Karnataka High Court
S.P. Bobati And Ors. vs Mahadev Virupaxappa Latti on 19 November, 2004
Equivalent citations: 2005CRILJ692, ILR2005KAR960, 2005(1)KARLJ403, 2005 CRI. L. J. 692, 2005 AIR - KANT. H. C. R. 125, (2005) ILR (KANT) 960, (2005) 2 CURCRIR 74, (2005) 1 KCCR 354, (2005) 2 ALLCRILR 263, (2005) 1 KANT LJ 403
Author: S.B. Majage
Bench: S.B. Majage
ORDER S.B. Majage, J.
1. The respondent-complainant has filed a private complaint against 53 persons, including present petitioners, as accused in Judicial Magistrate First Class, II Court at Belgaum stating that accused 4 to 53 have committed an offence punishable under Section 500 of the IPC by publishing false and baseless imputation concerning him intending to harm him knowing full well that such imputations, if made, will harm his reputation whereas, by abetting and instigating said accused to commit said offence, the first three accused (A-1 to 3) have committed an offence under Section 109 of the IPC. After recording sworn statement of the complainant and examining a witness, the Court issued process against all the 53 accused, including the petitioners, for the offences alleged. Hence, the accused, other than accused 4, 9, 21, 33, 36, 39 to 42, 44 to 47 and 50 to 53, challenged it by filing Criminal Revision Petition No. 52 of 2004 in the Court of Sessions under Section 397 of the Cr. P.C. It came to be dismissed on 26-6-2004. Hence, petitioners are before this Court under Section 482 of the Cr. P.C.
2. When the respondent-complainant appeared before this Court, with consent of both sides, taken the matter for final hearing. Heard the complainant in person (who is Advocate) and the learned Counsel appearing for the petitioners-accused. It was vehemently argued for the petitioners that the allegations made in the complaint, when considered even with the sworn statements and documents produced, do not attract Section 500 of the IPC and as such, the learned Magistrate was wrong in issuing process, but the Sessions Court failed to appreciate it and wrongly dismissed the revision petition and hence, this Court's interference under Section 482 of the Cr. P.C. is necessary to set aside that order and quash the entire proceedings, including process issued by the learned Magistrate.
On the other hand, it was submitted by the complainant that the petition itself is not maintainable under Section 482 of the Cr. P.C. as it amounts to invoking revisional power for the second time having once invoked it under Section 397 of the Cr. P.C. before the Court of Sessions and as such, it requires to be rejected in limine. It was submitted further that even otherwise, the material on record, including the averments in the complaint, statements and documents produced clearly show a prima facie case for the offences alleged and as such, this Court at this stage should not interfere with the process issued. Perused the records carefully.
3. The points that arise for consideration are:
(1) Whether the petition is maintainable under Section 482 of the Cr. P.C?
(2) Whether interference by this Court is necessary?
4. Point No. 1.--In support of his argument that the petition itself is not maintainable under Section 482 of the Cr. P.C. after dismissal of petition filed under Section 397 of the Cr. P.C. by the Sessions Court, the complainant has relied on a decision of this Court in the case of Smt. Hemalatha Ramesh v. H.N. Muddu Krishna, 1999(2) Kar. L.J. 99 : ILR 1999 Kar. 835.
5. On the other hand, in support of his argument that even after the disposal of revision petition by the Court of Sessions under Section 397 of the Cr. P.C, this Court could exercise its inherent power under Section 482 of the Cr. P.C, the learned Counsel for the petitioners has relied on the decisions of the Supreme Court in the cases of State through Special Cell, New Delhi v. Navjot Sandhu, , Krishnan and Anr. v. Krishnaveni and Anr., and also an unreported decision of this Court in the case of Sri Siddiq Mohiddin Faisal and Ors. v. Dr. Kshounish Chandranag, Cri. P. No. 575 of 1996, DD: 11-7-1997.
6. At the outset, it may be noted that the decision of this Court in the case of Smt. Hemalatha Ramesh, relied on by the complainant is against the proposition canvassed by him because it has been held therein that even after dismissal of revision petition by the Sessions Judge, this Court can exercise its power under Section 482 of the Cr. P.C. though, of course, it requires to be exercised sparingly. Even a plain reading of Section 482 of the Cr. P.C. also shows that there is no limit on the powers of this Court to invoke its inherent power under Section 482 of the Cr. P.C. in spite of dismissal of a revision petition by the Court of sessions.
