Delhi District Court
Rieva Bhalla vs Stae on 20 August, 2011
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO: 02401R0175022011
CR NO: 24/11
RIEVA BHALLA vs STAE
U/s 500 IPC
IN THE MATTER OF (as per amended memo)
Rieva Bhalla nee Rieva Roshan Sarkar
W/o Sh. Rajesh Bhalla
rd
R/o Flat No.288, 3 Floor,
Vacant Apartments,
Vasant Vihar, New Delhi. .....Revisionist
vs
1.State (NCT of Delhi)
2.Rajesh Bhalla
S/o Sh. M.L.Bhalla
R/o C211/A, Greater Kailash, PartI,
near MBlock Market,
New Delhi. ......Respondents
REHEARING OF REVISION PETITION AGAINST THE IMPUGNED ORDER OF LD.MAGISTRATE DATED 1.5.2007 UNDER THE ORDER OF HON'BLE HIGH COURT DATED 23.2.2011 DATE OF INSTITUTION : 03.07.2007 DATE OF REMANDING BACK : 23.02.2011 DATE OF FINAL HEARING : 20.08.2011 DATE OF FINAL ORDER : 20.08.2011 ORDER ON REVISION
1. This revision is preferred against the order of Ld. Magistrate dated 1.5.07 whereby complaint preferred by revisionist U/s 500 IPC was dismissed U/s 203 Cr.P.C. The complaint was filed by the Page 1 of Revision Reiva Bhalla Vs State of 21 pages 2 revisionist herein against now respondent no.2 her husband Rajesh Bhalla. After dismissal of the complaint, this revision was filed without making Rajesh Bhalla a party. The revision was heard and decided in favour of revisionist by Ld. Predecessor of this Court on 30.7.08. This order of Ld. Predecessor was challenged by Rajesh Bhalla before Hon'ble High Court and vide order dated 23.2.2011 Hon'ble High Court set aside the above order of Ld. Predecessor and remanded the matter back for rehearing after affording Rajesh Bhalla an opportunity of being heard on merit of this matter.
2. I have heard Ld. Counsel for revisionist Sh. Umesh Gandhi and Ld. Counsel for respondent No.2 Sh. Yogesh Saxena and Ld. Addl. PP Sh. G.S.Guraya for State and have perused the revision file and Trial Court Record.
3. Brief facts necessary for disposal of this revision as per complaint are that parties to this revisionist met each other around 10 years ago and they developed friendship and love. They married each Page 2 of Revision Reiva Bhalla Vs State of 21 pages 3 other as per Hindu Rites on 16.4.2000 near Shimla without consent of their family members. When they came back to Delhi , respondent Rajesh arranged for stay of revisionist Rieva at his rd Flat No.288, 3 Floor Vasant Apartments, Vasant Vihar, Delhi by stating that he would make his family members agree for the marriage and that it would take some time. Rajesh used to join the company of Rieva off and on and stay with her as husband . But soon thereafter Rajesh got involved in a NDPS Act matter and had to remain in jail for three years. Rieva spent around Rs. 4 lacs to defend his case by engaging able lawyers ( now Rajesh stands convicted in NDPS matter with 10 years RI and fine of Rs.1 lac and his appeal is pending before Hon'ble High Court and he is out on bail). He assured Rieva that he would give the Vasant Vihar Flat to her vide his letters dated 6.2.2009 and 11.2.2009. However, due to his long detention in jail , he did not execute any deed. Due to his long stay in jail, Rajesh suffered from depression and frustration and started asking Rieva to vacate the house and also to divorce Page 3 of Revision Reiva Bhalla Vs State of 21 pages 4 him. He also started extending threats to her qua which she made complaints with police. She was constrained to file an injunction suit against Rajesh which is still pending in the Court of Ld. Civil Judge, Central District wherein Rieva has been granted adinterim stay against forcible dispossession from the Vasant Vihar Flat. (This flat was sold by Rajesh to a third party during the pendency of that Civil Suit). Rajesh also filed a private criminal complaint against Rieva for criminal trespass which is at the stage of pre summoning evidence. In response thereof Rieva filed Section 211 & 500 IPC private complaint now pending before Ld. MM in Saket Courts.
