Bombay High Court
Shri Vijay Vishwanath Kuvalekar vs Shri Suresh Raghunathrao Kalkundrikar ... on 14 September, 1999
Equivalent citations: 2000(5)BOMCR402
Author: Shafi Parkar
Bench: Shafi Parkar
ORDER Shafi Parkar, J.
1. The question which arises in this petition is whether a son can be said to be an 'aggrieved' person within the meaning of section 199 of Cr.P.C. and, therefore, competent to file a complaint for the offence of defamation under section 500 of I.P.C. for the alleged defamation of his father who was the sole trustee of Dutta Mandir situated in village Ashti in District Pune.
2. This application is filed for quashing the process issued by JMFC, A/C Court, Pune in Criminal Case No. 1867 of 1989 in the complaint filed by the respondent No. 1 for offence under section 500 of I.P.C. in respect of the news item published in "Daily Sakal" a newspaper in Marathi, on 21st May 1989, under the inherent powers of this Court under section 482 of Cr.P.C. and under Article 227 of the Constitution of India.
3. The brief facts giving the backdrop of the present petition can be stated as follows:
At Village Ashti, there is a temple called Dutta Temple. It is registered as a Trust with the Charity Commissioner, Aurangabad. The father of the complainant-respondent No. 1 was the sole trustee of the said temple. The villagers of Ashti had given a written complaint/application to the Charity Commissioner, Aurangabad making several allegations against the said Trustee. A copy of the said complaint/application is annexed at Exhibit "D" to the petition. The allegations made against the said Trustee in that application were reported in Marathi newspaper "Daily Sakal" dated 21st May, 1989. The petitioner is the Editor of that newspaper who was arraigned as accused No. 1 in the complaint. Thereafter the said Trustee issued his advocate's notice dated 24-7-89 to the petitioner in respect of the said news item which was replied to by the petitioner by his reply dated 4-8-89, a copy whereof is annexed as Exhibit "E" to the petition. In the said reply, the petitioner has denied the allegations made in the notice and denied that the said news item was published intentionally in order to lower or harm the reputation of the Trustee or that it contained false allegations. Thereafter a private complaint came to be filed in the Magistrate's Court on 9-11-89, being Criminal Case No. 1867 of 1989, by the respondent No. 1 who is the son of the said Trustee. After the complaint was filed, the learned Magistrate issued the process on 27-11-1989. The order issuing process was challenged by the petitioner in the Sessions Court, Pune by filing Criminal Revision Application No. 175/90. The learned II Additional Sessions Judge, Pune, who heard the criminal revision application, dismissed the same by his judgment and order dated 7-5-92 upholding the order issuing process on the ground that the allegations were prima facie defamatory and that the complainant being the son and the disciple of his father Raghunathrao Kalkundrikar i.e. the sole trustee was an aggrieved person and, therefore, competent to sue the petitioner for defamation.
4. By the present petition the order issuing process as well as the order of the Sessions Court dated 7-5-1992 passed in Criminal Revision Application No. 175/90 are impugned. It may be mentioned here that the original com-plaint was filed against two accused persons: Petitioner as accused No. 1 and one Smt. S. Parulekar as accused No. 2 who were the editor and the publisher respectively of the Daily Sakal. The Revision Application before the Sessions Court was filed by both the accused. However, present petition is filed only by accused No. 1 as the original accused No. 2 had died in the meantime.
5. Mr. Peshave, the learned advocate appearing for the petitioner, contended that the process was wrongly issued and the complaint is not maintainable on the ground that the respondent No. 1-complainant is not an aggrieved party. Secondly, he contended that no allegations have been made by the petitioner in the newspaper against the Trustee but what was published in the said newspaper was only the contents of the application filed before the Charity Commissioner by some villagers.
6. So far as the question with regard to the maintainability of the complaint by respondent No. 1 is concerned, it would be desirable to refer to section 199(1) of Cr.P.C. under the heading 'Prosecution for defamation' which reads as under:
"199. Prosecution for defamation:---(1) No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence.
Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf."
