Bombay High Court
Virendrabhai M. Chandalia And Amritlal ... vs Mohan Kanayalal Parwani And State Of ... on 27 September, 2002
Equivalent citations: 2003(4)MHLJ335
Author: J.G. Chitre
Bench: J.G. Chitre
JUDGMENT J.G. Chitre, J.
1. Heard the counsel for the parties.
2. The petitioners are hereby assailing correctness, propriety and legality of the order which has been passed by the Joint Civil Judge and J.M.F.c. Ulhasnagar in Criminal Case No. 66 of 1995 taking cognizance of the complaint by the Respondent No. 1 in respect of the offences punishable under the provisions of Sections 500, 504, 506, 828 of IPC.
3. Shri Jain submitted that there was a civil suit between the petitioners and respondent No. 1 and in the said civil proceeding, respondent No. 1 had paid a sum of Rs. 39,507/- as part payment. Shri Jain submitted that the present prosecution which has been challenged by this writ petition is the outcome of that because the respondent No. 1 wants to take revenge. he further submitted that the said prosecution has been initiated by respondent No. 1 as a defence for his liability of paying the amount to the petitioners. He prayed that the said proceedings be quashed.
4. Shri Mulchandani submitted that the learned Magistrate is correct in taking the cognizance of the complaint of respondent No. 1 because offences indicated above have been spelled out by the said complaint. He submitted that the present complaint is an independent matter and has got no concern whatsoever with the said civil suit. Shri Mulchandani prayed that this petition be dismissed.
5. Shri Shringarpure submitted that the legal order may be passed by this court. The State has nothing more to say.
6. Section 499 gives the definition of defamation which is punishable under Section 500 of IPC which requires that the accused should by words either spoken or intended to be read or by signs or by visible representations, should make or publish any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation would harm, the reputation of such person. Here, in the complaint which has been filed by respondent No. 1, no such allegation has been made. It has not been averred by the respondent No. 1 that the said spoken imputations were intending to harm his reputation or the petitioners were knowing or having reason to believe that such imputation would harm his reputation. Thus, no offence punishable under Section 500 is spelled out.
7. The learned Magistrate has committed that error of law in issuing the process against him in respect of that offence.
8. Section 504 of IPC reads as follows :
"504. Intentional insult with intent to provoke breach of the peace-- Whoever intentionally insults, and thereby given provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
It indicates that the accused should insult the complainant and should thereby give provocation to complainant or any person, intending or knowing it to be likely that such provocation would cause him to break the public peace or to commit any other offence. The complaint in question does not show any ingredient which has been indicated by Section 504 of IPC. He has not taken care of mentioning the words spoken by the petitioners, which according to him, were intending to insult him. For spelling out an offence indicated by Section 504 IPC exact words alleged to have been uttered have to be mentioned in complaint. He has not made any averment in the said complaint that by hearing those words spoken he was provoked and that too to such an extend that there was likelihood of he committing breach of public peace or any other offence. In the absence of that, the learned Magistrate was totally wrong in taking the cognizance of the complaint of the complainant against the petitioners in context with an offence publishable under Section 504 of IPC, as commission of that offence cannot be said to be made out by present complainant.
9. Thus, the process issued against the petitioners in respect of the offences punishable under Sections 500 and 504 of IPC stands quashed.
10. The learned Magistrate to proceed against the petitioners in respect of the offences punishable under Section 323 and Section 506 of IPC. The Petitioners are entitled to put their defence. Thus the petitioner stands disposed of. No order as to costs.
11. The petitioned and respondents are directed to appear before the said trial Court on 17.10.2002 at 11.30 am.
12. Parties to act on an ordinary copy of this order duly authenticated by the Private Secretary of this Court.