Gujarat High Court
Hemantkumar Hasmukhlal Hojiwala vs State Of Gujarat & on 1 August, 2014
Author: R.D.Kothari
Bench: R.D.Kothari
R/CR.MA/16964/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 16964 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.D.KOTHARI
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1 Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2. To be referred to the Reporter or not ? YES
3. Whether their Lordships wish to see the fair copy NO
of the judgment ?
4. Whether this case involves a substantial question NO
of law as to the interpretation of the constitution
of India, 1950 or any order made thereunder ?
5. Whether it is to be circulated to the civil judge ? NO
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HEMANTKUMAR HASMUKHLAL HOJIWALA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR RS SANJANWALA, SR. ADVOCATE WITH MR AMIT V THAKKAR,
ADVOCATE for the Applicant
NOTICE SERVED for the Respondent(s) No. 2
MR KP RAVAL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 01/08/2014
Page 1 of 14
R/CR.MA/16964/2008 JUDGMENT
ORAL JUDGMENT
1. What is defamation? Complainant alleges that notice given by petitioner's advocate contains defamatory statement and hence, the complaint. Petitioner prays to quash the complaint.
2. Few relevant facts are, thus;
Petitioner is a Chairman of Sachin Udyognagar Sahakari Mandali Limited. Complainant claims to be the power of attorney holder of his son. Complainant's son is a member of said Sachin Udyognagar Sahakari Mandali Limited. Some of the members of the society have formed committee called "Sabhasad Hitrakask Samiti" . It is claimed that to expose illegal activities of the office bearers of the co-operative society, this Samiti is formed. It is the say of the complainant that to intimidate, threaten and blackmail the members of the said committee, a notice in question was given by the petitioner's advocate. It is dated 16.5.2007. Alleged defamatory allegation made in the notice, in substance, are as under :
(I) That you are the accused in the complaint bearing I-
C.R.No.87/2003 registered at Gondal Police Station for murder of one Vikramsinh Rana, (II) That in murder of one Tulsi Bhagat of Jasdan Taluka, you are also the accused.
(III) That in your native, you were involved in serious Page 2 of 14 R/CR.MA/16964/2008 JUDGMENT criminal activities and upon police pressure mounting, you have left the native and shifted to Surat. However, it appears that you have not given up your criminal mentality.
(IV) That you have come at Surat after committing two murders. That you have come to threaten and terrorize the members of the society. That you have formed assembly of anti-social elements, who have criminal background.
(V) That there is a documentary evidence of cheating and forgery in connection with sale of plot.
3. It is the say of the complainant that by issuing the notice with above-referred contents and giving a copy of the notice to six police officers - who are referred to at the end of the notice - the impression is created that complainant is an criminal and intention is, police officer may take criminal action against the complainant.
4. Complainant filed the complaint before the JMFC court, Surat alleging that by issuing notice with above-referred contents, the petitioner has committed an offence under Section 500 of IPC. The learned trial court has sent the complaint for inquiry. Upon receiving of police report, the learned trial court has passed the order under challenge below Exh.1.
5. Heard learned Senior Advocate Mr.R.S.Sanjanwala assisted by learned advocate Mr.A.V.Thakkar on behalf of petitioner and learned APP Mr.K.P.Raval for respondent No.1 Page 3 of 14 R/CR.MA/16964/2008 JUDGMENT
- State of Gujarat. Complaint, though duly served, has not engaged any advocate and has remained absent.
6. Learned Senior Advocate Mr.R.S.Sanjanwala apprises the Court to the facts of the case and has referred to the relevant material on record. It was submitted that there is no case of offence of defamation even prima facie. It was submitted that giving of notice by an advocate on behalf of his client, does not amount to 'making' or 'publishing'. Shri Sanjanwala has drawn attention to a decision of this Court in the case of Varshaben Devendrabhai Patel & Ors. v. State of Gujarat & Anr., reported in 2007 Cri.L.J. 2877 (Guj.) and also to a decision of the Supreme Court in the case of K. Khushboo v. Kanniammal & Anr., reported in 2010 (2) GLH 334.