7. Under the aforesaid provision, the cognizance of the offence punishable under Chapter XXI of I.P.C., which pertains to defamation, cannot be taken except upon a complaint made by some person aggrieved by the offence. This section carves out an exception to the general rule of the criminal jurisprudence that any person can put law into motion as laid down in section 190 of Cr.P.C. The said provision lays down the modes of taking cognizance by the Magistrate either on receiving a complaint of facts constituting any offence, secondly, upon a police report and lastly upon information received from any person other than a police officer, or upon his own knowledge that such offence has been committed. This provision has been interpreted to mean that the law can be put into motion by any person and not necessarily by the victim of the said offence. But exception has been carved out to the general provision laid down in section 190 of Cr.P.C. by subsequent provisions like sections 195, 196, 197, 198 and 199 of the Code. In this petition I am concerned with the restriction for taking cognizance laid down under section 199 of Cr.P.C. with regard to the offence of defamation. One thing is quite obvious that the said restriction does not limit the right to file the complaint to the person against whom the offence is committed but the complaint can be filed by some person aggrieved by the offence and thus aggrieved person can be other than the one against whom the offence was committed. In order to understand the words, "by some person aggrieved", the proviso to sub-section (1) of section 199 would be helpful. It specifically provides that if such person i.e. aggrieved person is under the age of 18 years or is an idiot or a lunatic or is from sickness or infirmity unable to make complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf. The said proviso gives an indication that some person aggrieved referred to in sub-section (1) of section 199 would be the person against whom the offence was committed.
8. It would also be expedient to consider section 499 of I.P.C. which defines the offence of defamation. The relevant portion of the said section, particularly the definition of the offence of defamation and four explanations can be quoted here for the purpose of understanding the scope of section 199 of the Code.
"499. Defamation.---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:---It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2:---It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3:---An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4:---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."
9. The explanations 1 to 4, explaining the offence of defamation, are relevant for the purpose of answering the question arising in this petition. From Explanation 1 it can be gathered that in case the imputation was against the deceased person it may also be defamatory of the members of the deceased family or his near relatives in case it was intended to be hurtful to the feelings of his family or other near relatives. This means that the imputation directed against the deceased person may amount to defamation of the members of his family or other near relatives, if imputation against the deceased was intended to be hurtful to the feelings of his family or other near relatives. In other words the imputation made against a living person would not bring within its fold the members of his family or near relatives. Thus, the members of the family or other near relatives could file the complaint for defamation directed against only a deceased relative or member of the family. Secondly, Explanation 4 requires that 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 in respect of his caste or of his calling, or lowers the credit of that person.
10. After reading the news item it does not appear that any allegation was made against the respondent No. 1-complainant nor it is his case in the complaint that the imputation directly or indirectly lowers the moral or intellectual character of the complainant or lowers complainant's character in respect of his caste or of his calling or lowers his credit as contemplated in Explanation 4 to section 499 of I.P.C. It is not disputed that the complaint was filed by the respondent No. 1 on behalf of his father during his life time and, therefore, explanation 1 is not attracted. Paragraph 16 of the complaint states that by the said news item the sole trustee was defamed and his image had been distorted. Para. 18 of the complaint states that because of the said news item the complainant was also defamed and, therefore, he is entitled to file the said complaint, without stating as to how the complainant can be said to have been defamed by the news item in which the allegations were made only against his father in his capacity as the sole trustee of the Dutta Temple Trust.
11. The learned advocate for the petitioner relied on the decision of the Supreme Court in the case of G. Narasimhan and others v. T.V. Chokkappa, . That was a case where the complaint was filed by the Chairman of the Reception Committee of the Conference organised by the party in respect of news item published by the accused in their newspaper regarding certain resolution. The conference consisted of a large number of members of the party, sympathisers, leaders and outsiders including 5000 women. In that context, the Supreme Court held that it was impossible to have any definite idea as to the number of persons who attended the conference. The Conference clearly was not an identifiable or a definite body and, therefore, the Chairman of the Reception Committee of the Conference was held not to be aggrieved person entitled to maintain the complaint within the meaning of section 198 of Cr.P.C. The ratio of that case, therefore, would not help the petitioner here.
12. In this petition we are concerned with the question whether the son could lay a complaint for the defamatory material published in the newspaper against his father. Under section 199 of Cr.P.C., as observed earlier, the use of the words "some person aggrieved by the offence" in section 199(1) does indicate that the person aggrieved may be other than the one against whom the defamation is directed. Secondly, the Explanations 1 to 4 to section 499 of I.P.C. would indicate that aggrieved person referred to in section 199(1) could be the members of the family of the deceased against whom the imputation was directed or other relatives and/or a person aggrieved by the imputation concerning a company or an association or collection of persons as contemplated under Explanation 2 to section 499. Thus, in my view, the person aggrieved should be either the person defamed or any person covered by any of the explanations to section 499.