7. This Court has negatived similar argument advanced about the maintainability of a petition under Section 482 of the Cr. P.C. in an unreported decision in the case of Sri Siddiq Mohiddin and observed as under:
"11......Therefore, there is no merit at all in the submission made on behalf of the respondent that this criminal petition amounts to second revision petition, which is barred under Section 397(3). If it is an unjust order, this Court can interfere under Section 482 of the Cr. P.C".
8. Same view has been taken by the High Court of Patna in the case of Krishna Sadan Ghosh v. Govind Prasad Saraf, 1985 Cri. L.J. 1121 (Pat.).
9. That apart, in the case of Navjot Sandhu, after referring the decision in the case of Krishnan, the Supreme Court has observed as under:
"In the case of Krishnan v. Krishnaveni, , it is held that even though a second revision to the High Court is prohibited by Section 397(3) of the Cr. P.C, the inherent power is still available under Section 482 of the Cr. P.C......".
And in the case of Krishnan, the Supreme Court has observed thus:
"10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person-accused/complainant cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be, justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. . . . .".
So, no further discussion is necessary to hold that in spite of bar under Section 397(3) of the Cr. P.C. to entertain second revision petition after the dismissal of a revision petition, power under Section 482 of the Cr. P.C. could be exercised by this Court if the facts and circumstances of a case warrant to do so.
10. Points No. 2.--"Defamation" is defined under Section 499 of the IPC. It reads as under:
"499. Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing, or having reason to believe that such imputation will harm the reputation of such person, is said, except in the case hereinafter excepted, to defame that person.
Explanation 1....
Explanation 2....
Explanation 3.--No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste, or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome State, or in a State generally considered as disgraceful.
First Exception to Tenth Exceptions......".
11. So, to constitute defamation under Section 499, there must be imputation(s) and such imputation(s) must have been made with the intention of harming or knowing, or having reason to believe that it will harm the reputation of the person about whom it is made.
But, in view of Explanation 3 referred to above, unless such imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste, or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in the state generally considered as disgraceful, it does not amount to imputation under Section 499 of the IPC.
12. The word 'imputation' is not defined, but it means an accusation against a person. It implies an allegation of fact and not merely a term of abuse.
13. In the case on hand, there is no allegation or imputation about the moral or intellectual character of the complainant. So also, in respect of his caste or body. According to the complainant, as stated by him in the last para of his complaint that, because of the illegal acts of the accused, his feelings as a Senior Advocate have been much hurted and his reputation has also been effected to a considerable extent and in fact, he having felt much because of the false and baseless allegations made against him by the accused, resigned the post of official receiver for Belgaum district and thus, all the accused, except accused 1 to 3, have committed an offence punishable under Section 500 of the IPC by publishing a false and baseless imputation concerning him intending to harm him, knowing full well that such false and baseless imputation if made will harm his reputation and, by abetting or instigating said accused to commit said offence, accused 1 to 3 have committed an offence punishable under Section 109 of the IPC.
14. Defamatory words or imputation made may affect a man's character or reputation in respect of his business or calling. But, the mere fact that the words tend to injure the man in the way of his trade or profession is insufficient and would not give rise to an action for defamation. So, it is not defamatory to write and publish about a trade's man that he has ceased to carry on his business, or that his business has been, or is about to be acquired by another firm. Such a statement though likely to injure him in his business, does not reflect either on his private or in his business character or reputation.
15. However, it is defamatory to impute that a man is unfit for his profession or calling owing to want of ability or learning. So, to say about an actor that he or she cannot act, or to say about a person in respect of his profession or calling that he is incompetent or unfit for the purpose are defamatory. Similarly, a statement made against an Advocate that certain persons had engaged and reposed their confidence in him but he, after accepting the brief, betrayed their confidence and let his clients down is highly defamatory. So also if an allegation or imputation is made touching his honesty, or integrity, or ability to conduct case, or knowledge of law, it amounts to defamation. Thus, to say that the words are defamatory in respect of his profession or calling, such words must call attention to some quality in the man that would be detrimental, or the absence of some quality that would be essential to the successful carrying out of the business or calling in which he is engaged. Keeping these things in mind, let me consider whether the allegations or imputations found in the complaint amount to defamation within the meaning of Section 499, constituting an offence under Section 500 of the IPC or not.
