Arundhati Sapru vs Yash Mehra
2013 Latest Caselaw 5162 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI


                         DATE OF DECISION: 12th NOVEMBER, 2013


+    CRL.M.C. 581/2013 and Crl. M.A. 1887/2013 (for stay)

     ARUNDHATI SAPRU                                      ..... Petitioner
                 Through:           Ms. Nisha Narayanan, Advocate with
                                    petitioner in person.

                         versus

     YASH MEHRA                                         ..... Respondent
                         Through:   Mr. Probhjit Johar and Mr. Ashish
                                    Aggarwal, Advocates with respondent
                                    in person.
     CORAM:
     HON'BLE MS. JUSTICE SUNITA GUPTA

                         JUDGMENT

: SUNITA GUPTA, J.

1. This is a petition under Section 482 of Code of Criminal

Procedure, 1973 (for short „Cr.P.C.) for quashing of proceedings in

Complaint Case No. 69/1 titled as Yash Mehra v. Arundhati Sapru

under Section 200 of Cr.P.C. for offence under Section 500 of the

Indian Penal Code, 1860 (for short „IPC‟) pending in the Court of

learned Metropolitan Magistrate, New Delhi.

2. The brief facts leading to the filing of the present petition are that

the respondent herein filed a complaint under Section 200 Cr.P.C. for

offence under Section 500 IPC alleging inter alia that accused and

complainant got married on 12th July, 2011 according to Hindu rites

and customs and several cases are pending between them in different

Courts. Prior to the marriage with accused, the accused was married to

Ms. Divya Mehra who expired on 11th June, 2000 and after her demise

complainant got married to the accused. During subsistence of first

marriage of the complainant with Ms. Divya Mehra, both of them

adopted a son, namely, Pranav. Earlier divorce case pending between

the complainant and accused was being heard by the Court of Sh. T.S.

Kashyap, learned Additional District Judge wherein accused filed an

application under Section 24 of the Hindu Marriage Act, 1955 for grant

of maintenance which was dismissed vide order dated 31 st July, 2006.

After the marriage of the accused with the complainant, accused has

been making false allegations against Divya Mehra that she has

physical affinities and relationship with people other than complainant.

The aforesaid false allegations, regarding Divya Mehra having physical

affinities, were made by the accused in front of various relatives and

friends followed by an e-mail dated 30th July, 2010 containing remarks

to various persons including Hon‟ble Supreme Court of India, National

Commission for Women, Mr. V. Moily (former Law Minister of India),

various Ministers, Mr. Ashwani Kumar, U.S. Ambassador/ACS Chief

and Mr. Satish Tamta and Mr. Mrigank Dutta. The contents of the

remarks made by the accused in the said e-mail dated 30th July, 2010

were reproduced as follows:

"Further T.S. Kashyap dismissal of the 2005 HMA, 24 application in the lower court was timed with Kaul‟s impending upholding of the mutual consent divorce in the high court in 2006. At that time I was aware that it was dragged out on purpose and that it was also because of his personal hatred for me due to his physical affinities with Yash Mehras first wife and adopted son."

3. It was alleged that the first wife of the complainant Ms. Divya

Mehra was a business women and was known well in her circle,

respectable lady of the society, was carrying good reputation amongst

her relatives and in the society. The complainant had very good

relations with his first wife and was emotionally, sentimentally and

psychologically attached to her. The aforesaid remarks made by the

accused against late Ms. Divya Mehra are false, baseless and highly

defamatory, inasmuch as, she has no physical affinity with anybody

except the complainant. The aforesaid allegations and remarks have

been made by the accused with the intention to defame Ms. Divya

Mehra and the complainant as well as to hurt the feelings of

complainant as he was quite attached to his first wife and held her in

very high esteem. Because of the defamatory and derogatory remarks

made by the accused, complainant as well as late Ms. Divya Mehra,

have suffered in their reputation and both of them have been lowered in

the estimation of their relatives, friends and general public. A legal

notice dated 1st October, 2011 was sent to the accused calling upon her

to pay a sum of Rs.30,00,000/- as damages and unconditional apology

for defaming late Ms. Divya Mehra and complainant and severely

hurting the feelings of the complainant. The respondent/complainant

examined himself in pre-summoning evidence and reiterated the

averments made in the complaint. He also proved e-mail Ex-CW1/A

sent to various authorities mentioned in the complaint. He further

deposed that because of defamatory and derogatory remarks made by

the accused he and his deceased wife Ms. Divya Mehra have suffered

in their reputation and both have been lowered in estimation of their

relatives, friends and general public because a few of his relatives and

friends started believing the allegations made by the accused.