13. Mr. Agarwal, the learned advocate appearing on behalf of respondent No. 1-complainant relied on the Full Bench decision of this Court in the case of Chhotalal Lallubhai (Complainant) v. Nathabhai Dechar and another, reported in 1900(2) Bom.L.R. 665. That was a case where an imputation of unchastity was made against the wife of the complainant and the Court held that the complainant-husband was an aggrieved person within the meaning of section 198 of the old Code, identical to section 199 of the present Code on the ground that "the reputation of a husband is so intimately connected with that of his wife, that he has always been allowed to sue whenever he has received damage just as though the words had been spoken of himself." Moreover, it was observed on page 670 of the Report as follows:
"......Moreover the common experience of life shows that a husband under ordinary circumstances suffers by the evil reputation of his wife. Obviously then the grievance to the husband cannot be described as merely sentimental."
In conclusion, it was observed on that very page of the Report as follows:
"The conclusion then to which I come is, 1st that the expression some person aggrieved is not limited to the person defamed and secondly that prima facie a husband is a person aggrieved by an imputation of unchastity to his wife with whom he is living, and I would so answer the question referred."
14. Mr. Agarwal also placed reliance on the decision of the Division Bench of the Calcutta High Court in the case of Thakur Das Sar v. Adhar Chandra Missri, reported in 1905(32) I.L.R. 425(Cal.). That was a case where the imputation of unchastity was directed against the sister of the complainant with whom she was staying. The Court held that the brother was an aggrieved person who could lay the complaint for defamation against the accused person by observing at page 428 of the Report as follows:
"...A Hindu lady residing with her father, her brother or her son is a member of his family; and her reputation is bound up with the reputation of the person in whose house and under whose charge she is living. If any imputation is made against her character, that would affect as much the relative with whom she is living as herself. In that view of the matter we think that the brother with whom this lady was living was as much aggrieved by the imputation made against Soudamini as the lady herself, and that, therefore, it was competent to the Court to take cognizance of the offence of defamation upon his complaint."
15. Thus, in both the aforesaid decisions the Court was considering whether the husband or the brother of the lady against whom imputation was directed could file the complaint for defamation. In both the cases the lady was staying with the complainant and, therefore, the reputation of the lady defamed was held to be hound up with the reputation of the husband or brother in whose house and under whose charge she was living. In both the cases the imputation was about the moral character of the lady concerned, at a time when most of the women in India were living in seclusion and were not expected to approach a Court of law to file complaint for defamation. It was further held in both the cases that the imputation of unchastity to a woman also affects the reputation and character of the husband or brother with whom she is living and, therefore, were held to be aggrieved persons within the meaning of the provision and, therefore, competent to lay a complaint.
16. I find the said view has also been followed in later decisions to which reference may be made here. In the case of Dwijendra Nath Talukdar and another v. Makhon Lal Pramanik, where the allegation of unchastity was made against the wife it was observed that while section 198 of the old Code excluded complaints by busy-body and mischief-makers, it did not say that the complaint can only be made by the person defamed. It was held that the husband is aggrieved person when imputations are made upon the chastity of his wife and, therefore, husband could file complaint for defamation. In the case of Gahru Ram Ramkumar v. Rambaran Thakuri and another, , it was held by the Madhya Pradesh High Court that when the imputation was made against the complainant's wife that she was a witch and practised witchcraft and destroyed the crops of the accused it was an imputation affecting the complainant-husband and, therefore, he could validly make a complaint. Similarly, in the case of Jokhai and another v. The State, where false imputation of unchastity was made against the daughter-in-law, it was held that when son was absent, the father-in-law was aggrieved person and could file complaint for defamation against the accused.
17. In all these cases the imputations of unchastity or witchcraft were made against the wife or daughter-in-law when it was held that their husbands or father-in-law in the absence of husband could file complaint for defamation as they were aggrieved persons since the wife and daughter-in-law were staying with them. The main reasoning underlying the aforesaid view was that the reputation of the lady defamed was bound up with the reputation of the husband in whose house and under whose charge the lady was living. It cannot be forgotten that in those days the ladies were hardly expected to file such complaints in the Court themselves because of the social constraints and the privacy in which they lived. Even today it is difficult to visualise a situation where a pardanashin woman would file complaint for defamation in the Court of law if there is imputation of unchastity against her. As the wording of the section implies, the right to file complaint is not limited to a person against whom the imputation is made but the complaint can be filed by some person aggrieved by the imputation that is to say the complainant must be affected by the imputation.
