Page No.# 1/14 vs The State Of Assam And Anr
2025 Latest Caselaw 2073 Gua

Gauhati High Court

Page No.# 1/14 vs The State Of Assam And Anr on 20 January, 2025

                                                                         Page No.# 1/14

GAHC010182022018




                                                                   2025:GAU-AS:466

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Crl.Pet./818/2018

            DURLABH SAIKIA
            S/O LT. PURNA CHANDRA SAIKIA
            R/O MEGHAMALLAR RAJ ENCLAVE 1ST BUILDING, 1ST FLOOR,
            CHANDAN NAGAR, GUWAHATI-28, UNDER DISPUR POLICE STATION, IN
            THE DIST OF KAMRUP (M), ASSAM.

            VERSUS

            THE STATE OF ASSAM AND ANR.
            REP. BY PP, ASSAM

            2:LT. COL (RETD.) SITA SHARANI DIKSHIT
             R/O MEGHMALLAR RAJ ENCLAVE 1ST BUILDING
             1ST FLOOR
              CHANDAN NAGAR
             GUWAHATI-28
             UNDER DISPUR POLICE STATION IN THE DIST. OF KAMRUP (M)
            ASSA

Advocate for the Petitioner   : MR D TALUKDAR, MS. R GOGOI,MR P CHOUDHURY

Advocate for the Respondent : PP, ASSAM, MR. B CHOWDHURY (R2)




                                  BEFORE
                 HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

                                        JUDGMENT

Date : 20-01-2025

1. Heard Mr. D Talukdar, learned counsel for the petitioner. Also heard Mr. P Borthakur, learned Addl. PP, Assam appearing for Page No.# 2/14

respondent No.1 and Mr. B Chowdhury, learned counsel for the respondent No.2.

2. The present petition is filed under section 482 Cr.P.C for

quashing the complaint petition registered as CR Case No.145 c/2018, filed by the respondent No.2, alleging commission of offence under section 499/500 IPC. The further challenge is an order dated 20.01.2018, passed by the learned SDJM, No.2, Kamrup (M), Guwahati, whereby the cognizance of offence under section 500 IPC was taken.

3. Before dealing with the arguments advanced by the learned counsel for the parties, let this court first record the important statements made in the complaint which are to the following effect:

i. The complainant is a retired army officer having reputation in the society inasmuch as he served the nation with his best effort and got retired from his service as Lieutenant Colonel in the year 1995. He has respectable family background and most of the family members including the complainant dedicated their lives to serve the nation and the complainant has also well name and fame in the entire society.

ii. The complainant is a resident of Meghmallar Raj Enclave, more particularly of Space No.002/B. For convenience to inform all matters in respect of the matters of the Raj Enclave Society (residents), a Whatsapp group namely, Raj Enclave Society was created, wherein the Page No.# 3/14

Whatsapp contact of members/owners of flats were added by the accused i.e., the Secretary and accordingly the complainant was also added to the said group. iii. The complainant was elected as President of the working committee of the society and after becoming president, he noticed that some irregularities were going on and he tried to prevent it, but the accused being Secretary did not want to accept and follow the due proposal and advice of the complainant and started to do all works at his own will and decision.

iv. When the complainant tried to stop the secretary and raised objection, the accused secretary submitted his resignation to the committee and asked him to release from the charge of Secretary of the committee.

v. A meeting was called by the complainant and the general body of the committee took a resolution that that one Mr. Amrit Goswami shall take charge as the Working President of the working committee and the accused secretary need not resign. According to the complainant, such course of action was taken to dilute the authority and interference of the complainant as President and to enable the accused Secretary to work independently under Working President. vi. It was further stated in the complaint that the complainant being President had no knowledge about the actions, expenditure incurred and it was controlled by the accused and the Working President and the complainant was Page No.# 4/14

asked only to sign the banking documents or similar papers as President.

vii. According to the complainant, in the meantime, some conflicts arose regarding parking etc. in the society, which developed day by day and took an ugly turn between the working committee's secretary and other members of the society and the situation of the society became worse and anarchic. Accordingly, to save his dignity, the complainant decided to resign from the post of President and membership of the working committee and accordingly he put his paper on 11.08.2017.

