Francis Wacziarg vs Rajesh Lajras
2002 Latest Caselaw 857 Del

JUDGMENT

K.S. Gupta, J.

1. In this petition under Section 482 Cr.P.C., the petitioner-accused seeks quashing of complaint case No. 29/2001 and setting aside of judgment dated 30th May 2001 passed in Criminal Revision No. 49/2001 by an Additional Sessions Judge and order dated 2nd June 2001 passed by a Metropolitan Magistrate in the said case.

2. Facts giving rise to this petition, in brief, are these. Respondent-complainant is an employee of Find Agencies Pvt. Ltd., A-58, Nizamuddin East. On 17th January 2000 he filed a complaint under Section 500 IPC against the petitioner who is a director of the company alleging that he was issued a chargesheet dated 22nd November 1999 and therein the petitioner has made defamatory statements against the respondent with intention to harm or knowing or having reasons to believe that such statements will harm his reputation. The chargesheet was got written from someone in Hindi by the petitioner and a copy thereof was also sent to Labour-cum-Conciliation officer. In para No. 12 of the complaint the statements/imputations which are alleged to be defamatory, have been set out as under:-

"Pratisthan ki atithi Miss Agath jo France se aayee aur company ke atithigriah C-38, Nizamuddin East, Nai Dilli me thahari hui thee/dinank 5.9.99 ko karib 12.30 baje app swayan wa aapke sath anya aparichit vyakti atithi ke kamare ke samane baith gaye, tatha anap-shanap baten karane lage/aap sharab ke nashe me the/aapane sharab pi rakhi thee, atithi mahodaya par phabatiya kasani shuru kar di tatha ashlilta par utaru ho gaye, aapaki ashilil harkato se atithi mahodaya bhayabhit ho gayi, tatha dar ke mare unaki mansik sthiti tanavpurn ho gayi/badi mushkil se yuwati ne aapase pichha chhudaya/dinank 5/6 sitambar 1999 ki ratri ko punha sharab ke nashe men madhosh karib 1.00 baje aapne Miss Agath ka darwaja khatkhataya our be wajah jaga diya tatha ashlil harkate karne lage aur batchit karne ke liye dabav dala jabki apaka wa atithi-griha par thahari hui atithi yuvati ka koi sambandha nahi tha/aapne sari ashlilta ki had par karani chahi lekin yuvati ke virodh ke karan aapake dwara keye gaya sare prayas asafal rahen/bhayabhit yuvati ko yah jankari nahi thi ki videsh me isprakar ki paristhitiyo ka mukabala kis prakar kiya jata hai, ka labha uthate buye aapane shararik wa mansik utpidan kiya/aapne yuvati ke bare men yktigat wa pariwa ke sambandh men puchhpanchh karni chai.

Yah ki aapaki uprokt harkat ke karan pratisthan ke man samman pratista me girawat aayi hai/tatha bhavishya ke liye khatara paida ho gaya hai/aapako atithigrah me jane ka koi auchitya nahi tha/aapne yuvati ke man samman ki thes pahuchaya bhavishya men aap anya atithiyo par bhi kar sakate hai chuki aap sharab pine ke aadi ho chuke hai/isake alawa yuvati ke sath ashlil harkat karna tatha shararik wa mansik shoshan darshata hai ki aapake vastav men manasik santulan bighad gaya hai/aapane pratisthan ki chhvi ko kharab kiya hai/is prakar ka karmchari jo ki manochar se vyapti ho pratisthan ke liye khatra paida ho chuka hai....."

3. After considering pre-summoning evidence adduced by the respondent, complaint was dismissed by the order dated 30th January 2001 by a Metropolitan Magistrate seized of the case. Relying on the decision in Balraj Khanna and Ors. v. Moti Ram, , Criminal revision No. 49/2001 taken out against this order by the respondent was accepted by the order dated 30th May 2001 by an Additional Sessions Judge and case was remanded back to the Metropolitan Magistrate to summon the accused if a prima facie case was made out against him. By the order dated 2nd June 2001 the petitioner has been summoned to face trial for the offence under Section 500 IPC by the Metropolitan Magistrate.

4. Submission advanced by Dr. A.M. Singhvi appearing for petitioner was the assuming that the allegations made in chargesheet dated 22nd November 1999 are defamatory, case being covered by Eight Exception to Section 499 IPC, the two orders dated 30th May 2001 and 2nd June 2001 deserve to be set aside the complaint case No. 29/2001 quashed under Section 482 Cr.P.C. In support of submission, reliance was placed particularly to para 7 of the decision in Rajendra Kumar Sitaram Pande and Ors. v. Uttam and Anr., . At the cost of repetition it may be stated that C.R. No. 49/2001 was allowed by the said order dated 30th May 2001 taking note of ratio in the decision in Balraj Khanna's case (supra). Before adverting to the ratio in Rajender Kumar's case (supra) it will be profitable to refer, in brief, the facts and ratio in Balraj Khanna's case. Therein the respondent-complainant during December 1964 was serving as a Liaison officer, MCD and appellants-accused were among the members of Standing Committee of the Corporation at that time. At the instance of appellant No. 1, a meeting of Standing Committee was held on 11th December, 1964 which was attended not only by the Commissioner and other officers of the Corporation but also by Press reporters. In the meeting the appellants allegedly made various serious allegations of defamatory nature against the respondent and passed a unanimous resolution placing him under immediate suspension. Allegation made against the respondent and fact of his suspension were given wide publicity. Respondent filed a complaint under Section 500 IPC against seven appellants before SDM, Delhi. He examined 5 witnesses under Section 202 Cr.P.C. and the SDM after considering the evidence adduced dismissed the complaint under Section 203 Cr.P.C. Revision taken out against this order by the respondent was summarily dismissed by an Additional Sessions Judge. In a petition filed by the respondent, the High Court set aside the order dismissing the complaint under said Section 203 and directed further enquiry to be made into the complaint by the Chief Judicial Magistrate or by any Magistrate subordinate to him and to dispose of the matter in accordance with law. In appeal, by special leave, the Supreme Court observed that an additional reason for dismissing the complaint recorded by the trial Magistrate was that the resolution passed by Standing Committee on 11th December 1964 and discussion preceding it by the members of Standing Committee including the appellants, were covered by Exceptions to Section 499 IPC and the High Court had also touched upon that aspect and made certain observations. While further dealing with that aspect of the matter it was held:-