18. In my view, though the wording of the section does not suggest that the right to file a complaint under section 199 of Criminal Procedure Code is confined to the person who is defamed but is intended to include and extends only to the persons covered by explanations to section 499 of I.P.C. and to meet the situations arising in the above referred decisions when the imputations of unchastity are made against the lady members living in customary privacy whose reputation is bound up with that of the person in whose house and under whose charge they live. In my view, the cases of such women are covered by the fourth limb of the proviso to section 199 of Criminal Procedure Code i.e. a woman who according to the local customs and manners, ought not to be compelled to appear in public. Under the scheme of section 199, such right cannot, in my opinion, be extended to the complainant in this case when the person defamed was sui juris and the case is not covered either by proviso to section 199 of Criminal Procedure Code or by any of the explanations to section 499 of I.P.C. To extend the scope of section 199 of Criminal Procedure Code beyond what is stated above is not envisaged by the provision and would defeat the very object underlying the provision which limits the right to complain to certain persons only.
19. The present complaint is filed by the son. Para 10 of the complaint quotes the news item published by the petitioner under the heading that the citizens have demanded an enquiry in the financial affairs of Ashti Dutta Mandir. Thereafter the allegations made by the citizens in the application made to the Charity Commissioner have been quoted. At the end of the report it is stated in the news item that those allegations have been made in the application before the Charity Commissioner by the citizens. In para 18 of the complaint it is averred that the complainant is also defamed because of what is stated in para 10 of the complaint and, therefore, he has a right to file the complaint, without stating how the complainant could be said to have been defamed by the said allegations made in respect of the working of the trust with which complainant was not associated. Moreover in the complaint it is not averred that what is published in the news item is other than the contents of the allegations made in the application made before the Charity Commissioner nor it is stated how the complainant could be said to have been defamed because of the news item.
20. The application made before the Charity Commissioner is not something which is secret and it is not the case of the complainant that petitioner had given his own comments with regard to the affairs of the said trust. Whether the allegations made in the complaint before the Charity Commissioner are true or false would be a subject matter of the decision by the Charity Commissioner and, therefore, it cannot be said at this stage that the allegations are false. Secondly, the allegations in the complaint before the Charity Commissioner were directed against the trust and the father of the complainant who was the sole trustee of the said Dutta Mandir. In order to attract the offence of defamation under section 499 of I.P.C. mens rea is required i.e. the publication must be made with an intention to harm or with knowledge or reasonable belief that such imputation would harm the reputation of a person against whom it was directed. The complaint does not state that the news item was published with an intention to harm the reputation of the complainant or with the knowledge or belief of the petitioner that such publication would harm the reputation of the complainant. The complainant does not assert in the complaint that he has been directly or indirectly referred to in the news item. In the complaint it is only alleged that because of the said news item the complainant is also defamed. The allegations made before the Charity Commissioner which are repeated in the news item do not make reference to the family affairs of the complainant's father but only to the financial affairs of the Ashti Dutta Mandir of which the complainant's father was the sole trustee.
21. In the course of hearing I came across two more cases. In the case of Ganesh Nand Chela v. Swami Divyanand, reported in 1980 Cri.L.J. 1036 Delhi High Court held that when the imputation was directed against the Guru-Spiritual head of the Ashram for leading an immoral life, the disciple was not the aggrieved person and, therefore, quashed the complaint in exercise of inherent powers under section 482 of Cr.P.C. Similarly, in the case of Prempal Singh and others v. Phool Singh and another, reported in 1980 Cri.L.J. NOC 160 (Raj.), Division Bench of Rajasthan High Court took the view that for the alleged defamation of senior active member of Divine Light Mission, a registered society, an ordinary member of Mission cannot be said to be an aggrieved person entitled to file complaint under section 199 of Cr.P.C.
22. The complaint in the present case does not show how the complainant can be said to have been defamed because of the news item published by the petitioner in the newspaper Daily Sakal quoting the allegations made by the citizens before the Charity Commissioner against the father of the complainant with regard to the financial affairs of the trust of which the complainant's father was the sole trustee. For the aforesaid reasons the complainant cannot be said to be an aggrieved person entitled to file complaint and, therefore, the cognizance taken by the trial Court and the process issued on his complaint is liable to be quashed.
23. In the result, petition is allowed and rule is made absolute in terms of prayer Clause (a) of the petition.
24. Petition allowed.