16. It is stated by the complainant in para 2, page 7 of the complaint that he was representing appellant in appeal No. CTS.APL. 15 of 1995 and one of the respondents in appeal No. 57 of 2000 before the accused 2-Deputy Director of Land Records, who had not passed orders even after much delay for the reasons best known to him (A-2) though, in both the matters, he had submitted his arguments and subsequently, he came to know that accused 2 has passed final orders hurriedly taking so much personal interest in some other latest cases. So, in the words of complainant:
"Because of such unfair and arbitrary nature of accused 2, the complainant on 21-8-2001 frankly expressed his total displeasure in the open Court and in the presence of many Advocates and submitted that the cases should be disposed of by looking at the face of law but not the faces of the parties. On the said day, the complainant also submitted to accused 2 that he did not want to get disposed of his one more case i.e., No. CTS.APL. 90 of 2000 due to such unfair attitude. Instead, discharging his duties fairly, this accused followed his own method and wrote number of irrelevant things in the order sheet though objected".
17. In support of it, the complainant has stated in his sworn statement also as under (in para 4):
"4. On 21-8-2001, I had a case in the office of A-2 and on that day I submitted to him that the appeals which are numbered as CTS Appeal No. 15 of 1995 and one more appeal though the arguments were heard long back, the orders have not been passed wherein in the appeals recently filed by others the matters were heard hurriedly and the orders were passed. I requested him to dispose of the matter looking at the face of law, But here in this case, he did not follow the legal provisions, and hence, I was constrained to submit in that the Appeal No. 32 of 2000 should not be heard before him because of his improper attitude. Even then he did not mention in his order sheet number of irrelevant things behind my back. On that day, there were about 15 to 20 Advocates were present. In this respect the A-2 had written a D.O. letter on the very day to A-1 with respect to my submission on 21-8-2001".
18. The complainant also relied on the letter dated 21-8-2001 written by A-2 to A-1. In that letter, it is mentioned that on 21-8-2001 at 3 p.m., when the Court started, Sri M.V. Latti, Advocate started to make 'galata' in loud voice saying that he has no confidence in the proceedings of that Court and, that Court is not acting impartially and, that in the cases relating to him, unnecessary delay is being made and as such, he (A-2) asked the complainant not to obstruct the Court proceedings telling that if there is case relating to him (complainant), necessary action will be taken about such case, then the complainant sat at a place for some time but again started to talk and hence, once again the complainant was asked, not to cause disturbance when he (A-2) is in the midst of other cases. According to A-2, though complainant became silent then, when appeal bearing No. CTS/Ap/90/99-2000 concerning to the complainant came up for hearing, complainant again started to make 'galata' repeating the words used already and as such, the Court requested him (complainant) to speak only relating to the appeal, but the complainant stating that since he has no confidence in that Court, he will not speak anything in the appeal matter and whatever he speaks be recorded in the proceedings of the appeal and did not sign the proceedings of that appeal. It was further stated in that letter that thereafter the complainant was present in the precincts of the Court till the Court proceedings were over and intermittently entered (Court hall) and disturbed Court proceedings and thereafter telling that no step be taken with regard to the case referred to above and gave a petition stating that for transfer of said case to some other Court, application will be filed before higher-ups. So, he (A-2) has brought said facts to the notice of the Joint Director of Land Records-A-1.
19. Said facts found in the letter of A-2 and what is stated by the complainant in his complaint besides sworn statement as to what happened on 21-8-2001 are substantially the same, except that what is found in the letter, that the complainant had made submissions loudly and obstructed the proceedings are not found in the complaint and sworn statement. Describing the attitude of the complainant before him by A-2 to A-1 cannot be termed as imputation or that thereby the complainant was defamed under Section 499 of the IRC.