4. In the written statement filed by Rajesh to the injunction suit of Rieva , he said to have made false and defamatory allegations to the effect that since he is a drug addict, Rieva got certain photograph clicked with him and is now black mailing and extorting money from him. He also alleged in the complaint made with the police copy of which was annexed with the WS, that Rieva had Page 4 of Revision Reiva Bhalla Vs State of 21 pages 5 threatened him with false implication in a molestation / rape case in case he does not pay money to vacate the flat. Rajesh is also alleged to have accused Rieva of theft of household articles. Considering these allegations / insinuations to be defamatory, she preferred a complaint U/s 500 IPC on 13.11.2006.
5. She led her pre summoning evidence by examining herself as CW1 apart from examining her servant CW2 Ganesh. After hearing the revisionist Rieva, Ld. Magistrate passed the impugned order dated 1.5.07 whereby he dismissed the complaint of Rieva U/s 203 Cr.P.C. Aggrieved by this order, she filed the revision as detailed supra.
6. While opening his submissions, the first plea taken by Ld. Counsel for revisionist is that Ld. Magistrate erred in squarely relying on S.P.Satsangi's case in so far as the said case was an off shoot of a divorce petition between a couple where the ground of divorce was cruelty. It is submitted that there is no matrimonial litigation between the parties even though Rieva is claiming to be legally Page 5 of Revision Reiva Bhalla Vs State of 21 pages 6 wedded wife of Rajesh while Rajesh has always denied the same. Till date she has never filed any suit for being declared a legally wedded wife or exercised the right of being a wife viz. maintenance etc.
7. The specific portion of the text as detailed in the complaint has been so lifted form the written statement as well as complaints written to Police Authority and criminal complaints made to the Court. As far as judicial proceedings are concerned, the law is well settled that there is no blanket absolute privilege as far judicial proceedings are concerned . At the onset it would be appropriate to evaluate the existing legal position qua defamation in Legal Proceeding.
8. In a matter of absolute privilege the word "privilege" as defined in Ratan Lal and Dheeraj Lal , The Law of Torts, reads " privilege means that a person stands in such relations to facts of the case that he is justified in saying or writing what would be slanderous or libelous in anyone else". The phrase absolute privilege is defined Page 6 of Revision Reiva Bhalla Vs State of 21 pages 7 as " a statement is absolutely privileged when no action lies for it even though it is false and defamatory, and made with express malice." This definition refers to Parliamentary proceedings and judicial process where man is supposed to speak out his mind fully and frankly without fear of consequences in the interest of society.
9. As far as definition of Defamation is concerned, " Park B in Parmiter V. Coupland (1840) 6 M & W 105 at 108, defamation by Libel is defined as :
"A publication... which is calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule."
10.However, this definition was not considered to be sufficient. In Tournier V. National Provincial and Union Bank of England (1924)1 KB 461 Scrutton LJ said:
"I do not myself think this ancient formula is sufficient in all cases, for words may damage the reputation of a man as a business man, which no one would connect with hatred ridicule or contempt."
11.Lord Atkin too, not only in Tornier's case (supra) but in Sim v. Stretch (1936) 2 All ER 1237, also expressed the view that the Page 7 of Revision Reiva Bhalla Vs State of 21 pages 8 definition of Parke B seemed to be too narrow.
12.As per Hon'ble Delhi High Court in case titled , " Ram Jethmalani Vs. Subramaniam Swamy" 2006 AIR (Delhi)300 observed :
"Defamation is a public communication which tends to injure the reputation of another. What statements are defamatory and the span of defences varies from jurisdiction to jurisdictions but there is common agreement in all jurisdiction that statements that are unflattering, annoying, irksome, embarrassing or hurt one's feelings are not actionable. Common element in all jurisdictions is the potential to injure the reputation."
