Vinay Ganapati vs State & Ors.
2012 Latest Caselaw 565 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                            Crl. MC 4066/2011

                                                  Date of Decision: 27.01.2012
Vijay Ganapati                                              ...... Petitioner
                             Through:      Mr.Subro Sanyal and Mr. Rajiv
                                           Kuamr, Advocates

                                      Versus

State & Ors.                                           ...... Respondents
                             Through:      Ms.Fizani Husain, APP for State


CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA


M.L. MEHTA, J. (Oral)

Crl.MA 1161/2012 (exemption)

1. Exemption allowed subject to all just exceptions.

Crl.MA 1160/2012 (restoration)

1. This is an application for restoration of the petition which was dismissed for non-prosecution on 13.01.2011.

For the reasons set out in the therein, the application is allowed and the instant petition is hereby restored to its original number.

The application stands disposed of.

Crl.MC 4066/2011

1. This is a petition under Section 482 Cr.PC impugning an order dated 8.4.2011 passed by learned Special Judge, New Delhi whereby he dismissed the revision petition of the petitioner against the order dated 5.4.2010 passed by

learned Metropolitan Magistrate, Delhi.

2. The petitioner has filed a complaint under Sections 499, 500, 109 read with Section 120B IPC against the respondent before the learned MM. The learned MM dismissed the said complaint vide his order dated 5.4.2010 which was upheld by the learned ASJ in a revision petition vide the impugned order. The said complaint of the petitioner was on the averments that he being a member of Delhi Gymkhana Club (DGC) was entitled to all the privileges and facilities of Secunderabad Club, affiliated club, on reciprocal arrangements. It was alleged that the petitioner visited Sikandrabad Club and respondents no.3 and 4 had sent two defamatory letters dated 7.12.2007 and 21.10.2008 to DGC regarding his conduct, dress appearance and body language. It was alleged that the motive and purpose of the respondents was to maliciously spread innuendo and imputation bearing on the reputation of the petitioner. It was further alleged that on being given copies of the said letter by DGC, he replied the same on 21.1.2008 to Secunderabad Club. It was alleged that respondents no.1 and 2 along with other respondents have caused and instructed the club staff to harass him whenever he visited that club and instructed them to slender and humiliate him. The petitioner in support of his complaint examined himself as his witness and exhibited those letters Ex.P1 and P3.

3. The learned trial court after going through those letters and the deposition of the petitioner did not find sufficient material against the respondents and held the aforesaid letters as in the form of complaint against the petitioner to the Secretary, DGC in their official capacity and, therefore, the said complaint filed by the petitioner falls under Eighth Exception to Section 499 IPC. The revisional court of learned Special Judge, did not find any infirmity in the said order of learned MM dated 5.4.2010 and dismissed the

revision petition of the petitioner vide the impugned order.

4. Having gone through the impugned judgment dated 8.4.2011 as passed by the learned Special Judge in the revision petition preferred by the petitioner as also the averments made in the present petition and after hearing the learned counsel for the petitioner, it was at the outset noted that the pleas which have been taken by the petitioner are apparently nothing, but the same which were taken before the revisional court of learned Special Judge. The present petition under Section 482 Cr.PC is apparently seen to be nothing but a second revision against the order of learned MM. Even the reliefs that were sought were seeking directions to the learned MM to hold further enquiry in the complaint that was filed by the petitioner under Section 499, 500, 109 read with Section 120B IPC. The combined effect of Section 397 (2) Cr.PC and Section 482 Cr.P.C has been discussed in various cases. The Supreme Court in Madhu Limaye v State of Maharashtra [(1977) 4 SCC 551], observed as under:-

"On a plain reading of section 482 it would follow that nothing in the code which would include section 397(2) shall be deemed to limit or affect the inherent powers of the High Court. However, it cannot be said that the said bar is not to operate in the exercise of the inherent power at all because it would be setting at naught one of the limitation imposed upon the exercise of revisional powers. A happy and harmonious solution would be to say that the bar provided in section 397(2) operates only in, exercise of the revisional power of the High Court meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. The inherent power would come into play there being no other provision in the code for the redress of the grievance of the aggrieved party. in case the impugned order brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in section 397(2) can limit of affect the exercise of the inherent power by the High Court. Such cases would be few and far between. The High Court must exercise the inherent power very sparingly."

5. This petition does not satisfy the above parameters which are available for exercising inherent powers by this Court under Section 482 Cr.PC.

6. In any case, on merits also, the instant petition does not call for any interference by this Court under Section 482 Cr.PC. Both the courts below have discussed the contents of the complaint as also the deposition of complainant and as a matter of fact have recorded that no case at all was made out against the respondents no. 2 to 12 herein under Section 500 IPC. It is settled law that the order of taking cognizance and also summoning of the accused persons is not to be passed by the Magistrates mechanically just on the asking of the complainant, but has to be passed after due application of mind, after going through the complaint and the evidence that was available on record.

7. It is settled law that summoning of a person in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course. The order of a Magistrate summoning a person must reflect that he has applied his mind to the facts of the case as well as law applicable thereto and he has to examine the nature of allegations made in the complaint and the evidence both oral as well as documentary in support thereof. It is not that the Magistrate has to act as a silent spectator. When there was no case made out against accused persons (who are the respondents herein) they cannot be made to undergo the agony of criminal trial on just vague and unsubstantiated allegations. Sikandrabad Club was within its right to seek clarification from DGC the parent club about the conduct and behavior of the petitioner. The letters were written by the Secretary of Sikandarabad Club in his official capacity complaining about the behavior of the petitioner to the Secretary DJC of which the petitioner was a member and by virtue of which he had availed the facilities of Sikandrabad Club. The said letters were written by respondents to a person having authority over the petitioner so far as user of the services of the club was concerned. There are no allegations of any malafide of the respondents in

writing such letters. There was no enmity as well with the petitioner. If the conduct, behavior and dress appearance of a person is not appropriate or is objectionable then he cannot have any grievance if the same is reported in good faith to the person having lawful authority over him. Such reporting was also in the interest of DGC as well as for the public good and was thus within the Eighth, Ninth and Tenth Exception to Section 499 IPC.

8. Having regard to the foregoing facts and circumstances and settled legal position, this petition is not maintainable and the same is hereby dismissed with costs of Rs.5,000/- to be deposited with Delhi High Court Legal Services Committee within a week.

M.L. MEHTA (JUDGE) January 27, 2012/rd