7. In Varshaben Devendrabhai Patel's case (supra), the complainant was a teacher. The petitioners before this Court were trustees and office bearers of the school. The complaint of the complainant was two fold; firstly, the defamation is made in oral and secondly, it is in the form of letter of termination of services. As to the former, it was the say of the complainant that petitioners were saying in presence of others that complainant did not know anything and she is very harsh to the young students. It was alleged that such a derogatory statements were made in presence of other teachers and parents of the students. In letter of termination, it was alleged that complainant is not behaving properly with the parents and she is imposing corporal punishment upon the students. Demanding explanation by the complainant about allegations, complainant was said to have told - Is she Page 4 of 14 R/CR.MA/16964/2008 JUDGMENT attending the school for teaching or for flirting, and that she was told that it is not a 'fashion parade'. It is interesting to note that news of termination of her services was published in dailies. On these allegations, complaint of defamation was filed. Petitioners were praying for quashing of the complaint. In that case also, complainant did not turn up before this Court. Allowing the petition, this Court has held in Para.6 as under :
"6. It was seen from bare perusal of the complaint that the complaint as well as the statement on oath recorded below were vague and details were left to be filled up. There is no gainsaying the fact that the teacher was discharged from service expressly on the ground of her record of unsatisfactory service. After the allegations of defamation by spoken words in presence of unnamed teachers or parents, it is not even alleged that the words were intended to or did harm her reputation. The complainant appears to be mainly relying upon the words used in the letter terminating her service, and the words used in the letter of termination, even if assumed to be defamatory, were communicated to her only. Therefore, such communication would be covered by Explanation (4) since the imputation could not lower the moral or intellectual character of the complainant, or, by itself, lower the character in the estimation of others. The remaining allegations about asking of questions by the petitioners, who were managing a school, about the behaviour of the complainant could not be termed as defamatory in so far as the petitioners were entitled to question the teacher if her behaviour was found to be questionable. Thus, in short, it clearly appears that the complainant had set the machinery of criminal court into motion only with a view to take revenge against termination of her service and, taking the allegations even at their face value, the complaint did not make out or disclose an offence for which the petitioners could be tried. In this view of the matter, the petition is required to be allowed and accordingly it is allowed with the direction that the proceedings of Criminal Case No.10322 of 1995 pending in the court of learned Judicial Magistrate First Class, Surat are quashed. Rule is made absolute with no order as to costs. (emphasis in original) Page 5 of 14 R/CR.MA/16964/2008 JUDGMENT
8. In the present case, the court had sent the complaint for police inquiry. Police has filed a report dated 16.8.2007. Police has reported that complainant on being asked by police has not given any statement and has stated that police may proceed accordance with law. On receipt of the report, court has issued notice to the complainant. Complainant had given statement before the court referring the allegation made in the notice and has also produced one leaflet alleging that present petitioner is circulating this leaflet among the public and leaflet contains the defamatory allegation. Complainant has also examined one Mansukh Bavisiya, who had stated before the court that on reading the contents of the notice, prestige of complainant is lowered in his - the witness - eyes and now, he is not giving respect to the complainant. He also says that he has reduced the relationship with the complainant. Considering the record of the case, learned trial court concluded that complainant at this stage is not required to establish his case beyond doubt. The learned trial court was of the view that complainant has brought on record the evidence in support of the say about defamation. Holding so, it ordered to issue the summons.
9. Essential ingredients of offence of defamation are, thus;
(i) Making or publishing any imputation concerning any person; (ii) such imputation must have been made by (a) words, either spoken or intended to be read; or (b) sign etc. and (iii) such imputation must have been made with the intention of harming or with knowledge or reason to believe that it will harm the reputation of the person concerned.
10. As far as back in 1884, issue as to what constitutes Page 6 of 14 R/CR.MA/16964/2008 JUDGMENT defamation came to be referred to Five Judges Bench in Queen-Empress v. Taki Husain, reported in 1884 All WN
340. This case is referred by this Court in Varshaben Devendrabhai Patel's case (supra). The question referred to the Full Bench of Allahabad High Court was, thus;
"Assuming for the purpose of argument, that the matter contained in the notice sent by the applicant to Basawan Singh was defamatory in the sense of Explanation (4) to Section 499 of the Indian Penal Code, in that none of the Exceptions provided under that section can be established, then was the action of the applicant in sending the notice in a closed cover by post to Basawan Singh such a making or publishing of the defamatory matters as to constitute an offence within the meaning of Section 499 of the IPC?"
11. In the present case, defamation is alleged for the act of giving notice by the learned advocate of the petitioner. The contents of the notice found to be objectionable and defamatory by the complainant. At the time of hearing, learned Senior Advocate Mr.Sanjanwala submitted that mere issuance of notice by the advocate to the party does not amount to publishing and therefore, party cannot complain of defamation on account of such legal notice. Essential ingredients of defamation is referred above. On perusal of it, it would appear that even 'making' of imputation concerning any person would attract the offence of defamation. The provision gives impression that 'publishing' is not necessary in the sense that even making of imputation concerning any person would fall within the mischief of this provision. In other words, 'making' itself - as distinct and independent from 'publishing' - brings the act within this provision of the Act. This aspect is considered in Queen-Empress's case (supra). It Page 7 of 14 R/CR.MA/16964/2008 JUDGMENT would appear from the question framed for consideration of Full Bench, that in that case, issue arose for consideration on account of issuance of notice by the advocate - as in the present case. Therein, Mahmood,J., in separate concurring opinion, has observed that the imputations communicated to the prosecutor only, could not be treated as defamatory. A man's opinion of himself cannot be called his reputation. Petheram, C.J. observed that, if the illustrations to Section 499 were looked at, they all deal with such communications only as are made to third persons. A man has no reputation to himself and therefore, the section does not make an act of this nature a crime. It follows that sending of the letter was not 'making' or 'publishing' an imputation within the meaning of Section 499.
