Jammu & Kashmir High Court
Dr. Mohammad Akbar Bhat vs Abdul Ahad on 27 May, 1999
Equivalent citations: 2000CRILJ2719
ORDER G.D. Sharma, J.
1. Today CMP No. 37/99 was fixed wherein prayer has been made for the grant of direction to the incharge P.S. Indira Gandhi Airport, New Delhi for the release of passport No. 232157 dated 24-3-1993 which was seized on the orders of the Chief Judicial Magistrate, Budgam. On the agreement of the counsel for the parties, the said CMP is taken up alongwith main petition (Petition No. 39/97) for disposal.
2. The petitioner is a retired Principal of the Government Dental College, Srinagar. He has litigation with his ex-daughter-in...aw regarding the landed property. The petitioner has alleged that his ex-daughter-in...aw had filed a suit against him and his wife and in the plaint intentionally their wrong addresses were given. She in connivance with the respondent herein filed written statement on their behalf and the allegations of the plaint were admitted. On this frudulent admission, on 6-3-1997 the suit was decreed against them, when said decree was put to execution, in the month of April/ May, the petitioner came to know about the perpetuation of the fraud. Immediately thereafter, the petitioner filed the suit for the cancellation of the said decree by pleading mis-representation and fraud. The trial Judge has stayed the operation of the impugned judgment and the decree.
3. Besides this, the petitioner presented a complaint before the Lord Chief Justice regarding the commission of the professional mis-conduct by respondent herein who is an advocate. That complaint was referred to the Registrar Vigilance. The inquiry under law stands initiated and the signatures of the petitioner were sent for comparison to the hand-writing expert (Director Forensic Science Lab.) who has opined that the signatures on the power of attorney and the written statement are forged.
4. Respondent herein on 9-9-1997, filed the complaint before the Chief Judicial Magistrate, Budgam for the commission of offence falling under Section. 500, RPC against the petitioner herein. The allegations made in the complaint were that petitioner herein and his wife (deceased) had approached him in his house for soliciting legal advice and requested him to draft the written statement to be filed in the pending suit. They had also engaged him as a counsel by signing the power of attorney. The written statement was drafted on their behalf and they had signed the same as we'll as the power of attorney. The complaint about the professional mis-conduct was made by the petitioner herein with the sole idea of harming the professional reputation of the respondent herein and as soon as he received the copy of the summons alongwith the copy of the complaint from the office of the Registrar Vigilance he opened the same in the bar room at Budgam and read contents in presence of the members of the legal fraternity (bar and the bench) and thus his reputation has been harmed. The learned Chief Judicial Magistrate, Budgam examined the petitioner and one of his witness and after taking the cognizance of the complaint registered it as complaint No. 23-A of 1997 and thereafter issued the process against the petitioner for the commission of the offence falling under Section. 500, RPC.
5. In this petition it is alleged that the proceedings have been initiated against him solely with the purpose of pressurising to withdraw the complaint made before the Lord Chief Justice for professional mis-conduct and that the decree which was obtained against him was the result of fraud and misrepresentation perpetuated with the connivance of the respondents. Civil Suit has been filed for the cancellation of that decree and interim relief has been granted whereby the operation of the decree has been stayed (before Judge, Small Cause Court, Srinagar). The trial Court has wrongly taken cognizance of the complaint as no offence has been committed because petitioner has not defamed him either in the legal fraternity or before the public.
6. Heard the arguments.
7. The learned counsel appearing for the petitioner has reiterated the grounds of the petition and laid stress that prima facie misconduct of respondent has been proved as the expert opinion is to the effect that the signatures on the power of attorney and the written statement are forged. It is also contended that the petitioner has not defamed the respondent because he has neither made any publication nor imputation concerning him intending to harm or knowing or having reason to believe for such imputation will harm his reputation. He had made a complaint about the mis-conduct to a competent authority (Lord Chief Justice) and this remedy was available to him under law and during the inquiry if the Registrar Vigilance had sent the summons accompanied with a copy of the complaint, that was in the discharge of the official functions and respondent was under legal obligation to purge himself of the allegations. In case respondent suo motu has read the contents of the complaint in the bar room before the members of the bar as well as general public, that was not an act of the petitioner for the publication of the imputations. Lastly, it is pleaded that respondent who is a practising lawyer before the Court of learned Chief Judicial Magistrate, Budgam took advantage of his position and got the process issued by abusing the process of the Court when no offence is said to have been committed.
8. In rebuttal, it has been contended that respondent is a man of status who has a standing in the bar for more than 22 years and because of the imputations levelled against him he has been harmed in reputation and profession. It is also contended that this Court has not to exercise the inherent power to quash the proceedings because it is for the trial Court to adjudge about the frivolous or vexatious nature of the allegations. The allegations made in the complaint are specific and they amount to the commission of the offence of defamation. In support of his contention the learned counsel has cited the cases of "Dhanalakshmi v. R. Prassanna Kumar",AIR 1990 SC 494:1990 Cri LJ 320 and "Smt. Chand Dhawan v. Jawahar Lal" AIR 1992 SC 1379 : 1992 Cri LJ 1956.
9. In AIR 1990 SC 494:1990 Cri LJ 320 (supra); it has been held that in proceedings instituted on complaint; exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexations or oppressive.
10. In AIR 1992 SC 1379 : 1992 Cri LJ 1956 (supra), it has been held that where the allegations in complaint prima facie constitute an offence, the quashing of complaint on additional materials filed by the accused was not justified.
11. After considering the respective contentions of the counsel for the parties it has to be seen in the instant case whether the allegations made in the complaint even if are taken at their face value and accepted in their entirety, do or do not constitute the offence alleged. The answer to this query is that the allegations on their face value do not constitute an offence falling under Section. 500, RPC because it is not established on these allegations that respondent petitioner herein either by words spoken or intended to be read or by signs or by visible representations had made or published any imputation concerning the respondent and intending to harm him or knowing that it will harm his reputation. Rather, it is the admitted case of the respondent that he himself had read out the contents of the complaint in the bar room and in this manner the contents of the complaint were made public. This was the own act of the respondent for which the petitioner cannot be held guilty. It cannot be said that the allegations made in the complaint are defamatory because they relate to professional mis-conduct and addressed to an authority who under law is competent to take the suitable action. The trial Court was required to address itself on these significant aspects of the case which has not been done. Taking the cognizance of the complaint and issuance of the process against the petitioner is an abuse of the process of the Court. In this view of the matter, the proceedings initiated in the said complaint are quashed and the complaint stands dismissed with a direction to the concerned authority of the P.S. Indira Gandhi Airport, New Delhi for releasing passport No. 232157 dated 24-3-1993 in favour of the petitioner. CMP No. 37/99 also stands disposed of.