20. As per the complainant, except accused 15, complainant and other Advocates, none of the accused from Belgaum was present in the Court of A-2 on 21-8-2001 when hearing was going on in respect of No. CTS/Apl/90/2000 and as such, under the circumstances, it must be A-2 and 15, who had informed other accused (working in the office of accused 1 and 3) about said incident with the only intention to harm his reputation. The said averment is as bald as it could be because of want of particulars namely, date, time or place of telling other accused by accused 2 and/or 15 about said incident. So, on imagination, the complainant has made allegations against accused 2 and 15. Further, it happened in the presence of many Advocates in the open Court. So, accused 2 and/or accused 15 only cannot be said to have informed other accused about said incident.
According to the complainant, giving copy of the said letter to some of the accused-petitioners also amounts to publication though, not stated who obtained copy, when. That apart, when what is mentioned in the letter is not defamation, its communication or giving copy of the letter to some of the accused does not amount to publication, particularly when what had taken place on said date is a fact admitted by complainant.
21. Nextly, it is the case of the complainant that in respect, of the indecent behaviour of the accused 38 and non-action of accused 1 to 3, he met the Director of Land Records at Dharwad camp on 29-11-2001 at about 5.30 p.m. in the office of DDLR and that was after getting appointment. However, according to complainant, in their representations, all the accused, except A-1 to 3, have made false and baseless allegations that he behaved in a most uncultured manner at the time of meeting the Director of Land Records, Bangalore at Dharwad Camp on 29-11-2001. In para 3 at page 8 of complaint, it is stated that accused 1 to 3 only were present on 29-11-2001 and as such, other accused must have come to know through accused 1 to 3 as to what happened on 29-11-2001.
Of course, in the representations, it is mentioned that on 29-11-2001 the complainant entered the room in an uncivilized manner, used abusive language against the officers, behaved indecently in a manner Advocates should not behave. So, even if what is pleaded in the complaint is believed, then also, Section 499 of the IPC is not attracted.
22. Now coming to taking out procession by accused (other than accused 1 to 3) working at Belgaum on 1-12-2001 and shouting slogans against complainant, it may be noted that what slogan or slogans came to be shouted on said date is/are not forthcoming in the complaint nor in the sworn statement of the complainant though, of course, in the statement of witness examined as P.W. 2 namely, Sri Vivek Kulkarni, Advocate, it is found that such slogans were "Latti vakeelarige dhikkara", which do not attract Section 499 of the IPC.
23. The other material on which the complainant has relied for his complaint is the representations dated 1-12-2001 and 3-12-2001 submitted to the Bar Association, Belgaum and others including the Divisional Commissioner, Belgaum. Said representations are:
(a) That the complainant has wrongly guided and wrongly informed Sri B.S. Shindhe and instigated Shindhe to make baseless allegations against the Assistant Director, Land Records at Belgaum thereby creating a bad impression about the Department among the public. It is also alleged therein that in spite of taking proper legal action by the Deputy Director of Land Records, Belgaum after making enquiry in the matter of Sri B.S. Shindhe, said Shindhe was instigated and made to file another complaint to the Deputy Commissioner, Belgaum, marking a copy of it to the Joint Director of Land Records, Belgaum. It is further stated that when the Joint Director was conducting the enquiry (proceedings) in accordance with law, said Shindhe was wrongly informed by the complainant that the Joint Director is showing partiality and causing injustice to him and as such, his appeal should not be tried or decided by the Joint Director on the ground that said Shindhe has no confidence in the Joint Director and filed a false complaint before the Deputy Commissioner, Belgaum against the Joint Director.
(b) That on 21-8-2001 during the course of the proceedings No. 90 of 2000-2001 before the Deputy Director of Land Records at Belgaum in the presence of Advocates, clients and staff in the Court, irrelevantly argued by abusive words, indecently making baseless allegations against the Deputy Director, the complainant behaved in an indecent manner, not a Senior Advocate behaves, committed contempt of Court and insulted the department officers.
(c) That on 20-11-2001 when the Director of Land Records was camping at Dharwad, at that time, the complainant entered the room in uncivilized manner without prior permission and addressed the department officers personally using abusive words and behaved indecently in a manner not an Advocate should behave.
(d) That the complainant comes to the department officers now and then and behaves in the manner he likes, causing insult to the officers and officials of the Land Records, which the employees of the department condemn.
So, requested to note said facts and take necessary action against the complainant in the interest of public and administration and also to see that the officers and officials of the Land Records Department can work smoothly.