12. It may be stated that in the present case, the grievance of the complainant is, notice in question in the end alleges that copy is sent to nine persons named therein. The notice contains designation of six police officials at Surat plus three private persons. They are; (i) Pradip Tamakuwala (ii) Praful Rakholiya and (iii) Mansukhbhai (Manubhai) Chhaganbhai Bavishiya. It was rightly pointed out at the time of hearing that there is nothing on record to suggest that in fact, notice was dispatched to all these persons. Beside that, assuming for the sake of argument that this notice - copy of this notice - is deemed to have sent to those persons including to three private persons, these three private persons are none else but they are the persons against whom allegation made in the notice as to forming unlawful / anti-social assembly. In fact, one of them i.e. Mansukhbhai Bavishiya has, at the time of issuance of process, deposed in favour of complainant, to Page 8 of 14 R/CR.MA/16964/2008 JUDGMENT which reference is made hereinabove and thereafter, later on, he has filed an affidavit contrary to the statement given by him before the court. Copy of the affidavit is placed on record by the petitioner along with his affidavit. This apart, forwarding the copy of notice to the persons against whom the allegation is made in the notice in the circumstances of the case cannot be said to be 'publishing, causing defamation'.
13. As to the forwarding of the copy to the police officials, it may be stated that had it not been a notice issued by the advocate but, some other mode of written communication then, the matter would have been different. The notice issued by the advocate on behalf of his client makes all the difference. Police Officials are not unaware of degree of freedom enjoyed by the advocate in exchange of notice correspondence. It is natural and obvious that said notice would totally go unnoticed by the police officer in the sense that notice would hardly 'read' by police. In any case, there is no material that in fact, this notice was dispatched to any of the parties referred to in the notice.
14. As to the circulating of leaflet by the petitioner, it was pointed out at the time of hearing that leaflet does not contain any defamatory allegation in the same. Copy of the leaflet is on record. That being so, circulation of leaflet is immaterial. Learned Senior Advocate Mr.Sanjanwala has also drawn attention to a decision in the case of B.P.Bhaskar v. B.P.Shiva, reported in 1993 Cri.L.J. 2685 (Madras). Therein also, a question arose on account of reply to the notice sent by the party's advocate. The question was, whether it would amount to 'publication' or not. Relying on Kerala High Court' Page 9 of 14 R/CR.MA/16964/2008 JUDGMENT judgment in the case of P.R. Ramakrishnan v. Subbaramma Sastrigal, reported in AIR 1988 Ker. 18, it was held that it does not amount to publication.
15. Learned Senior Advocate Mr.Sanjanwala has also drawn attention to S. Khushboo's case (supra). Considering the contents of alleged defamation, it was held that "... there is neither any intent on the part of appellant to cause harm to the reputation of the complainants nor can we discern any actual harm done to their reputation. In short, both the elements i.e. mens rea and actus reus are missing. ..."
16. It may also be noted that issuance of legal notice by an advocate on behalf of his client would always be without mens rea - unless the intention is otherwise. The advocate enjoys considerable liberty in this regard. As to the imputation made therein, complainant in his complaint says that two murder cases to which the notice refers, one of the murder case is subjudice and in another case, he is only witness. No clarification or comment offered on other allegations. In the circumstances of the case, strong expression used in the notice cannot be said to be amounting to defamation within the meaning of Section 499.
16.1 How one reminds quote of Charles Barkley.
"My initial response was to sue her for defamation of character, but then I realized that I had no character".
16.2 Defamation, generally speaking, takes place in either of two ways; one by libel or by slander. If it is defamation by Page 10 of 14 R/CR.MA/16964/2008 JUDGMENT verbal or spoken word then it is slander and if it is by written or printed word then it is known as 'libel'.
