Velsingh Bhuriya vs Narendra Mandloi
2023 Latest Caselaw 5595 MP

                                                            1
                           IN     THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                     BEFORE
                                       HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                                                 ON THE 6 th OF APRIL, 2023
                                        MISC. CRIMINAL CASE No. 27970 of 2019

                          BETWEEN:-
                          VELSINGH BHURIYA S/O BUDDHA SINGH BHURIYA,
                          AGED ABOUT 38 YEARS, OCCUPATION: POLITICS R/O
                          VILLAGE BHIKHEDI TEH. SARDARPUR DISTRICT DHAR
                          (MADHYA PRADESH)

                                                                                          .....APPLICANT
                          (BY SHRI ASEEM TRIVEDI - ADVOCATE)

                          AND
                          1.    NARENDRA MANDLOI S/O VINAYAK RAO JI
                                MANDLOI, AGED ABOUT 74 YEARS, R/O TAH.
                                SARDARPUR   DISTRICT  DHAR    (MADHYA
                                PRADESH)

                          2.    THE STATE OF M.P. THROUGH THE POLICE
                                STATION SARDARPUR DISTT-DHAR (MADHYA
                                PRADESH)

                                                                                       .....RESPONDENTS
                          (BY SHRI ALOK AGNIHOTRI - DY.GOVERNMENT ADVOCATE )
                          (SHRI ANURAG GOHIL - ADVOCATE - FOR RESPONDENT NO.1.)

                                This application coming on for hearing this day, the court passed the
                          following:
                                                             ORDER

The petitioner has filed this petition under Section 482 of Cr.P.C. seeking quashment of entire criminal proceeding pending against the petitioner in Court of 21st Additional Sessions & Special Judge (M.P & MLA), Bhopal for the offence punishable under Section 500 of IPC in case No.SC PPM 33/19.

As per the facts of the case, respondent no.1 filed a complaint against the Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 4/11/2023 5:07:04 PM

petitioner for defamation under Section 500 of Cr.P.C alleging that he has committed an offence under Section 499 of IPC and as such he should be punished. It is also claimed that by way of damages an amount of Rs.25 crore be paid to respondent no.1. Petitioner is an ex member of legislative assembly of Bhartiya Janta Party whereas respondent no.1 belongs to Congress Party; both have political malice against each other as both the persons are involved in the politics belonging to opposite party to each other and their area of politics is basically same. Respondent no.1 belongs to a very highly reputated family and his ancesstors were Jagirdar of village Hatod, Marol, Amjhera and Dasai and they have also participated in the freedom movement with Mahatma Gandhi.

The elder brother of respondent no.1 had been a member in Electricity Board, Jabalpur. Respondent no.1 is also President of Agriculture Product Committee, Dhar and also President of District Press Club and District Congress.

Respondent no.1 filed a complaint under Section 500 of Cr.P.C against the petitioner that on 27/05/2018 at village Manngod Tahsil Sardarpur District Dhar in a public gathering of Tendu leave Collectors and the labours of unorganized sector in which Chief Minister Shri Shiv Raj Singh Chouhan was also present, petitioner in the capacity of sitting MLA of Sardarpura constituency while addressing all most 10,000/- people used some objectionable words against the family of the respondent no.1. In the complaint, it is alleged that the petitioner without any reason and foundation just to draw the public attention and to get political gain and to defame the reputation of respondent no.1 alleged that the family of respondent no.1 was murderer of the then king Bakhtavar Singh and also said against the family of Madhavrao Sindhia alleging that they used to be the murderer of Mahatma Gandhi.

I n the complaint, it is stated by respondent no.1 that the statement of Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 4/11/2023 5:07:04 PM

petitioner in a public meeting was defamatory and was made with an intention to harm the reputation of respondent no.1. It is stated that such imputation of the petitioner are without any foundation. It is also stated that not only a notice was given by the counsel of the respondent to the petitioner but a police report was also made before the Superintendent of Police, Dhar but nothing was done as petitioner is a politically influential person and member of legislative assembly and as such complaint was filed on which cognizance has been taken by the Court on the basis of allegations made in the complaint supported by several witnesses whose statements have been recorded in the Court.

