for the public
good is a question of fact.
Second Exception.-- Public conduct of public
servants.--It is not defamation to express in a
good faith any opinion whatever respecting the
conduct of a public servant in the discharge of
his public functions, or respecting his character,
so far as his character appears in that conduct,
and no further.
Third Exception.-- Conduct of any person
touching any public question.--It is not
defamation to express in good faith any opinion
whatever respecting the conduct of any person
touching any public question, and respecting his
character, so far as his character appears in that
conduct, and no further.
Fourth Exception.-- Publication of reports of
proceedings of Courts.--It is not defamation to
publish substantially true report of the
proceedings of a Court of Justice, or of the result
of any such proceedings.
Explanation.-- A Justice of the Peace or other
officer holding an enquiry in open court
preliminary to a trial in a Court of Justice, is a
Court within the meaning of the above section.
Fifth Exception.-- Merits of case decided in
Court or conduct of witnesses and others
concerned.--It is not defamation to express in
good faith any opinion whatever respecting the
merits of any case, civil or criminal, which has
been decided by a Court of Justice, or respecting
the conduct of any person as a party, witness or
agent, in any such case, or respecting the
character of such person, as far as his character
appears in that conduct, and no further.
Sixth Exception.-- Merits of public
performance.--It is not defamation to express in
good faith any opinion respecting the merits of
any performance which its author has submitted
to the judgment of the public, or respecting the
character of the author so far as his character
appears in such performance, and no further.
Explanation.-- A performance may be
submitted to the judgment of the public
expressly or by acts on the part of the author
which imply such submission to the judgment of
the public.
Seventh Exception.-- Censure passed in good
faith by person having lawful authority over
another.--It is not defamation in a person having
over another any authority, either conferred by
law or arising out of a lawful contract made with
that other, to pass in good faith any censure on
the conduct of that other in matters to which
such lawful authority relates.
Eighth Exception.-- Accusation preferred in
good faith to authorized 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.
Ninth Exception.-- Imputation made in good
faith by person for protection of his or other's
interests.--It is not defamation to make an
imputation on the character of another provided
that the imputation be made in good faith for the
protection of the interests of the person making
it, or of any other person, or for the public good.
Tenth Exception.-- Caution intended for good
of person to whom conveyed or for public good.--
It is not defamation to convey a caution, in good
faith, to one person against another, provided
that such caution be intended for the good of the
person to whom it is conveyed, or of some
person in whom that person is interested, or for
the public good."
Section 500 of the Indian Penal Code lays down as follows:-
"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.
Scope.- The essential ingredient of the offence
is that the imputation should have been made or
published with the intention of harming or with
the knowledge or with reasons to believe that
the imputation will harm the reputation of such
person.
Ingredients of offence.- The offence of
defamation consist of three essential
ingredients, viz.:
(1) Making or publishing any imputation
concerning any person;
(2) Such imputation must have been made by
words either spoken or intended to be
read, or by signs, or by visible
representations, and
(3) Such imputation must have been made
with the intent to harm, or with
knowledge or belief that it will harm the
reputation of the person concerned."
In the present case, it prima facie appears that:-
(a) The petitioner has made imputation concerning the
complainant (by way of letters to persons of authority).
(b) Such imputation has been made by words intended to be
read.
(c) Such imputation has been made with the intent to harm and
with knowledge and belief that it will harm the reputation
of the complainant/opposite party.
The facts in the case between the parties is also covered by
explanation 4 of the Section 499 IPC.
Whether the conduct of the petitioner/accused is covered by
any of the exceptions is subject to trial. This is not the appropriate
forum, there being sufficient materials against the petitioner in respect
of the offence alleged and prima facie evidence to go to trial in the
present case.
The complaint in this case relates to the complainant/opposite
party being a reputed public servant. The petitioner/accused has issued
three letters of 27th February, 2018, 6th March, 2018 and 14th March,
2018 to various statutory authorities, high ranking officials and
dignitaries making allegedly absolutely false and baseless allegations
which prima facie lowers the moral or intellectual character of the
complainant before others.
Since the complainant is part of an adjudicatory body and
performs judicial duties as an "Accountant Member" of the Hon'ble
Tribunal, the aspersions which have been made by the accused and
others set up by him, has amounted to prima facie damaging the
reputation of the complainant in the eyes of the members of the Bar
and the Chartered Accountants and Taxation Practitioners as a whole.
It is the case of the complainant that number of persons in whose eyes
the complainant was held in highest regard and estimation has called
upon the complainant to express their discontent and to communicate
that the reputation and estimation of the complainant would never be
restored back to the positions, it originally used to be.