13.As far as Privilege is concerned, it was vehemently argued by Ld. Counsel for respondent that since these allegations were made in relation to judicial proceedings, there is an Absolute Privilege available to accused. In support of his plea he has relied on "Ashok Kumar Vs. Radha Kishan Vij & Ors. " 1983 (1) R.C.R. (Criminal) 321. In this judgment single Judge Bench of Hon'ble High Court while dealing with complaint under Section 499/500 IPC it was observed :
Page 8 of Revision Reiva Bhalla Vs State of 21 pages 9 " Defamation is and has always been, regarded as both a civil injury and a criminal offence. The person defamed may pursue his remedy for damages or file a criminal prosecution. Or he may concurrently both sue for damages and prosecute, as the petitioner has done. The petitioner brought a civil suit for recovery of damages. He also filed this criminal complaint under section 500 IPC. Both in civil law and crime the person defamed can vindicate his honour. Harm to the reputation is the common ground. In civil action the defendant pays compensation for vilification of the plaintiff. In criminal prosecution the law punishes him for the offence of defamation. Many people think that the civil law is simply inadequate to deal effectively with same of the most obnoxious types or defamation: in particular poisonpen campaigns by cranks, and character assassination' purposeful attempts to harm people by spreading deliberate lies about them to the police, their family or their acquaintances (Reshaping the Criminal Law by P.R. Glazebrook (1978) .Anomalous as it may seem, the law of tort of defamation is different from the criminal law of defamation in this country. In the law of tort we follow the English Law. The civil liability for defamation to pay damages is not governed by any statue law but is determined with reference to the principles of justice, equity and good conscience which have been imported into this country from the English Law."
"In civil actions for damages there is what has Page 9 of Revision Reiva Bhalla Vs State of 21 pages 10 been called "judicial privilege". Neither party, witness, counsel nor judge can be sued civilly for words spoken or written in the course of any proceeding before any court or tribunal recognised by law, and thus though the words written or spoken were written or spoken maliciously without any justification or excuse, and from personal illwill and anger against the person defamed. This absolute privilege has been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech should exist. The freedom of communication is of such paramount importance that civil suits for defamation cannot be entertained at all."
14.Incase titled, "Chunni Lal Vs. Narsingh Das" AIR 1918 Allahabad 69 Full Bench wherein it has been held:
" Statements, if defamatory, contained in a petition addressed to a Magistrate, might not be absolutely privileged for a criminal court, but the privilege was absolute in a Court of civil jurisdiction."
15.Another judgment relevant is "AIR 1962 PATNA 229" while dealing with a case it was observed:
"It may well be that if the information is found to be false and to have been actuated by malice, the informant is criminally liable for defamation under Section 499 of the Penal Code or even civilly liable under certain circumstances to pay damages for Page 10 of Revision Reiva Bhalla Vs State of 21 pages 11 malicious prosecution but he must be held to enjoy the absolute privilege and protected from civil liability for defamation on such a statement."
16.In case titled further relied by respondent "Bashirulhuq Vs. State of West Bengal", AIR 1953 SC 293 (295) it was observed, "With the authoritative pronouncement by Supreme Court the law may be said to be settled and indisputable. A party to a judicial proceeding enjoys only qualified privilege because that is what is statutorily enumerated in the nine exceptions to section 499. No absolute privilege can be claimed. That is available in the common law."
17. In support of this plea Plaintiff has relied on case titled as " Ram Jethmalani Vs. Subramaniam Swamy" 2006 AIR (Delhi)300 wherein it was ruled, " Even the issue of absolute privilege has remained a subject matter of considerable debate. Is absolute privilege absolute in the sense of being infinite As late as 1998, in the decision reported as 1998(1) All ER 625, Waple v. Surrey Country Council, it was held:
The absolute privilege which applies to statements made in the course of judicial or quassijudicial proceedings and in the documents made in such proceedings, would only be entitled where it was strictly necessary to do so in order to protect those Page 11 of Revision Reiva Bhalla Vs State of 21 pages 12 who were to participate in the proceedings from being sued themselves.
Then decision brings out that absolute privilege is not absolute in the context of being infinite. Even when the occasion is privileged one gets no license to utter irrelevant and scandalous things unrelated to the proceedings. If what is stated is necessary or relevant to the proceedings, immunity would be absolute." ( Emphasis supplied by me)
18.In another case titled , " State Vs. Shree Gopal @ Mani Gopal"
MANU/DE/1918/2009 Division Bench of Hon'ble High Court while dealing with a Death Reference made an obitor remark as under :
"Absolute Privilege has been recognized as a defence, to protect witnesses to speak without fear while deposing in Court at the cost of sacrificing a complete value i.e. the dignity of an individual. Even defamatory statements made by witnesses in Court,subject to the statement being relevant to the inquiry before the Court, have been held to be nonactionable, even if the maker of the statement cannot make good the same."
(Emphasis supplied by me)
19.In case titled , "Most.