24. In all the representations made by the accused against the complainant, the words used are "by wrongly guiding", "wrongly informing", "by irrelevant argument", "abusive language", "indecently", "baseless allegation", "not behaving in the manner required", "as liked", "insulting by abusive words, "giving up the dignity and respect of Advocates", "behaving improperly", "uncivilised, "shouted rising abusive words" and "insulted as liked".
25. The words used in the representations that Sri D.S. Shinde was "wrongly guided" and "wrongly informed" were for making complaint against the Assistant or Deputy Director of Land Records and not about giving any wrong legal advice, or guiding, or informing Shinde about the case touching complainant's capacity, or ability, or knowledge, or honesty, or sincerity as an Advocate. Similarly, other words "irrelevant argument", "abusive language", "indecent behaviour", "baseless allegations" refer the submissions made and attitude of the complainant in the proceedings before the Assistant or Deputy Director of Land Records. In my opinion, said words or language found could be said to have been used, loosely or in wrong taste.
26. Further, the said words cannot be said to be abusive words. Even if taken as abusive words, mere allegation that the accused had used abusive words or language cannot be taken to hold that the accused had used abusive words or language as the actual word(s) of abuse or abusive language is not spelled out. In this connection, reference can be had to a decision of Himachal Pradesh High Court in the case Prem Pal Singh and Ors. v. Mohan Lal, 1981 Cri. L.J. 1208 (HP) wherein proceedings initiated came to be quashed under Section 482 of the Cr. P.C. for want of actual abusive words.
So also, when neither the abusive words nor the words, which could tantamount to insult are spelled out in the complaint or in the sworn statement of the complainant, it cannot be said that by any insulting abusive words defamed the complainant.
27. Even otherwise, it is well-settled that mere use of abusive word(s) does not per se constitute defamation unless it could be construed as defamatory in nature in the given circumstances of a case. In the case of L.S. Jayappa and Anr. v. N.S. Shamegowda and Anr., 1985(1) Kar. L.J. 223 (DB): 1985 Cri. L.J. 1283 (Kar.) (DB) a Division Bench of this Court held that the words "Soolemagane - bolimagane", suggesting that complainant was illegitimate and his mother was kept mistress, as not defamatory. It is further held therein that merely because use of such words led to commotion and people gathered and the people also did not relish it, is no reason to hold that the accused, by so abusing, intended to defame the complainant or did so with the knowledge that thereby bring the complainant to disrepute or literally intended to convey that complainant was illegitimate or his mother was merely a kept mistress.
28. It is trite that when a complaint is filed for offence under Section 500 of the IPC, Court has to consider the material produced in support of it, its admissibility and circumstances and the context under which such imputation has been made besides the intention, if any, to make such imputation, and whether the accusations made can be believed to have harmed the complainant's reputation. The only effect of an imputation being per se defamatory is that it would relieve the complainant of the burden to establish that the publication of such imputations has lowered him in the estimation of the right thinking members of the public.
29. In the case on hand, the representations dated 1-12-2001 and 3-12-2001 of the accused persons, other than accused 1 to 3, were hot without any background. In fact, according to complainant himself, he had issued a legal notice dated 22-5-2001 to accused 38 on behalf of one Arjun Rao Kakatkar of Belgaum in respect of Sub-Division measurement of properties. So, accused 38 who was working then in the office of A-3, called him over phone and misbehaved in respect of said notice, though it was not his concern and as such, he was constrained to lodge a complaint before Police on 24-5-2001 besides sending a complaint separately to the Director of Land Records at Bangalore with a copy of it to accused 1 to 3 and others.
30. Further, as noted already, complainant himself had made allegations against A-2 questioning his impartiality in the presence of Advocates and others in the proceedings on 21-8-2001.
31. Similarly, it is the case of complainant that in respect of indecent behaviour of accused 38 and inaction of accused 1 to 3, he met the Director of Land Records camped at Dharwad on 29-11-2001 at about 5.30 p.m. in the office of DDLR when accused 1 to 3 and many other officials of the Land Records office were present. Not only that, even Mr. and Mrs. B.S. Shinde had also come and made complaint in the matter.
32. Said facts and circumstances under which a procession was taken on 1-12-2001 by the accused working at Belgaum shouting slogans against the complainant as "Latti vakeelarige dhikkara" and the representations were made on 1-12-2001 and on 3-12-2001 cannot be ignored in this context.