viii. Thereafter the General Body of the society formed a new committee, where the accused was again selected as Secretary of the society. According to the complainant, though he made some request but he was not removed from the Whatsapp group and the complainant had been receiving messages and information of the society through the group account.

ix. On 22.08.2017, one resident called the complainant and informed him to check the society's Whatsapp group and also told that the accused had posted some defamatory language against the complainant and after going through the chats, the following message was seen:

"YOU ARE MOST WELCOME TO DISCUSS, BUT I HAVE LOST INTEREST SEEING THE SELFISH INTEREST OF ALL. HENCE REQUESTED TO DECIDE REPLACEMENT .....10.59 PM.

BUT DEFINETELY BUSTARD DIKSHIT HAS TO NAME AND Page No.# 5/14

PROVE IT ..... AND I WILL REFRAIN FROM PAYING SUBSCRIPTION .....11.01 PM".

x. After the said message, the complainant initially did not mind and take it so seriously and was busy with his regular routine works. However, on 03.12.2017, an incident took place where the accused attempted to assault the complainant in front of many of the members of the society without any reason and accordingly the complainant lodged an FIR before the Dispur police station, which was registered as Dispur PS Case No.3294/2017 under section 294/506/34 IPC and the accused was released on bail.

xi. At paragraph 16 of the complaint, the primary allegation is stated, which goes to show that on 02.01.2018, the complainant could learn that some residents of the building society are involved in discussing about the Whatsapp message, which was posted by the accused on 22.08.2017 and these members are now starting to comment and discussing amongst themselves about the said message and accordingly, the said message has completely damaged the status of the complainant in his old age, by which the complainant realized that the said message has been in knowledge of every member of the society that the accused used the word "Bustard Dikshit" in his post. According to him, by such message the accused has directly attacked on the image, reputation, honour and dignity of the complainant in the society and the accused with a malicious intention has willfully used such defamatory words in his message by Page No.# 6/14

sending the same to the entire society of the building. According to the complaint, such message was not only spread within the society but also to their relatives, family and friends of the complainant, for which the complainant has been suffering mental harassment. The complainant was awaiting for some time for any self realization, acceptance of guilt or any apology from the accused, but when nothing was forthcoming, he filed the complaint petition.

4. The complainant was examined by the learned Magistrate under section 200/202 Cr.P.C before issuing process. The statement of the complainant recorded by the Magistrate is quoted herein below:

"I am a retired officer. I am an engineer by profession. Presently I have a small construction business.

I had purchased a flat in Meghmallar Apartment. After purchasing the flat, I became the owner.

There was a society in the Apartment. Since I was a tenant, I was not a member, but after purchasing the flat, I became the president of that Society.

There were several financial and administrative problems which I tried to sort out, some of the members particularly Durlabh Saikia, Secretary did not like my steps. He wanted to work independently. So he resigned from his post. I called a general body meeting and a new Working President was selected. I accepted the decision and stopped interfering. Thereafter, some incident occurred and the society sent those people directly to me without sorting out their issues. Situatin worsened and I resigned.

A new committee was formed. The secretary Durlabh Saikia formed a Whatsapp group. I was also made a member of that group. Durlabh Saikia abused me on whatsapp using obscene language. Due to such defamatory message, my reputation has Page No.# 7/14

been hampered and I am suffering from a lot of mental stress. My social reputation has been very badly impacted."

5. Referring to the complaint petition, more particularly, paragraph 16 and the statement of the complainant recorded, Mr. D Talukdar, learned counsel for the petitioner argues that no case under section 500 IPC is made out inasmuch as the allegation is a result of the internal dispute in the society and nowhere relates to any offence of defamation.

6. According to him, the complainant has failed to bring any material during the examination under section 200/202 Cr.P.C to suggest that the message allegedly sent by the accused has harmed the reputation of the complainant in the eyes and esteems of any other person, nor the complainant could specifically state that any of the person has informed him that their estimation of the complainant has gone down before them after reading of the message. Therefore, according to the learned counsel for the petitioner in terms of explanation 4 of to the section 499 IPC, no case is made out either from the reading of the complaint as well as from the deposition made by the complainant.