Kalawati Devi Vs. Ambika Bhagat "
MANU/BH/0191/1999 Single Bench of Hon'ble Patna High Court observed:
Page 12 of Revision Reiva Bhalla Vs State of 21 pages 13 " On the question of defining the limits to the doctrine as regards the Statement made by the witness on oath in judicial proceedings it is made to know the statement to the privilege must be made by witness on oath in judicial proceedings, it is important to note the statement to the privileges must be made in accordance and with reference to the judicial proceedings. If the offending statement has no connection with the proceedings and is made without reference to these proceedings; the person making them cannot claim privilege."
"The statement, in order to be privileged, need to be relevant, in the sense of having a material bearing upon the matter in issue in the case. Thus, the statement of a witness is privileged, even though inadmissible as evidence, and even though so immaterial that no prosecution for perjury would be possible in respect of it. Nevertheless the statement, though it need not be relevant in this sense, must, it would seem, be made in the course of and with reference to the case in hand. A Judge who forms the bench makes a defamatory observation in Page 13 of Revision Reiva Bhalla Vs State of 21 pages 14 respect of some entirely extraneous matter would no longer be speaking in his capacity as a Judge, and would have no privilege."
" In the present, case, the defendant without rhyme or reason or justification brought false and malicious allegation against the appellant, who was a respectable lady. The allegation was not at all relevant during the inquiry under Section 144 Cr.
P.C. There is no doubt divergence of views in the High Courts on the question of absolute privilege.
None of the cases have dealt with the similar situation as in the present case. Here a defamatory statement was made by a party in a criminal proceeding. In the facts and circumstances of the case, the plea of absolute privilege cannot be successfully raised. I, therefore, hold that the appellate Court erred in holding that the damages could not be awarded to the plaintiff as the defamatory statement was absolutely privileged."
(emphasis supplied by me)
20. While not touching the issue of statements made by the witnesses, Page 14 of Revision Reiva Bhalla Vs State of 21 pages 15 during the course of trial, Hon'ble DB restricted itself to the defamatory allegation made in pleadings. It is further observed:
"So far as defamatory statements in pleadings are concerned, the actual decisions in our Court (that the exception of only one case ) are in favour of the view that they are not absolute privilege, though there are obiter dicta in some cases to the contrary."
21.In case titled , "Shibnath Vs. Sat Cowri Deb 3 W.R. 198" where false defamatory charges were made in a transfer petition to a case against the Munsif it was ruled that " They are not privileged".
22. In Case titled, " Auguda Ram Shaha Vs. Nemai Chand Shaha 23 C 867" it was held that a defamatory statement made in a judicial proceedings are not absolutely privileged in this country.
23.In Dhiro Koch & Anr. Vs. Gobinda Dev Mishra Bura Satria"
it was also ruled that:
The present case illustrates how the privilege can Page 15 of Revision Reiva Bhalla Vs State of 21 pages 16 be and is abused. The plaintiff was not party to the suit in which defendants made a defamatory statement. The statement was absolutely irrelevant and was made out of malice. We think, however, that pleadings of parties stand on a different footing from statements made on oath by witnesses..... a witness can be compelled to give evidence and to answer any question relevant to the subject matter of the suit but the statements of a party in his pleadings are entirely within its own discretion...... we are of the opinion that defamatory statements made by parties in pleadings are not absolutely privileged. (emphasis supplied by me ).
24.The above catena of judgments indicates that different stands were taken by different High Courts. The old School of thought which was inconsonance with English Law laid that no Civil Suit can be filed as against defamation emanating from judicial proceedings. This school of thought was followed by even Delhi High Court in Ashok Kumar Case as detailed supra in 1983. Even the Page 16 of Revision Reiva Bhalla Vs State of 21 pages 17 observations of Ld. Single Judge in that judgment were obiter in so far as the matter reached the High Court as an off shoot of a criminal complaint under Section 499500 IPC. This situation remained static up to 2006 when in Ram Jeth Malani's case in another obiter Hon'ble Delhi High Court concluded that the Absolute Privilege in Civil defamation is not absolute or infinite. This judgment was an obiter because it pertained to a defamation committed under Commission of Inquiries Act which is not on the same footings as a judicial proceedings.
