Kutubiddin Ansari vs State Of Gujarat
2023 Latest Caselaw 6766 Guj

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       R/SCR.A/197/2020                                        ORDER DATED: 14/09/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CRIMINAL APPLICATION NO. 197 of 2020

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                                    KUTUBIDDIN ANSARI
                                          Versus
                                    STATE OF GUJARAT
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Appearance:
MR AJ YAGNIK(1372) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                      Date : 14/09/2023
                                       ORAL ORDER

1. Present petition is filed with a prayer to quash and set

aside order passed by learned City Civil and Sessions Court,

Ahmedabad, in Criminal Revision Application No.149 of 2016

and earlier order dated 10.3.2014 passed by learned

Additional Chief Metropolitan Magistrate, Ahmedabad, below

Exh.1 in Inquiry Application No.4 of 2013 (arising out of

Criminal Misc. Application No.55 of 2013) and direct learned

Additional Chief Metropolitan Magistrate, Ahmedabad, to

proceed in accordance with law in Criminal Misc. Application

No.55 of 2013 against proposed accused.

2. Brief facts of the case are that the present petitioner

was a victim of the riots that took place in Gujarat in 2002

and that his picture was published in all the newspapers as

face of the riots and that was so traumatizing to the

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petitioner that the present petitioner had to leave the State

of Gujarat and had to live in Kolkata for 3 years. It is

submitted that the petitioner returned to Gujarat in the year

2005 and since then the petitioner is staying at the address

mentioned in the cause title herein above.

2.2. It is stated that a film titled "Rajdhani Express" was

released on 04.01.2013 and the petitioner was shocked to see

that the picture of the petitioner taken by the journalist at

the time of Gujarat Riots, 2002 was used without prior

approval or consent of the petitioner in the said film. It is

submitted that the petitioner has been portrayed in the said

film in such a manner that it has caused great harm to his

reputation and has endangered his personal safety and

security. That, for the sake of brevity it can be stated that

the said film has showcased the present petitioner in a

scandalous background which harms and undermines the

reputation of the petitioner. It is submitted that due to the

use of such image in the said film, the petitioner had to

relive the traumatizing events of Gujarat riots of 2002.

2.3. The petitioner, therefore had filed complaint under

section 200 of the Code of Criminal Procedure, 1973 before

learned Chief Additional Metropolitan Magistrate vide Criminal Misc. Application No. 55/ 2013 for the offence under

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Section 499, 500, 153 read with section 120-B of the Indian

Penal Code, 1860. It is submitted that after recording

verification of the petitioner, the learned Magistrate ordered

inquiry under section 202 of Code of Criminal Procedure vide

order dated 18.03.2013 and further directed the present

petitioner to remain present on 22.04.2013 with further

evidence.

2.4. It is submitted that learned Chief Additional

Metropolitan Magistrate on 10.03.2014 summarily dismissed

the complaint of the petitioner under Section 203 of the Code

of Criminal Procedure on the ground that the photographs

and the video compact disk of the film "Rajdhani Express"

which has been produced by the petitioner as evidence does

not prove that the said photograph which has been shown in

the said film is of the applicant and that it has harmed or

caused damage to the reputation of the petitioner.

2.5. It is submitted that aggrieved by the order of the

learned Chief Additional Metropolitan Magistrate, the

petitioner herein had approached the Hon'ble High Court of

Gujarat vide Criminal Misc. Application No. 8776 of 2014

challenging order dated 10.03.2014. However, the said

Criminal Misc. Application was subsequently withdrawn by

the petitioner herein and this Hon'ble High Court vide its

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order dated 03.02.2015 allowed the said withdrawal with

liberty to file appropriate application.

2.6. It is submitted that after withdrawing the said

application, the petitioner filed Criminal Revision Application

No.149/2016 before the City Civil and Sessions Court,

Ahmedabad challenging final order dated 10.03.2014 passed

by the learned Additional Chief Metropolitan Magistrate

praying to set aside the order dated 10.03.2014 and to order

for investigation under Section 156(3) of the Criminal

Procedure Code, 1973.

2.7 It is submitted that by order dated 15.03.2019, City

Civil and Sessions Court rejected the Criminal Revision

Application No.149/2016 on the ground that the petitioner

(original complainant) has not provided any evidence or proof

showing the harm caused to the reputation of the petitioner

and the said harm has been intentionally caused by the

respondent no.2 and 3 in the present petition. Further, the

petitioner has also not been able to prove that the

photograph which has been used in the said film is of the

petitioner only and not of anybody else. Hence, upholding the

order dated 10.03.2014 passed by the learned Additional Chief

Metropolitan Magistrate in Criminal Inquiry Case No.

14/2013, the City Civil and Sessions Court rejected Criminal

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Revision Application No. 149/2016 by the order dated

15.03.2019. Being aggrieved by it, present petition is

preferred by the petitioner.

3. Heard Mr.Gohil for Mr.A.J.Yagnik, learned advocate for

the petitioner and Mr.Chintan Dave, learned APP for the

respondent-State.