7. It is further contended by Mr. Talukdar that if the entire facts narrated in the complaint as well as the deposition made by the complainant, are taken in its face value, then also no case under section 500 IPC is made out.

8. Per contra, the learned counsel for the respondent No.2 argues that the petitioner is having a good reputation and such reputation has been infringed by the action of the petitioner/ accused Page No.# 8/14

and there are specific averments in the petition that he has been defamed by the action of the accused person and therefore this is not a fit case where this court should exercise its extraordinary power under Section 482 Cr.P.C.

9. According to the learned counsel for the respondent No.2, this court generally should exercise its power under Section 482 Cr.P.C. in rarest of the rare cases and in explanational circumstances. According to him, in the case in hand a bare reading of the complaint as well as the statement of the witnesses recorded clearly discloses that an offence under Section 500 IPC is made out.

10. According to the learned counsel whether the complainant has actually been defamed or not is to be proved during the trial and during trial, he will be able to examine further witnesses, on the basis of which the offence can be established. Therefore, at this initial stage of prosecution, this court may not exercise its extraordinary power by interfering with the prosecution.

11. This Court has given anxious consideration to the arguments advanced. Also perused the record including the Complaint and depositions of the witnesses, examined under section 200/202 Cr.P.C.

12. An offence under Section 499 IPC is committed, when reputation of a person is harmed, either by word or by signs or by visible representation etc. The aforesaid provision further explains that an imputation of a person can be said to be harmed, when such reputation is harmed directly or indirectly in the estimation of others and such imputation must also directly or indirectly lower the moral Page No.# 9/14

and intellectual character of that person who is alleged to be defamed.

13. It is clear that Section 499 IPC presupposes "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 cases hereinafter expected, to defame that person."

14. Thus the words "knowing or having reason to believe" and "intending to harm" carry significant meaning.

15. Further, Explanation 4 of Section 499 IPC clarifies that "no imputation is said to have harmed 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 his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful."

16. Therefore the aforesaid explanation imposes a restriction and puts a qualification on the defamation. Thus imputations shall be punishable when it lower a person's reputation in respect of some aspects of his personality and makes an imputation, which is defamatory, only if it lowers the estimation of others which reputation is held by others.

17. It is by now well settled that every men has the right to have his reputation preserved and it is also true that right of Page No.# 10/14

reputation is acknowledged as an inherent personal right of every person. However, for taking cognizance of the offence under Section 499 IPC, the complainant is to prima-facie show that defamatory statement has been made or published and it tends to lower the estimation of the person defamed in the minds of right thinking member of the society in general. It is also equally well settled that to find out whether the statement is a defamatory statement or not, the court is to take note of the entire statements made in the complaint.

18. The Hon'ble Apex Court in the case of M/s Iveco Magirus Brandschutztechnik vs. Nirmal Kishore Bharatia reported in (2024) 2 SCC 86, after dealing elaborately with the earlier decisions of the Hon'ble Apex Court, dealing with the offences under Section 499 IPC had laid down certain principles of law, which can be summarized as follows:

i. Magistrate taking cognizance of an offence proceed under Section 200 Cr.P.C. based on a prima-facie satisfaction that the criminal offence is made out. He is required to satisfy himself by looking into the allegation leveled in the complaint, the statement made by the complainant in support of the complaint, the documentary evidence in support of the allegation, if any produced by him as well as the statement of any witnesses, the complainant may choose to produce to stand by allegation in the complaint.

ii. A Magistrate while deciding to pass an order summoning the accused, examination of material is not Page No.# 11/14

intended for forming an opinion as to whether materials are sufficient for conviction, instead, he is required to form an opinion whether the materials are sufficient for proceeding. iii. Since the accused does not enter the arena at that stage, the question of accused raising a defence to the issuance of process does not arise.

iv. The accused is not before the Magistrate, at that stage, shall not mean that the Magistrate need not apply its judicial mind.

v. At that stage, a Magistrate can even look into the explanation to Section 499 to prevent a frivolous complaint from triggering an unnecessary trial.