25.The latest observation from the Delhi High Court is yet another obiter in the Division Bench Judgment in Shree Gopal @ Mani Gopal case where it was observed that the statement made during a judicial proceeding should be relevant before the defence of absolute privilege is permitted. In Ram Jeth Malani's matter Hon'ble High Court also referrred to an indicative change in the English Law in so far as in the cited 1998 Wapel Case where the English Judged ruled that only those statements are covered Page 17 of Revision Reiva Bhalla Vs State of 21 pages 18 under absolute privilege which are strictly necessary in the facts and circumstances of that case.
26.As such it can be concluded that as far as Delhi is concerned, the last two obitors as detailed supra shall prevail over the obiter as contained in Ashok Kumar case of 1983 for being later in time and also for being from a larger Bench .
27.In the light of aforesaid case laws , it can be safely deduced that whether the permissible line of qualified privilege has been breached or not depends on the fact and circumstances of each case. It has to be seen as to whether the language used in a complaint to Statutory Authority or during the Court Proceedings was such which was strictly necessary in the facts and circumstances to plead or defend the matter.
28.In the case in hand , the nature of litigation between the parties was a simple suit for injunction against forcible dispossession. While doing so , respondent Rajesh pleaded that " it is submitted that respondent (Rajesh) is a drug addict and under the Page 18 of Revision Reiva Bhalla Vs State of 21 pages 19 influence of drug, applicant (Rieva) has got photographs with respondent (Rajesh) with the object to blackmail and extort money from him." Upon being asked, Ld. counsel for respondent has conceded that Rajesh has never made any complaint to any authority that he is being actually black mailed by Rieva in any manner. He also has no letter or any other text or witness to show that Rieva ever demanded money under a black mailing tactic or ever tried to extort money from him by using the said photographs. LD. Defence Counsel has relied on 94(2001) DLT 913 wherein under similar circumstances Hon'ble High Court quashed the summoning order which was issued by Ld. Magistrate while concluding that : " the imputations contain were so made in good faith. The actual word used in the cited case law are the complaint of complainant is wholly false , mischievious and black mailing tactics. "
29.In my considered view the accusations made by the respondent Rajesh against Rieva traveled much beyond what are referred to in Page 19 of Revision Reiva Bhalla Vs State of 21 pages 20 the above judgment in so far as he accused Rieva of not only black mailing but also of extorting money from him. He also accused her of theft of his articles apart from sale and misappropriation thereof. Even though letters admittedly written by him to Rieva during his three years period in jail in the NDPS Act matter, he specifically nd rd mentioned " flat 288 is all yours 2 and 3 floors" as available on record as Ex.CW1/D. Rieva has pleaded to have spent around Rs.4 lacs in defending Rajesh in engaging best of the lawyers available but still Rajesh claimed that she has sort of broken into her house and it amounts to Criminal Trespass. This was written by Rajesh in the backdrop of the fact that as per Rieva , Rajesh himself allowed to stay therein.
30.In the order passed by Ld. Predecessor on 30/7/08 there is a mention of case titled Surender Mohan Vikal vs. Aschraj Lal (1978) 2 SCC 403 wherein it has been ruled that:
" period of limitation of a defamation case starts from the date of publication of the defamatory material."
31.As such it can not be expected of revisionist Rieva that she has to Page 20 of Revision Reiva Bhalla Vs State of 21 pages 21 await the decision of criminal case before taking any remedial step U/s 500 IPC. Even otherwise at the stage of summoning of accused, it is a settled legal proposition that only sufficiency of the material has to be ascertained t and it is not expected of the Court to weigh and sift the material to ascertain whether it would result in case of conviction or not.
32.For the foregoing reasons, I have no hesitation in concluding that impugned order of Ld. Magistrate dated 1.5.07, can not be sustained in fact as well as law. Same is accordingly set aside. Accused has already appeared before Ld. Magistrate. He shall continue to appear and face trial U/s 500 IPC as there is sufficient material to summon him. Revision stands disposed off, file be consigned to RR. Anything which has been observed herein this order on revision shall have no bearing on the merits of the case before Ld. Trial Court. TCR be sent back with the copy of order.
Announced and dictated in open
court on: 20.8.2011 (SURINDER S. RATHI)
Addl. Sessions Judge02
Central : Delhi
Page 21 of Revision Reiva Bhalla Vs State of 21 pages