"In our opinion the question of the application of the Exceptions to Section 499 IPC does not arise at this stage. Rejection of the complaint by the Magistrate on the second ground mentioned above cannot be sustained. It was also unnecessary for the High Court to have considered this aspect and differ from the trial Magistrate. It is needless to state that the question of applicability of the Exceptions to Section 499 IPC as well as other defenses that may be available to the appellants will have to be gone into during the trial of the complaint."

(emphasis supplied)

5. Ultimately, upholding the judgment of the High Court the appeal was dismissed.

6. Coming to Rajinder Kumar's, case a complaint was filed, inter alia, alleging that the accused persons made a false complaint to the Treasury officer, Amrawati that the complainant had come to the office in drunken state and abused the Treasury officer and thereby they had committed offence punishable under Section 500 read with Section 34 IPC. The Magistrate postponed the issue of process and directed the Treasury officer to submit a report under Sub-section (1) of Section 202 Cr.P.C. After receipt of report, on being satisfied that sufficient material existed for issuance of process against the accused under Section 500 read with Section 34 IPC, the summoning order was made on 16th August 1991. This order was set aside in a revision by a Sessions Judge holding that the case was covered by Eight Exception to Section 499 IPC. On High Court in its jurisdiction under Section 482 Cr.P.C. being moved by the complainant, it set aside the order of Sessions Judge concluding that the order directing issuance of process being an interlocutory order, Sessions Judge did not have jurisdiction under Section 397 Cr.P.C. to interfere with the same. In appeal by the accused, two points were canvassed before the Apex court-(i) order of issuing process could not be held to be said that, prima facie, case existed for trial as Exception Eight to Section 499 clearly applied to the facts of the case. On point (i) it was held that it would not be appropriate to hold that an order directing issuance of process was purely interlocutory and, therefore, bare under Sub-section (2) of Section 397 will apply. Point (ii) was dealt with in Para No. 7 of the decision as under:-

"The next question that arises for consideration is whether reading the complaint and the report of the Treasury officer which was obtained pursuant to the Order of the Magistrate under Sub-section (1) of Section 201 can it be said that a prima facie case exist for trial or exception 8 to Section 499 clearly applies and consequently in such a case, calling upon the accused to face trial would be a traversity of justice. The graveness of the allegations in the complaint petition is that the accused persons made a complaint to the Treasury Officer, Amravati, containing false imputations to the effect that the complainant had came to the office in a drunken state and abused the Treasury Officer, Additional Treasury Officer and the Collector and circulated in the office in the filthy language and such imputations had been made with the intention to cause damage to the reputation and services of the complainant. In order to decide the correctness of this averment, the Magistrate instead of issuing process had called upon the Treasury officer to hold inquiry and submit a report and the said Treasury officer did submit a report to the Magistrate. The question for consideration is whether the allegations in the complaint read with the report of the Magistrate make out the offence under Section 500 or not. Section 499 of the Indian Penal Code defines the offence of defamation and Section 500 provides the punishment for such offence. Exception 8 to Section 499 clearly indicates that it is not a defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with regard to the subject matter of accusation. The report of the Treasury officer clearly indicates that pursuant to the report made by the accused persons against the complainant, a departmental inquiry had been initiated and the complainant was found to be guilty. Under such circumstances the fact that the accused persons had made a report to the superior officer of the complainant alleging that he had abused the Treasury officer in a drunken state which is the gravemen of the present complaint and nothing more, would be covered by exception 8 to Section 499 of the Indian Penal Code. By perusing the allegations made in the complaint petition, we are also satisfied that no case of defamation has been made out. In this view of the matter, requiring the accused persons to face trial or even to approach the Magistrate afresh for reconsideration of the question of issuance of process would not be in the interest of justice. On the other hand in our consideration opinion this is a fit case for quashing the order of issuance of process and the proceedings itself. We, therefore, set aside the impugned order of the High Court and confirm the order of the learned Sessions Judge and quash the criminal proceeding itself. This appeal is allowed."

7. It may be noticed that case was held to be covered by Exception Eight to Section 499 IPC taking note of Treasury officer's report, in particular, which indicated that pursuant to the report made by accused persons a departmental enquiry was initiated and the complainant was found guilty therein. Obviously, Rajendra Kumar's case (supra) is distinguishable on facts and has no applicability to this case. Moreover, Balraj Khanna's case states the law more elaborately and accurately in regard to applicability of the Exceptions to Section 499 IPC and has, thus, to be followed while deciding this petition. To be noted that both the decisions were rendered by Benches of equal strength. (See: Amar Singh Yadav and Anr. v. Shanti Devi and Ors., ; Ganga Saran v. Civil Judge, Hapur, Ghaziabad and Ors., and Bholanath Karmakar and Ors. v. Madanmohan Karmakar and Ors., AIR 1988 Calcutta 1). Applying the ratio in Balraj Khanna's case the question of applicability of Eight Exception to Section 499 Cr.P.C. cannot be examined at the threshold of the case and will have to be gone into during the trial in the complaint. None of aforesaid two orders can be set aside and complaint quashed at this stage.

8. Consequently, the petition is dismissed being without any merit.