4. Vide impugned order dated 27th August, 2012 learned

Metropolitan Magistrate observed that from the testimony of the

complainant and the material on record, prima facie a case under

Section 500 IPC is disclosed against the accused and accordingly she

was ordered to be summoned.

5. This order has been assailed by the petitioner by filing this

petition primarily on the ground that for the offence of defamation to

be made out, it has to be shown that the alleged remarks had lowered

the reputation of the petitioner in the eyes of the relatives/public. The

petitioner has not examined anybody, except himself, in the pre-

summoning evidence, as such, he has failed to prima facie make out

any case under Section 500 IPC. Reliance was placed on Explanation

4 of Section 499 IPC. Reliance was also placed on M/s Pepsi Foods v.

Special Judicial Magistrates in order to show that summoning in a

criminal case is a serious matter. Criminal law cannot be set into

motion as a matter of course. The impugned order is bad in law and

therefore needs to be set aside.

6. I have heard Ms. Nisha Narayanan, learned counsel appearing

for the petitioner and Mr. Probhjit Johar, learned counsel appearing for

the respondent and have perused the record.

7. Learned counsel for the petitioner submitted that except for

examining himself, complainant has not examined anybody else in

order to prove that his reputation or that of his deceased wife has been

lowered in the eyes of anybody. That being so, no offence under

Section 500 IP is made out, and complaint is liable to be quashed.

Reliance was placed on Prof. Imtiaz Ahmad v. Durdana Zamir in I.A.

No.10367/2007 in CS(OS) No. 569/2006.

8. Per contra, it was submitted by learned counsel for the

respondent that the allegations made by the petitioner are per se

defamatory in nature. The same has been published and circulated to

various authorities by e-mail and it clearly lowers the reputation of the

deceased wife in front of the public at large and simultaneously hurting

the sentiments of the respondent/complainant thus making out a case of

defamation. Examining of friends or relatives was not a condition

precedent for issue of summoning order qua the petitioner. The

offence of defamation committed by the petitioner is writ large and

whether the petitioner is entitled to the benefit as envisaged in

Exceptions 8 and 9 of Section 499 would be a matter of trial and cannot

be agitated upon in the present quashing petition. At the stage of pre-

summoning evidence only a prima facie case is to be made out by the

respondent/complainant which has been done by the respondent that is

why learned Trial Court has summoned the petitioner as an accused.

The impugned order does not suffer from any infirmity which calls for

interference. Reliance was placed on M.A. Rumugam v. Kittu @

Krishnamoorthy and others (2009) 1 SCC 101; M.K. Prabhakaran

and anr. v. T.E. Gangadharan and anr. (2006) Crl. L.J. 1872, Sanjay

Mishra v. Govt. of NCT of Delhi 2012 Laws (DLH)-3-201; M.P.

Singh Sahni v. State and ors. in Crl. M.C. 3773/2003 and Pat Sharpe

V. Dwijendra Nath Bose 1964(1) Cri. L.J. 367.

9. I have given my considerable thoughts to the respective

submissions of learned counsel for the parties and have perused the

record.

10. The criminal law on defamation has been codified and is

contained in section 499 to 502 of the Indian Penal Code. For an

offence of defamation as defined under section 499 IPC, three essential

ingredients are required, to be fulfilled as laid down in the case of

Standard Chartered Bank v. Vinay Kumar Sood, 2010 CriL.J

1277:-

i. Making or publishing any imputation concerning any person;

ii. Such imputation must have been made by words either spoken or intended to be read or by signs or by visible representations.

iii. The said imputation must have been made with the intention to harm or with knowledge or having reason to believe that it will harm the reputation of the person concerned".