The criminal defamation caused by the petitioner was made
and circulated in printed and engrafted form to various third parties
and highly placed statutory and constitutional functionaries.
The alleged defamatory statements made by the petitioner are
as follows:-
Sub:- "Information about the fraudulent documents submitted
by Gayatri Towers constructed by Gayatri Estates rep. by its Partners
Smt. Jeeri Padmaja Rani, W/o. Jeeri Sudhakara Reddy by colluding
with Chilla Rama Rao Reddy and others who are not having any title
over the property covered by T.S. NO. 52/1B1 of Waltair Ward Block No.
IV, Peda Waltair, Visakhapatnam - as a citizen of India to save banks
as well innocent general public- Reg."
(a) To the Branch Manager Andhra Bank, Bullayya College Branch,
Visakhapatnam with copy to Reserve Bank of India and Prime
Minister of India.
".............It is further bring to your kind notice that
Jeeri Sudhakara Reddy who is no other than
husband of Jeeri Padmaja Rani, Partner of Gayatri
Estates, is working as Income Tax Appellate
Tribunal member at New Delhi and he is highly
influenced person, by using his influence he is
making his best efforts to get the loans to his project
Gayatri Towers. If your officials grant any loans
under the influence of the said Jeeri Sudhakara
Reddy, your bank will also be in the list of banks
who were got cheated by Nirav Modi, Punjab
National Bank for 11,000 crores and other
banks cheated by Kotari for 800 crores and
other persons. The copy of this letter also being
sent to Reserve Bank of India and Prime
Minister of India."
(b) To
The president,
Income Tax Appellate Tribunal,
Pratishtha Bhavan, 3rd and 4th floors, 001,
M.K. Road, Mumbai-400020
"Complaint about the black money holding by
Jeeri Sudhakara Reddy, who is working as
Accountant Member, Income Tax Appellate
Tribunal presently working at Mumbai with that
black money constructed 218 flats in the name
and style of Gayatri Towers by constituting a
firm Gayatri Estates in the name of his wife
Jeeri Padmaja Rani and brother-in-law
Marreddy Venkata Reddy - High Quality
Construction at Visakhapatnam- Project value
worth Rs. 245 crores without even taking single
pie by way of bank loan-Reg."
In 2014, Dr. Subramanian Swamy made corruption
allegations against Ms. Jayalathitha. In response, the Tamil Nadu
State Government filed defamation cases against Dr. Swamy.
Thereafter, Dr. Swamy and other prominent politicians challenged the
constitutionality of the criminal defamation law in India, i.e., Sections
499 and 500 of the Indian Penal Code (IPC). A two-judge bench of the
Supreme Court comprising Justices Dipak Misra and P. C. Pant decided
the case.
Section 499 defines defamation and Section 500 prescribes the
punishment. Defamation is defined as spoken or written words or
visible representations, concerning any person intended to harm
his/her reputation. Exceptions to this include an 'imputation of truth'
required for a 'public good', or the conduct of any person touching any
public question, or expressing opinions on a public performance.
The challenge before the Court was twofold - first, whether
criminalising defamation is an excessive restriction on freedom of
speech, and second, whether the criminal defamation law under
Sections 499 and 500 is vaguely phrased and hence arbitrary.
On 13 May 2016, the Court held that Section 499 is not an
excessive restriction under Article 19(2). It held that society is a
collection of individuals, and what affects individuals also affects the
society as a whole. Hence, it held that it is valid to treat defamation as a
public wrong. It held that criminal defamation is not a disproportionate
restriction on free speech, because protection of reputation is a
fundamental right as well as a human right.
The Court relied on the judgments of other countries and
reaffirmed the right to reputation as a part of the right to life
under Article 21. Using the principle of 'balancing of fundamental
rights', the court held that the right to freedom and speech and
expression cannot be "allowed so much room that even reputation of an
individual which is a constituent of Article 21 would have no entry into
that area".
Further, the Court held that Sections 499 and 500 IPC are not
vaguely worded or ambiguous. Using the Constituent Assembly
Debates to understand what the framers of the Constitution meant by
the word "defamation" in Article 19(2), the Court held that the word is
its own independent identity. It stands alone and defamation laws have
to be understood as they were when the Constitution came into force.
Thus the Supreme Court in Subramanian Swamy vs. Union
of India, Ministry of Law and others (2016) 7 SCC 221, while
deciding the case held:-
"We have referred to these authorities to
highlight that in matters of criminal defamation
the heavy burden is on the Magistracy to
scrutinise the complaint from all aspects. The
Magistrate has also to keep in view the language
employed in Section 202 Cr.P.C. which
stipulates about the resident of the accused at a
place beyond the area in which the Magistrate
exercises his jurisdiction. He must be satisfied
that ingredients of Section 499 Cr.P.C. are
satisfied. Application of mind in the case of
complaint is imperative.