4. Mr.Gohil, learned advocate for the petitioner submits

that both the Courts below have not properly considered the

fact that prima facie offence is made out under Section 499

of IPC. He has drawn attention of this Court towards the

verification of the petitioner, which is recorded by the trial

Court while registering the complaint of the petitioner,

wherein he has given necessary details. He has further

submitted that both the Courts below have not given proper

reasons for passing impugned orders. He has further

submitted that order is passed by learned trial Court under

Section 203 of the Criminal Procedure Code, which is nothing

but a grave error of law. He has further submitted that

learned Magistrate ought to have ordered investigation under

Section 196 (3) of Criminal Procedure Code, considering

prima facie case of the petitioner. He, therefore, prays to allow both this petition by quashing and setting aside the

impugned orders passed by the Courts below.

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5. Per contra, Mr.Chintan Dave, learned APP for the

respondent-State has submitted that both the Courts below

have not committed any error, more particularly, the trial

Court has given cogent and convincing reasons, which are

properly appreciated by learned Revisional Court while

exercising power under Section 397 by framing issues and

giving detailed reasons for deciding such revision application.

Prima facie, it cannot be said that the Courts below have committed any error and the Courts below have come to the

right conclusion, that after the complaint sought to be filed

by present petitioner is required to be dismissed under the

provisions of Section 203 of Criminal Procedure Code. He,

therefore, prays that as both the Courts below have given

concurrent finding of fact and also no error of law is found

from the impugned judgment, present petition may be

dismissed.

6. I have considered rival submissions made at the bar. I

have also considered the contents of the impugned

application, whereby complaint under Section 499, 153 and

500 and 120-B of IPC is sought to be filed against the

proposed accused. Provisions of Sections 120-B, 153, 499 and

500 of IPC are required to be considered, which are as

under:-

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"120-B. Punishment of criminal conspiracy.--(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]"

"153. Wantonly giving provocation, with intent to cause riot:

Whoever malignantly, or wantonly by doing anything which is illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed, shall, if the offence of rioting be committed in consequence of such provocation, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both; and if the offence of rioting be not committed, with imprisonment of either description for a term which may extend to six months, or with fine, or with both."

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"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 cases hereinafter excepted, to defame that person.

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."

7. Provisions of Sections 202 and 203 of Criminal

Procedure Code are also relevant, which are as under:-

"202. Postponement of issue of process.--(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, 1 [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

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Provided that no such direction for investigation shall be made,--

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.

203. Dismissal of complaint.--If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing."

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8. It transpires that the dispute pertains to some scenes of

a movie named as "Rajdhani Express". It also transpires that

the complaint is filed against respondent nos.2 and 3,

however, during the pendency of revision application, as

respondent no.2, Ashok Gohil was not served, he was deleted

by order passed by Revisional Court under Exh.27.

Considering the reasons given by the Courts below, more

particularly, trial Court in Inquiry Application No.4 of 2013,

below Exh.1, after inquiry made under Section 202 of

Criminal Procedure Code, prima facie found that there is no

material or evidence produced by the complainant. Meaning

thereby, it is established that there is no defamation and

ingredients of Section 499 are not satisfied. It also transpires

that ingredients of Section 153 pertains to inciting a person

for rioting and Section 120-B pertains to conspiracy to

commit an offence by two or more persons. There is no

satisfactory evidence found by the learned trial Court from

the material available on record, which constitutes offence

alleged in the FIR. Therefore, the Court has formed an

opinion that since ingredients of the complaint are not

satisfied on bare reading of the complaint as well as material

available on record, the complaint is required to be dismissed

under the provisions of Sections 203 of the Criminal

Procedure Code. Such order is challenged before the revisional

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Court, wherein Revision Court has also framed issues for

determination and after considering the material available on

record, it has found that the trial Court has given cogent

and convincing reasons and the order passed by the trial

Court is found to be just and proper. Revisional Court has

also come to the conclusion that no prima faice offence is

made out from the material available on record against the

accused persons.

9. It is rightly found by the Courts below that the

complainant has not produced any evidence before the lower

Court that the accused have used the photograph of the

complainant with the intention of damaging the personal

reputation of the complainant. Even the lower court has

recorded in its order that no evidence has been produced

that the complainant has suffered any loss due to such act

of the accused. The lower court has also noted in its order

that no clear evidence has been produced that the plaintiff

has done any act causing damage and the plaintiff has not

examined the witnesses who can be said to be neutral in

that regard. The complainant in this case has not produced

any clear evidence that the reputation of the complainant has

been damaged and such damage has been intentionally

caused by the accused persons. Thus, taking into account all

these facts and evidence, the Courts below have properly

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evaluated the evidence. Accordingly, both the Courts below

have appreciated the material available on record and given

concurrent findings of fact and appreciated the provisions of

law in proper manner. Revisional Court has also exercised its

jurisdiction in proper manner by confirming the order of the

trial Court. Since the orders passed by the Courts below are

in consonance with the provisions of law, I do not find any

reason to interfere with the impugned orders.

10. Accordingly, present petition is dismissed. The impugned

order dated 10.3.2014 passed by learned Additional Chief

Metropolitan Magistrate, Ahmedabad, below Exh.1 in Inquiry

Application No.4 of 2013 and order dated 15.3.2019 passed by

learned Additional Sessions Judge, City Civil and Sessions

Court, Ahmedabad, in Criminal Revision Application No.149 of

2016 are hereby confirmed.

(SANDEEP N. BHATT,J) R.S. MALEK