11. Thus, it is clear that the mens rea to cause harm is the most

essential sine qua non for an offence under section 499 IPC. To

constitute "defamation" under Section 499 of the IPC, there must be an

imputation and such imputation must have been made with intention of

harming or knowing or having reason to believe that it will harm the

reputation of the person about whom it is made. In essence, the offence

of defamation is the harm caused to the reputation of a person. It would

be sufficient to show that the accused intended or knew or had reason

to believe that the imputation made by him would harm the reputation

of the complainant, irrespective of whether the complainant actually

suffered directly or indirectly from the imputation alleged. An offence

punishable under section 500 IPC requires blameworthy mind and is

not a statutory offence requiring no mens rea.

12. A perusal of contents of the e-mail dated 30th July, 2010 show

that the same are per se defamatory. It is not disputed by the petitioner

that the e-mail dated 30th July, 2010 was not sent by her to various

authorities which contained defamatory allegations not only against the

respondent/complainant but also against his deceased wife. Further,

the e-mail has been sent to various authorities including Hon‟ble

Supreme Court of India, National Commission for Women, Mr. V.

Moily (former Law Minister of India), various Ministers, Mr. Ashwani

Kumar, U.S. Ambassador/ACS Chief and others. Same is to be taken

as published. In M.K. Prabhakaran (supra) the allegations made in the

written statement filed in the Court of law; in M.A. Rumugam (supra)

the allegations published in various newspapers containing defamatory

allegations; in M.P. Singh Sahni (supra) derogatory and un-

parliamentary language used in fax message sent by the accused

installed at the residence of the tenant; in Sanjay Mishra (supra) the

allegations made in the replication and additional submissions in the

divorce proceedings were held to be publication containing defamatory

allegations and petition for quashing was dismissed.

13. The only plea taken by the petitioner is that except for

examining himself, the complainant has not examined any other person

to prove that in fact the reputation of the complainant and his wife has

been actually lowered in the eyes of his relatives, friends and general

public. It is suffice to say that only pre-summoning evidence has been

led by the complainant and even at that juncture the complainant has

deposed that the allegations made by the petitioner has actually

lowered, not only his, but also his wife‟s reputation and estimation in

the eyes of his relatives, friends and general public and also hurt his

feelings. Moreover, the question as to whether or not the remarks

actually lowered the reputation of the respondent or his wife in the

eyes of his relatives and general public is a question of fact which can

be decided only after trial of the case. The case cannot be thrown out

at its threshold when there is enough evidence pointing out towards

prima facie offence made by the petitioner. Similar issue was raised in

M.N. Damani v. S.K. Sinha AIR 2001 SC 2037. In this case the

petitioner had gone in appeal against the order of High Court quashing

the criminal complaint filed by the petitioner under Sections 500, 499

IPC. Allowing the appeal, the Apex Court opined that the High Court

at preliminary stage cannot say that there was no reasonable prospect

of conviction resulting in the case after trial. It was held that questions

as to whether the imputations were made in good faith, in what

circumstances, with what intention, etc. are to be examined on the

basis of evidence in trial. It was further held that quashing of

complaint at preliminary stage is not proper, when from the sworn

statements and documents produced by the petitioner a prima facie

case can be said to have been made out against the respondent.

Similarly in M.A. Rumugam (supra) application for quashing

complaint petition filed by the respondent against the appellant under

Section 500 IPC was dismissed by the High Court. Matter went to

Supreme Court and it was observed that the allegations made in the

complaint make out a case for proceeding against the appellant under

Section 500 IPC. It would be premature for the High Court to consider

the material placed on record by the appellant so as to arrive at a

definite conclusion that there was no element of bad faith on the part of

the appellant in making the said complaint before the police

authorities. Question as to whether a totally false complaint has been

made as against the respondent or not as he was not even in India prior

to the date of occurrence is required to be gone into by the learned

Trial Judge. No inference was called for.