19. Now in the aforesaid context of facts and law, let this court deal with the present case.

20. A bare reading of the complaint, as a whole and also reading the statements of the complainant discloses that the accused had used certain word against the complainant in a Whatsapp group and the dispute initially started on the disagreement of mode and manner of functioning as a Secretary and the difference between the Secretary i.e., accused and the President. The complainant asserted that society in its meeting has brought another Executive President to look after day to day working of the society which was also apparently not acceptable to the President inasmuch as it is his specific case that after appointment of the Working President, his role was limited only to signing bank papers and subsequently he resigned. Therefore, from the reading of the complaint itself, it is Page No.# 12/14

disclosed that there is a dispute so far relating to the functioning of the society, between the complainant in one side and others including the Secretary and the executive President on the other and the dispute arose, according to the complainant, is regarding mal practices carried out by the accused as Secretary.

21. In the statement recorded before the Magistrate there is no whisper as regards harm of the complainant reputations in the eyes and esteems of others except stating that his reputation has been damaged. Neither in his complaint nor during his statement recorded under section 200 Cr.P.C., he has even remotely suggested that his esteems and reputation has been lowered in the eyes of others and no such person has been named witness in the case.

22. Though the complainant has recorded his statement, however, he has not produced or brought any person to support his assertion. Therefore, in the considered opinion of this court and on the basis of the materials available on record, the learned Magistrate could not have issued process, taking note of the explanation 4 of section 499.

23. A reading of the complaint as well as the statement of the complainant nowhere identifies any witness or person before whom the reputation of the complainant is harmed directly or indirectly. In the considered opinion of this court the materials as recorded hereinabove, in the considered opinion of the court are not sufficient for proceeding in the matter. In the considered opinion of this court the aspect of the explanation to section 499 IPC ought to have been connected to the statements made in the complaint as Page No.# 13/14

well as depositions made by the complainant under section 200 Cr.P.C to avoid an unnecessary trial which the learned Magistrate had failed.

24. It is also well settled that the procedure for taking cognizance is not a mere formality. The Magistrate is to apply its own mind to the complaint, the statements recorded under section 200 Cr.P.C., and determine whether aforesaid material makes out case of defamation, before issuing summon to the accused. In the cases of Manoj Kumar Tiwari Vs Manish Sisodia reported in 2022 Live Law (SC) 853, and in National Bank of Oman vs Barakara Abdul Aziz reported in (2013) 2 SCC 448, a ratio laid down that criminal jurisprudence, if the allegation contain in the complaint does not constitute the offence complained of, then the accused should not be made to undergo the ordeal of a trial.

25. From the aforesaid judgments, the principle that can be curved out is that it is the duty and obligation of the Magistrate to find out, if there is any matter which calls for inquiry by a criminal court. The scope of enquiry under Section 200 Cr.P.C. is limited to the ascertainment of truth or falsely of the allegation made in the complaint. It is for the limited purpose to find out whether a prima- facie case for issuance of process has been made out.

26. As recorded hereinabove, the Magistrate while passing the impugned order has failed to consider such principles of law.

27. From the reasons and discussions recorded hereinabove, more particularly, in the backdrop of the settled propositions of law, the statement made in the complaint and the statement recorded under section 200 IPC, this court is of the unhesitant view that no Page No.# 14/14

offence under section 500 IPC has been made out from the complaint as well as from the statement of the complainant, even if they are accepted and taken to be correct on its face value.

28. Accordingly the present petition stands allowed by quashing the order dated 20.01.2018 passed by the learned SDJM No.2, Kamrup (M) at Guwahati whereby cognizance was taken against the petitioner under section 499/500 IPC as well as entire

proceeding in CR Case No.145c/2018 under section 500 IPC which is now pending before the court of SDJM No.II, Kamrup (M), Guwahati.

JUDGE

Comparing Assistant