Omprakash Modani, Nizamabad., vs Ramesh Kumar Bungh, Hyd 36 Othrs, ...
2022 Latest Caselaw 568 Tel

         THE HON'BLE Dr. JUSTICE G. RADHA RANI

             CRIMINAL PETITION No.13413 of 2013
ORDER:

This petition is filed by the petitioner - complainant under

Section 482 Cr.P.C. to quash the order dated 25.06.2013 passed in

Crl.R.P. No.47 of 2012 by the Sessions Judge, Nizamabad, confirming

the order dated 05.10.2012 passed in CFR No.4151 of 2012 on the file

of the I-Additional Judicial Magistrate of First Class, Nizamabad.

2. The case of the petitioner in brief was that he was a Member

of the Maheshwari Sabha, a religious organization and he was a

founder Member of Nizamabad Zilla Maheshwari Sabha. While so,

during elections of the office bearers in December 2005, he supported

one group. There were disputes between the groups during the

elections and legal proceedings were also initiated by both the groups.

Ultimately, the opposite group of the petitioner was elected to the

office. In order to wreck vengeance against those who worked against

them, the elected office issued a show cause notice dated 09.10.2006 to

the petitioner and others. Another show cause notice was also issued to

show why their membership should not be terminated for involving in

antisocial activities causing dis-respect to the society. He gave a reply

on 30.10.2006. But, ignoring the reply given by him, the respondents-

accused-office bearers terminated his permanent membership by letter

dated 22.11.2006. Even before communicating the termination letter to

the complainant, the respondents got the termination of Membership

published in the newspaper. Aggrieved by the termination proceedings, Dr.GRR,J

the petitioner filed OP No.1 of 2007 before the District Court,

Nizamabad. By order dated 28.07.2011, the District Court set aside the

termination proceedings and restored the membership of the petitioner.

The petitioner, feeling defamed in the society because of termination of

his membership filed the complaint, but the learned Magistrate

dismissed the complaint though a prima facie case was made out by the

petitioner. The learned Magistrate totally ignored the fact that the paper

publication was altogether silent about the reply given by the petitioner

seeking information on which allegation was made, by leaving an

impression that the petitioner himself kept silent and could not respond

in any manner as if he had accepted the allegations made therein. In

the view of the readers, the petitioner was projected as guilty of the

allegations and thereby he was defamed.

3. Aggrieved by the said order, dated 05.10.2012, the petitioner

filed a criminal revision petition before the Sessions Court, Nizamabad

vide Crl.R.P. No.47 of 2012. The learned Sessions Judge vide order

dated 25.06.2013 dismissed the same holding that there was no

infirmity in the order of the learned Magistrate. The petitioner

submitted that the learned Sessions Judge ignored that there was

malicious intention of publication without disclosing the response of

the petitioner for the show cause notice which resulted in drawing an

inference by the readers that the petitioner was guilty and he was

thereby defamed and hence, preferred this petition to quash the orders

of the Courts below.

Dr.GRR,J

4. Heard the learned counsel for the petitioner-complainant and

the learned counsel for the respondents.

5. Perused the record. The record would disclose that the trial

Court dismissed the complaint observing that "in view of the tenth

exception of Sec.499 IPC, the publication dt.01.12.2006 with respect to

the termination of primary membership of complainant in Dist. level &

the same was published in the news paper does not amount to

defamation U/s.499 IPC, but it amounts to caution intended for pubic

good as the District level Maheshwari Sabha is a public concern. In

those circumstances the court did not find a prima facie accusation

against the accused persons for the offence U/s. 500 & 504 IPC."

6. The petitioner preferred a revision against the said order

before the Sessions Judge, Nizamabad and the learned Sessions Judge

vide order dated 25.06.2013 in Crl.R.P. No.47 of 2012 observed that:

"The material on record discloses that the revision petitioner was a primary member of Andhra Pradeshik Maheshwari Sabha and all the Sabhas in the District level to central level are registered under society's registration. The primary membership of the revision petitioner was terminated consequent to orders passed in O.P. No.1 of 2007 on 28.07.2011 on the file of I Addl. District Judge, Nizamabad. The publication was made pursuant to the orders passed in O.P. No.1 of 2007 by the I Addl.District Judge, Nizamabad. The main contention of the revision petitioner is that due to publication made in Hindi newspaper "Swatantra Warta" dated 1.12.2006, he was degraded and defamed and mental and physical torture caused to him. There is no doubt the order passed in O.P. No.1 of 2007 dated 22.11.2006 terminated the primary membership of the revision petitioner. The order in OP No.1 of 2007 dt.28.7.2011 was passed by the I Addl. District Judge, Nizamabad after elaborate discussion. It is pertinent to state that the publication in question was not made on own by the respondents herein. It was only pursuant to the orders passed by the learned I Addl. District Judge, Nizamabad. It is a requirement under the society's law to communicate the orders to Dr.GRR,J

the outsiders. Moreover, under Section 499 IPC, as per the tenth exception, it is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended to the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good. So, on the basis of record, I hold that it is not proper to take cognizance. The learned Magistrate has rightly rejected the complaint. The order suffers with no infirmity and no interference is required. The point is answered accordingly."