We will be failing in our duty if we do not
take note of submission of Mr. Bhambhani,
learned senior counsel. It is submitted by the
learned senior counsel that Exception to Section
499 are required to be considered at the time of
summoning of the accused but as the same is
not conceived in the provision, it is
unconstitutional. It is settled position of law that
those who plead Exception must prove it. It has
been laid down in M.A. Rumugam (supra) that
for the purpose of bringing any case within the
purview of the Eighth and the Ninth Exceptions
appended to Section 499 IPC, it would be
necessary for the person who pleads the
Exception to prove it. He has to prove good faith
for the purpose of protection of the interests of
the person (1998) 5 SCC 749 making it or any
other person or for the public good. The said
proposition would definitely apply to any
Exception who wants to have the benefit of the
same. Therefore, the argument that if the said
Exception should be taken into consideration at
the time of the issuing summons it would be
contrary to established criminal jurisprudence
and, therefore, the stand that it cannot be taken
into consideration makes the provision
unreasonable, is absolutely an unsustainable
one and in a way, a mercurial one. And we
unhesitatingly repel the same.
In view of the aforesaid analysis, we uphold
the constitutional validity of Sections
499 and 500 of the Indian Penal Code
and Section 199 of the Code of Criminal
Procedure. During the pendency of the Writ
Petitions, this Court had directed stay of further
proceedings before the trial court. As we declare
the provisions to be constitutional, we observe
that it will be open to the petitioners to challenge
the issue of summons before the High Court
either under Article 226 of the Constitution of
India or Section 482 Cr.P.C., as advised and
seek appropriate relief and for the said purpose,
we grant eight weeks time to the petitioners. The
interim protection granted by this Court shall
remain in force for a period of eight weeks.
However, it is made clear that, if any of the
petitioners has already approached the High
Court and also become unsuccessful before this
Court, he shall face trial and put forth his
defence in accordance with law."
The court further held :-
"The court while deciding over the matter
considered various landmark judgments
including the Gian Kaur v. State of Punjab (1996)
2 SCC 648, Board of Trustees of the Port of
Bombay v. Dilipkumar Raghavendranath
Nadkarni and others (1983) 1 SCC 124 to come
to the peroration of inclusion of the right to
reputation under Article 21. Over the issue of the
exaggeration of 'defamation' under the
restrictions of Article 19(1)(a) the court referred to
the speech of Dr. B. R. Ambedkar and pointed
out the intention of drafters to include
reasonable restrictions on free speech and
expression through the means of Article 19(2)
without specifically defining the terms like
'defamation', 'public order' etc. and left it to the
courts to decide what would constitute as
restriction and what not so as to not restrict the
meaning of any such term.
The court disregarded the dissection of
rights and their enjoyment under Article 19 and
21 as contested by petitioners while holding that
every citizen enjoys every right under the
constitution simultaneously and took reference
from Sakal Papers (P) Ltd. v. Union of India AIR
1962 SC 305 and the Maneka Gandhi v. Union
of India and another (1978) 1 SCC 248. To
decide upon the constitutionality of Section 499
and its exceptions the bench, while individually
determining each exception and various clauses
in the provision, clearly enunciated that there is
no vagueness in the whole section. The
argument of petitioner over the 'public good', the
court referred the argument as unnecessary and
concluded that what can be termed as a public
good is a subject matter of facts and has to
decide on a case-to-case basis. The court
declared section 499 of IPC, as well as Section
199 of Cr.P.C. constitutional as it being a subject
matter of magistrate to ensure that the judicial
process doesn't become a tool of harassment
and inherent duty of the magistrate to take care
of it and concluded that the judiciary is
independent of the political stigma, therefore,
the arguments of petitioners stand void."
Thus the case filed against the petitioner prima facie has
the following materials on record/evidence.
(a) The petitioner has made imputation concerning the complainant
(by way of letters to persons of authority).
(b) Such imputation has been made by words intended to be read.
(c) Such imputation has been made with the intent to harm and
with knowledge and belief that it will harm the reputation of
the complainant/opposite party.
Accordingly the said materials make out a prima facie case
against the petitioner, to proceed towards trial and this is not a fit case
where the inherent powers of this Court should be exercised.
CRR 3815 of 2019 is dismissed.
There will be no order as to costs.
All connected Application stand disposed of.
Interim order if any stands vacated.
Copy of this judgment be sent to the learned Trial Court
forthwith for necessary compliance.
Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal
formalities.
(Shampa Dutt (Paul), J.)