33. Simply because some words have been used about his behaviour in the proceedings before the accused 2 or his entering in the room when he went to meet the Director of Land Records, such words do not even come within the purview of abusive words much less defamatory words. Added to this, what has been narrated in the representations is the case of the complainant also against the officers and officials of the Land Records Department. The only difference is how the facts narrated therein have been described by both. May be that the statements made or words used in such representations are in bad taste, but they cannot be taken as defamatory, for which the requirements are different, as has been noted in the beginning.
34. At any rate, the allegations found and words used in the representations do not touch the moral or intellectual character of the complainant, or his character in respect of his caste, or of his profession, or of his calling, or his body. They are in respect of his attitude in the proceedings before the Assistant or Deputy Director of Land Records and his behaviour towards the officers and officials of the Land Records Department besides his conduct before the Director of Land Records. So, the representations made cannot be said to be defamatory in nature attracting Section 499 of the IPC.
35. Of course, it is the case of the complainant that he resigned from the post of official receiver for Belgaum district. But, it is not on account of anybody asking his resignation. It was suo motu by the complainant himself since, according to him, he felt much because of the allegations made against him. If the Deputy Commissioner or some other Government functionary had asked any explanation or shown inclination not to continue the complainant as Official Receiver on account of the representations made against him on 1-12-2001 and 3-12-2001, the matter would have been different, but not now. It is also not his case that his profession was effected or that his clientage has come down or his income was effected after the procession was taken against him on 1-12-2001.
36. It is true that complainant has examined an Advocate as P.W. 2 for the procession taken by accused and slogan shouted on 1-12-2001. But, he has not stated that, on account of such shouting or raising slogans against complainant, complainant's reputation was effected or lowered in any manner.
37. Thus, when considered the entire allegations made in the complaint (as they are), they do not amount to "defamation" as defined in Section 499 of the IPC effecting the reputation of the complainant when kept in mind Explanation 3 given to it.
38. Further, so far as accused 1 to 3 are concerned, they have not signed the representation dated 1-12-2001 or 3-12-2001 nor made any allegations against the complainant before any authority. Of course, accused 2 did write a letter to the accused 1 informing what happened in his Court on 21-8-2001 and nothing more than that. For that, he cannot be hauled up for defamation, particularly when what had taken place on that date and stated by him in his letter is substantially corroborated by the statement of the complainant in his complaint and sworn statement as well. Simply because the staff members working at Belgaum had left the office for the procession on 1-12-2001, it cannot be said that accused 2 permitted them to go in procession. There is no material disclosing the basis for the complainant to allege that accused 1 to 3 have abetted other accused for the representations made and the procession taken. It lacks in all particulars namely, date, time, place of abetment or instigation by them to the other accused for any of the said acts alleged by the complainant. But, on mere suspicion only, the complainant has prosecuted them (A-1 to 3).
39. Further, there is no sanction under Section 197 of the Cr. PC. to prosecute against A-1 to 3 though necessary in the case, because issuing copy or certified copy of the letter dated 21-8-2001 to the accused, if believed, was certainly an act in the discharge of their official duty and not otherwise. Decision of the Supreme Court in the case of State of Orissa and Ors. v. Ganesh Chandra Jew, , relied on by the complainant could be referred in this connection. So, on said grounds also, prosecution of accused 1 to 3 is bad.
40. Thus, no prima facie case has been made out by the complainant against the accused persons either for the offence punishable under Section 500 of the IPC or under Section 109 of the IPC. But, the learned Magistrate and also the learned Additional Sessions Judge have not considered any of the said points and whether the allegations made against the complainant amount to defamation attracting Section 499 of the IPC or not though, of course, the Court of Sessions considered the point of sanction under Section 197 of the Cr. P.C. for A-4 to A-53 and not for A-1 to A-3.
41. It is trite that issuing process against an accused for an offence can be justified only when, on examination of the complainant, witness and documents filed in support of complaint, a prima facie case is made out for the offence(s) alleged, otherwise not. When offence alleged is not prima facie made out, taking cognizance of offence is illegal. It amounts to abuse of process of Court and hence requires to be quashed, as held by this Court in the case of Prabhu Chawla and Ors. v. A.U. Sheriff, .