7. The revisional court went wrong in observing that the

primary membership of the petitioner was terminated consequent to the

orders passed in OP No.1 of 2007 on 28.07.2011 and that publication

was made pursuant to the orders passed in OP No.1 of 2007 by the I-

Additional District Judge, Nizamabad. The Sessions Judge in the next

sentence itself observed that the publication was made in Hindi

Newspaper "Swantantra Varta" dated 01.12.2006 as such, the

publication on 01.12.2006 was much prior to the judgment of the I-

Additional District Judge, Nizamabad on 28.07.2011. He also went

wrong in observing that the order passed in OP No.1 of 2007 dated

22.11.2006 terminated the primary membership of the revision

petitioner. O.P. No.1 of 2007 was filed by the petitioner-complainant-

revision petitioner challenging his termination from the permanent

membership of Andhra Pradeshik Maheshwari Sabha. It was decided

by the I-Additional District Judge, Nizamabad on 28.07.2011

observing that:

"Absolutely none of the evidence placed before this Court by the respondents, was not placed before the Managing committee when the decision arrived at hence such material has little importance for the disposal of the case. Even otherwise, there is no material to prove that the petitioner indulged in any anti-social activities and defamed the society and participated in the parallel sabha. I am of the view Dr.GRR,J

that termination of the membership of the petitioner is ex-facie illegal and without any authority and not supported by any material and the decision arrived by the authorities was not based on any material which forms part of show caused notice hence the same is liable to be set aside."

8. As such, the I-Additional District Judge, Nizamabad observed

that the termination of membership of the petitioner was illegal and

allowed the petition by setting aside the termination order dated

22.11.2006 passed by the Managing Committee of the Andhra

Pardeshika Maheshwari Sabha. But the learned Sessions Judge,

Nizamabad erred in observing that the primary membership of the

petitioner was terminated vide order in OP No.1 of 2007. His further

observation that "the publication in question was not made on own by

the respondent therein, but it was only pursuant to the orders passed by

the I-Additional District Judge, Nizamabad" was also under mis-

appreciation of facts. The Sessions Judge observed that it was a

requirement under the Society's law to communicate the orders to the

outsiders. But, he had not mentioned under which law the said order

was required to communicate and failed to observe that the publication

was much prior to the order of the I-Additional District Judge and the

order of the I-Additional District Judge, Nizamabad was contrary to the

publication and the learned I-Additional District Judge observed that

there was no material to prove that the petitioner indulged in anti-social

activities and defamed the society and participated in a parallel sabha.

9. The learned Sessions Court confirmed the orders of the I-

Additional Judicial Magistrate of First Class, Nizamabad accepting the

observation of the Magistrate court that the complaint would fall under Dr.GRR,J

10th exception of Section 499 IPC and it was not defamation to convey

a caution, in good faith, to one person against another, provided that

such caution was intended to the good of the person to whom it was

conveyed, or of some person in whom that person was interested, or for

the public good. Both the Courts below at the time of taking

cognizance itself observed that the complaint would fall under one of

the exceptions mentioned under Section 499 IPC. It was for the

defence to state that their case would fall under one of the exceptions.

But, the court itself, at the time of taking cognizance, observed that it

would come under one of the exceptions, which prima facie appears to

be improper. The court has to see if any prima facie case was made out

against the persons accused of the offences in the complaint. When the

petitioner-complainant was alleging that a publication was made

against him in a Hindi newspaper "Swantantra Varta" by the

respondents that he was terminated from the primary membership of

the society, which would amount to defaming him and degrading him

and his termination was set aside as illegal by the I-Additional District

Judge, Nizamabad after considering the evidence and material on

record after an elaborate and detailed discussion and he filed the

complaint on 27.07.2012 after the judgment in OP No.1 of 2007 on

28.07.2011, it is the duty of the court to consider whether the said

publication prima facie would amount to defamation or not? But, the

Court itself considering that it would come under one of the exceptions

to the defamation and it was intended to caution the general public is

considered as entering into the shoes of the defence. What caution it Dr.GRR,J

intended to give to others by making such publication and what public

good it was seeking to achieve to convey by the said publication is not

known. The Sessions Court confirming the said observations of the

trial Court under misunderstanding of the facts, amounts to causing

injustice to the complainant. As such, it is considered fit to set aside

the order of the Sessions Court, Nizamabad dated 25.06.2013 passed in

Crl.R.P. No.47 of 2012.

10. In the result, the Criminal Petition is allowed setting aside

the order dated 25.06.2013 passed in Crl.R.P. No.47 of 2012 by the

Sessions Judge, Nizamabad, confirming the order dated 05.10.2012

passed in CFR No.4151 of 2012 by the I-Additional Judicial Magistrate

of First Class, Nizamabad.

Miscellaneous petitions pending, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J February 11, 2022 KTL