14. I have gone through the order passed in Prof. Imtiaz Ahmad

(supra) relied upon by learned counsel for the petitioner. In that case

defendant had filed a complaint before Crime Against Women Cell

alleging that the plaintiff (in that case) along with others had

considerable influence in her in-law‟s house and it was requested that

there be no interference in her family affairs by the plaintiff and his

wife. The plaintiff filed a suit for damages alleging that the allegations

made in the complaint amounted to his defamation and he was entitled

to damages. Defendant filed an application under Order VII Rule 11

CPC stating that the plaint does not disclose any cause of action and

was liable to be dismissed. It was observed that the imputation were

not defamatory in nature. Moreover, the defendant had a right to make

complaints of her grievances to the authorities. Whenever a person

makes a complaint against someone to the lawful authorities and in the

complaint he makes imputations against the person complained of, it

cannot be considered that the person has publicized or publicly made

defamatory averments against a person. If a prosecution is initiated

against the person on the basis of such averments and the person is

acquitted holding that the complaint was false, then only a cause of

action arises against the complainant for launching a case for false

prosecution or for damages on other grounds. Until and unless a

competent Court holds that complaint was false, no cause of action

arises. Approaching a competent authority and praying that the

authority should come to the rescue of the complainant and prevent

inference of the plaintiff in the family affairs of the defendant cannot

amount to a defamatory imputation per se and even if it is published, it

does not tend to show that the defendant had intended to lower the

reputation of the plaintiff. Therefore, since the plaint did not disclosed

any cause of action against the plaintiff as such the suit was dismissed.

15. The factual matrix of the present case is entirely different,

inasmuch as, as stated above the petitioner neither challenged that the

e-mail was sent by her to various authorities which contained

defamatory allegations. Moreover, for criminal purposes "publication"

has a wider meaning than it has in civil law, since it includes a

communication to the person defamed alone. The prosecution for

defamation in criminal cases can be brought although the only

publication is to the person defamed as it is very likely to provoke a

breach between the persons involved. In the instant case the

publication is not confined to the complainant but to the public at

large. Secondly, it cannot be said that there was no publication of

defamatory statement made by the petitioner.

16. Moreover, the powers of High Court under Section 482 Cr.P.C.

are to be exercised sparingly and not as a matter of routine.

Undoubtedly, the High Court possesses inherent powers under Section

482 of the Code of Criminal Procedure. These inherent powers of the

High Court are meant to act ex debito justitiae to do real and

substantial justice, for the administration of which alone it exists, or to

prevent abuse of the process of the court. Inherent power under Section

482 Cr.P.C. can be exercised in following category of cases:

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court, and

(iii) to otherwise secure the ends of justice.

17. This Court time and again has observed that the extraordinary

power under Section 482, Cr.P.C. should be exercised sparingly and

with great care and caution. The court would be justified in exercising

the power when it is imperative to exercise the power in order to

prevent injustice.

18. In R.P. Kapur v. State of Punjab 1960 Cri. L.J. 1239, Hon‟ble

Supreme Court summarized some categories of cases where inherent

power can and should be exercised to quash the proceedings:

(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;

(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

19. In another leading case State of Haryana and Ors. v. Bhajan

Lal 1992 SCC (Cri) 426, Supreme Court in the backdrop of

interpretation of various relevant provisions of the Cr.P.C. under

Chapter XIV and of the principles of law enunciated by the Court in a

series of decisions relating to the exercise of the extraordinary power

under Article 226 of the Constitution of India or the inherent powers

under Section 482 Cr.P.C. gave the following categories of cases by

way of illustration wherein such power could be exercised either to

prevent abuse of the process of the court or otherwise to secure the

ends of justice. Thus, it was made clear that it may not be possible to

lay down any precise, clearly defined and sufficiently channelised and

inflexible guidelines or rigid formulae and to give an exhaustive list to

myriad kinds of cases wherein such power should be exercised:

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 1 56(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of

which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

20. Again in Janata Dal v. H. S. Chowdhary and Ors. (1992) 4

SCC 305 Supreme Court observed in what circumstances the inherent

powers should be exercised:

"132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles."

21. In the light of above judicial pronouncements and keeping in

view the facts and circumstances of the case, I do not find any illegality

or infirmity in the order of the learned Trial Court and the proceeding

of criminal complaint against the petitioner.

The petition and the application being devoid of merit is hereby

dismissed.

SUNITA GUPTA (JUDGE) NOVEMBER 12, 2013 AK