17. Two incidental points surfaces in the present case; one, degree of advocate's freedom in issuance of notice on behalf of his client and second, is reputation. As to the reputation, recently, the Supreme Court - though in a different context - has held in the case of Om Prakash Chotala [(2014) 5 SCC 417] as under :
"Reputation is fundamentally a glorious amalgam and unification of virtues which makes a man feel proud of his ancestry and satisfies him to bequeath it as a part of inheritance on posterity. It is a nobility in itself for which a conscientious man would never barter it with all the tea of China or for that matter all the pearls of the sea. The said virtue has both horizontal and vertical qualities. When reputation is hurt, a man is half-dead. It is an honour which deserves to be equally preserved by the down trodden and the privileged. The aroma of reputation is an excellence which cannot be allowed to be sullied with the passage of time. The memory of nobility no one would like to lose; none would conceive of it being atrophied. It is dear to life and on some occasions it is dearer than life. And that is why it has become an inseparable facet of Article 21 of the Constitution. No one would like to have his reputation dented. One would like to perceive it as an honour rather than popularity. When a court deals with a matter that has something likely to affect a person's reputation, the normative principles of law are to be cautiously and carefully adhered to. The advertence has to be sans emotion and sans populist perception, and absolutely in accord with the doctrine of audi alteram partem before anything adverse is said."
17.1 In the above-referred case, on reputation the Supreme Court has referred to and relied upon the decisions in case of in Umesh Kumar v. State of A.P.,(2013) 10 SCC 591, Kiran Page 11 of 14 R/CR.MA/16964/2008 JUDGMENT Bedi v. Committee of Inquiry, (1989) 1 SCC 494, D.F. Marion v. Davis, reported in 217 Ala 16, Vishwanath Agarwal v. Sarla Vishwanath Agarwal, (2012) 7 SCC 288 and Mehmood Nayyar Azam v. State of Chhattisgarh, (2012) 8 SCC 1.
18. Say of Mansukhbhai Bavishiya that he has reduced the relationship with complainant and now, the complainant's reputation is lowered in his eyes and that now, he is not giving respect to the complainant is such that either it can be said to be comic or absurd but, certainly it is not a legal material on which reliance can be placed. It may be recalled that in the notice in question, it is alleged that this witness also is a member of assembly of anti-social persons formed by the complainant. Further, the very fact that the witness has come forward to support the say of the complainant itself is a gesture of a respect the witness has shown towards the complainant. What is required is 'evidence' pointing contrary to that.
19. As to the degree of advocate's freedom in issuance of notice, as observed above, an advocate enjoys good degree of freedom. He may use the strong expression. In advancing case of his client, advocate may have given coloured version of the case or recipient of the notice may find therein twisted presentation or invented meaning. Notice may contain dangerous half truth or mischievous exaggeration. Aim is more or less served if it irritates the recipient of the notice by crude way of assertion. The advocate may set up false defence in the notice. The contents of the notice may be blunt, arrogant and rough. All such 'deviations' - if one put that way
- in the notice may stand to the scrutiny against allegationof Page 12 of 14 R/CR.MA/16964/2008 JUDGMENT defamation, if the focus is on the purpose of giving notice i.e. reasons for issuance of notice. It is so because intention is the test. If focus is shifted from the 'purpose' or 'cause' of issuance of notice and purpose is to malign the person to whom the notice is addressed then person concerned may have to face music for abuse and misuse of freedom by the advocate.
20. It is interesting to refer English instance on freedom of expression. It relates to Lord Denning. Denning is considered as phenomena in the history of common law. He had an occasion to pass an order in Granda's case. It happened, thus; A man presumably in higher up position in British Steel Corporation has leaked out documents of 'high confidentiality' to Granda. That man went underground and had never caught. Granda had telecast that information. In the litigation followed by telecasting of information, Corporation had prayed before the Court for disclosure of name of that person
- 'Mole'. Granda refused to disclose the name on the ground of freedom of press. The issue came to be considered by Denning,J. He had held that freedom is available to the press only to the extent that it acts responsibly. That the press should deserve the freedom and it must show itself worthy of it. Freedom of press is recognized to that extent and with that rider. The decision had created quite stir. Michel Foot, politician said that Denning is an ass. The Observer came with headline article 'Why Denning is an ass'. How Denning,J. reacted to this? He said that had it happened in earlier time, press may have hauled up for contempt of court. Now the press - media - enjoys considerable freedom. Beside that, attack on a Judge in the newspaper - he said - is abuse of Page 13 of 14 R/CR.MA/16964/2008 JUDGMENT power. In the context of discussion in the case on hand, it may be bear in mind that almost abusive and unnecessarily bold expression about none other than person enjoying next to the highest position in the judicial hierarchy in England published in a newspaper. In the facts of the case, say of the petitioner has no substance. The continuation of present proceedings is abuse of process of law.
21. In view of discussions and observations, present petition deserves to be allowed and same is accordingly allowed. The complaint being Inquiry Case No.06 of 2007 pending in the Court of learned 9th Judicial Magistrate, Surat is hereby quashed and set aside. Rule is made absolute.
(R.D.KOTHARI, J.) vipul Page 14 of 14