42. In the case of Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi, the Supreme Court has quashed the proceedings initiated against the accused for the offence under Section 500 of the IPC when the allegations made did not constitute defamation within the meaning of Section 499 of the IPC. So also, in the case of Prabhu Chawla, this Court has quashed proceedings initiated on the complaint filed under Section 500 of the IPC, when the allegations made therein did not disclose offence of defamation. Even in the case of Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors., relied on by the complainant, the Supreme Court held that where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused, or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused, Section 482 of the Cr. P.C. could be invoked.
43. Of course, according to complainant, it is not a case where Section 482 of the Cr. P.C. could be invoked by this Court and in that connection, he relied on the decisions of the Supreme Court in the cases of J.P. Sharma v. Vinod Kumar Jain and Ors., , Smt. Rashmi Kumar v. Mahesh Kumar Bhada, , K.A. Abraham v. K.M. Mathew and Ors., 2001 SCC (Cri.) 1583, M.N. Damani v. S.K. Sinha and Ors., ILR 2002 Kar. 4297, Ganesh Chandra Jew, Mohanan v. Prabha G. Nair and Anr., , State of Madhya Pradesh v. Awadh Kishore Gupta and Ors., AIR 2004 SC 517 : 2004(2) Crimes 310. But, in none of the decisions, it is held that even if offence is not made out, then also, this Court should not invoke its power under Section 482 of the Cr. P.C.
44. It is true that while considering whether offence alleged is made out or not, Courts cannot and should not consider the defence, if any, which could be taken by accused. So also exception, which could be claimed by an accused during trial for the offence punishable under Section 500 of the IPC. But, in the present case, material on record relied on by the complainant only has been considered without disbelieving it and found that offences alleged have not been made out. So, neither the said decisions nor the decisions of the Supreme Court in the case of Jawaharlal Darda and Ors. v. Manoharrao Ganpatrao Kapsikar and Anr., , Sewakram Sobhani v. R.K. Karanjiya, and also in the case of G. Narasimhan and Ors. v. T.V. Chokkappa, nor the decision of Kerala High Court in the case of A.M. Kuttysankaran Anir v. P.V. Kumaran Nair and Ors., Cri. A. No. 289 of 1962, DD: 2-8-1963 (Ker.), nor the decision of this Court in the case of T. Satish U. Pai v. Narayan Nayak, 2003(1) Cri. L.R. 41 (Kar.), relied on by the complainant helps him in any way.
45. On the other hand, decision of the Supreme Court in Prabhu Chawla's case and in Shatrughna Prasad Sinha's case and also in the case of Pepsi Foods Limited and Anr. v. Special Judicial Magistrate and Ors., ILR 1998 Kar. 3599 (SC) the Supreme Court has clearly held that when the complaint does not make out any case against accused for any offence, he can approach the High Court under Section 482 of the Cr. P.C. to have the proceedings quashed. Very recently in the case of Zandu Pharmaceutical Works Limited and Ors. v. M.D. Sharaful Haque and Anr., 2004 AIR SCW 6185 : 2004(9) Scale 177, the Supreme Court has observed as under:
"10.......In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code.....".
46. It is well-settled that under Section 482 of the Cr. P.C, it is the duty of the Court to quash the proceedings in order to prevent abuse of process of Court when a prima facie case is not made out for an offence for which process has been issued. So, the proceedings initiated by the complainant for the offences alleged require to be quashed.
47. Before parting with the case, it may not be out of place to note that though the imputations alleged and the representations made were earlier to 4-12-2001, the complaint came to be filed on "27-12-2002 i.e., after more than a year of such allegations and representations made against the complainant, without explaining as to why the complainant took this much time though, of course, point of limitation is not involved. Be that as it may, as observed above, the proceedings require to be quashed on the ground that no offence has been made out against the accused.
No other point has been raised nor arises for consideration.
In the result, the petition is allowed. The proceedings initiated by the complainant in C.C. No. 20 of 2004 (PCR No. 21 of 2003) pending in Judicial Magistrate First Class, II Court at Belgaum and the order dated 7-1-2004 issuing process against accused and also the order dated 26-6-2004 passed by the Court of III Additional Sessions Judge, Belgaum are quashed.
In the circumstances, no order as to cost is made.