It is contended by counsel for the petitioner that no offence is made out against the petitioner because nothing direct has been alleged against the respondent no.1 whereas the petitioner has only stated that the then King Bakhtavar Singh of village Amjhera was murdered by members of Mandloi family. He submits that there were so many Mandloi families in the area, therefore, respondent cannot say that said statement was made directly against him. He has also submitted that Mandloi is a title but the same does not refer to any particular caste or community as such complaint is without any foundation and has been filed by the respondent only to take revenge from the present petitioner. In support of his submission he has placed reliance upon a decision of Supreme Court reported in (2010) 5 SCC 600 (S.Khusboo Vs. Kanniamal

and another) and (2016) 7 SCC 221 (Subramaniyan Swamy Vs Union of India, Ministry of Law and others). As per the counsel for the petitioner, offence of Section 499 of IPC is not made out against the petitioner as he has not said anything directly against respondent and as such complaint is not maintainable and cognizance taken by the Court is also illegal.

Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 4/11/2023 5:07:04 PM

Counsel for State submits that it is a dispute between the petitioner and respondent no.1, therefore, he has nothing to say against anybody. He submits that it is the respondent who has to establish his case before the Court.

Shri Gohil, counsel for respondent no.1 submits that against framing of charge petition filed by the petitioner under Section 482 of Cr.P.C is not maintainable, as such the same deserves to be dismissed. He further submits that statement made by the petitioner in a public meeting was directly or indirectly against the respondent no.1. The said statements were made by the petitioner just to defame and harm the respondent no.1. He submits that the statement made by the petitioner constitute an offence of Section 499 of IPC because the same is defamatory causing damage to the respondent not only publically but politically also. He submits that petitioner has rightly been made accused and cognizance of the complaint made by the respondent has rightly been taken by the Court below that too on the basis of statement of witnesses. He submits that the witnesses adduced by the complainant in support of the contents of complaint have very categorically stated against the petitioner before the Court and their statements are enough to justify the proceeding initiated by the Court below. He has placed reliance upon a judgment of Supreme Court passed in Cr.A.No.1696/1996 (Shatrughna Prasad Sinha Vs. Rajbhau Surajmal Rathi and others) and on a judgment passed by High Court of Jhankhand in Criminal M.P.No.152/2020 (Rahul Gandhi Vs. State of Jharkhand and others). He submits that there is nothing wrong in the action taken by the Court below and as such this petition is without any substance and deserves to be dismissed.

Paragraphs 9, 10, 11 and 12 of the judgment Shatrughna Prasad

Signature Not Verified Sinha(supra) are relevant which are reproduced as under:- Signed by: SUSHMA KUSHWAHA Signing time: 4/11/2023 5:07:04 PM

9. The next question is whether the learned Judge was right in holding that the complaint discloses offence punishable under Section 500 IPC? Section 499 defines defamation thus:

499. 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.

10. Explanation 2 to the said section envisages that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

11. Explanation 4 provides that no imputation is said to harm 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 of 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.

12. A reading of the complaint does not contain any of the allegations constituting the offence of defamation punishable under Section 500 IPC. The contents of the magazine are alleged to be defamatory against the Marwari community, lowering them in the estimate of the public or their reputation is lowered in the society. But we do not find any allegation made in the complaint. Accordingly, we hold that the complaint filed in the Court of the Judicial Magistrate, First Class in Court No. 4 at Pune does not contain any of the allegations so as to constitute the offence of defamation defined in Section 499 and punishable under Section 500. Consequently, the Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 4/11/2023 5:07:04 PM

Magistrate was not justified in issuing the process against the appellant. The complaint is accordingly quashed.

I have considered the submissions made by counsel for both the parties and perused the record.

T he sole contention of counsel for the petitioner is that the statement made by the petitioner in a public meeting indicating the Mandloi community was not against respondent no.1 because in the said area there were other families belonging to Mandloi caste, therefore, it cannot be said that intention of the petitioner was to defame the respondent no.1 or to harm his reputation.

However, prima facie I am not satisfied with the submissions made by counsel for the petitioner for the reason that the complainant in support of complaint has adduced so many witnesses whose statements got recorded under Section 202 of Cr.P.C, in which they have supported the stand taken by the respondent in his complaint. They have also stated that statement made by the petitioner was not against anybody but it was against the respondent no.1.

Even the public reporter who was on spot has given statement that it was a public meeting of unorganized labour relating to collection of tendu patta and respondent was president of Mandi and also President of District Congress and his forefather having good reputation in the area known to be a freedom fighter family and if anything is alleged against the Mandloi family that directly or indirectly include the family of respondent no.1.

The Supreme Court in S.Khusboo (supra) in paragraph 34 has held as under :-

34. It is our considered view that there is no prima facie case of defamation in the present case. This will become self-evident if we draw attention to the key Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 4/11/2023 5:07:04 PM

ingredients of the offence contemplated by Section 499 IPC, which reads as follows:

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 expected, to defame that person. Explanation 1 It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.

Explanation 2 It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3 An imputation in the form of an alternative or expressed ironically, may amount to defamation.

Explanation 4 No imputation is said to harm 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 of 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.

(emphasis supplied) The definition makes it amply clear that the accused must either intend to harm the reputation of a particular person or reasonably know that his/her conduct could cause such harm. Explanation 2 to Section 499 further states that It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

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The Supreme Court in Subramanyam Swamy(supra) in paragraphs 207 and 208 has held as under:-

207 Another aspect required to be addressed pertains to issue of summons. Section 199 CrPC envisages filing of a complaint in court. In case of criminal defamation neither can any FIR be filed nor can any direction be issued under Section 156(3) CrPC. The offence has its own gravity and hence, the responsibility of the Magistrate is more. In a way, it is immense at the time of issue of process. Issue of process, as has been held in Rajindra Nath Mahato v. T. Ganguly [Rajindra Nath Mahato v. T. Ganguly, (1972) 1 SCC 450 : 1972 SCC (Cri) 206] , is a matter of judicial determination and before issuing a process, the Magistrate has to examine the complainant. In Punjab National Bank v. Surendra Prasad Sinha [Punjab National Bank v. Surendra Prasad Sinha, 1993 Supp (1) SCC 499 : 1993 SCC (Cri) 149] it has been held that judicial process should not be an instrument of oppression or needless harassment. The Court, though in a different context, has observed that there lies responsibility and duty on the Magistracy to find whether the accused concerned should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded, then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly.

Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. In Pepsi Foods Ltd. v. Special Judicial Magistrate [Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 4/11/2023 5:07:04 PM

(Cri) 1400] , a two-Judge Bench has held that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course.

208. We have referred to these authorities to highlight that in matters of criminal defamation the heavy burden is on the Magistracy to scrutinise the complaint from all aspects. The Magistrate has also to keep in view the language employed in Section 202 CrPC which stipulates about the residence of the accused at a place beyond the area in which the Magistrate exercises his jurisdiction. He must be satisfied that ingredients of Section 499 CrPC are satisfied. Application of mind in the case of complaint is imperative.

As per explanation 4 of Section 499 of IPC no imputation is said to harm a person's reputation unless the 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.

In view of submissions made by counsel for parties and perusal of record, prima facie I am of opinion that this is not the stage when this Court can draw conclusion that the allegations made against the petitioner in a complaint made by the respondent no.1 are not sufficient to initiate criminal prosecution. It is also not the stage when this Court can draw a conclusion that offence of Section 499 of IPC is not made out against the petitioner. The scope of quashing FIR and entertaining the petition exercising extra ordinary jurisdiction under Section 482 of Cr.P.C is not available to the petitioner in the facts and circumstances. The petition in my opinion is not having substance on the basis of which a proceeding initiated against the petitioner can be quashed. Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 4/11/2023 5:07:04 PM

Accordingly the same is hereby dismissed.

(SANJAY DWIVEDI) JUDGE sushma

Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 4/11/2023 5:07:04 PM