Himachal Pradesh High Court
Dev Ashish Bhattacharya vs Rachna Gupta on 9 May, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No. 411 of 2022
Reserved on 26.04.2024
Date of Decision: 09.05.2024
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_____________________________________________________________
Dev Ashish Bhattacharya ...Petitioner...
Versus
Rachna Gupta ..Respondent...
Coram
Hon'ble Mr. Justice Bipin Chander Negi, Judge.
Whether approved for reporting?1
For the petitioner: Mr. Sanjeev K. Bhushan, Senior Advocate
with Mr. Rajesh Kumar, Advocate.
For the respondent: Mr. Neeraj K. Gupta, Senior Advocate with
Mr. Ajit Pal Singh Jaswal, Advocate.
4._________________________________________________________
Bipin Chander Negi, Judge (oral)
The petitioner (respondent before the trial court) has filed this petition under Section 482 Cr.P.C. seeking quashing of the impugned summoning order dated 16.07.2021, whereby the learned Trial Court has come to the conclusion from the material on record that there exist sufficient grounds to proceed against the present petitioner for commission of offences punishable under Sections 499 & 500 of IPC and all consequential proceedings in pursuance thereto.
2. From a perusal of the complaint filed before the trial court, it is revealed that the present respondent(complainant before the trial court) is stated to be a highly qualified, renowned journalist, writer, author, having a vast experience of about two decades. At the time of filing of the complaint, the respondent was holding the post of a 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 09/05/2024 20:33:38 :::CIS 2member of the H.P. Public Service Commission. The aforesaid appointment is stated to have been made in January 2018.
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3. The prime focus of the complaint filed by the respondent is on letter dated 07.08.2019 written by the present petitioner alleged to have been received in the Secretariat of his Excellency the Governor on 20.09.2019. In the letter dated 07.08.2019, the allegations made against the present respondent is that the present respondent had concealed information regarding facing a criminal case in the Court of the learned Judicial Magistrate First Class, Jogindernagar, District Mandi, H.P. at the time of the respondent being appointed as a member of the H.P. Public Service Commission.
4. The criminal case qua which information is alleged to have been concealed by the present respondent at the time of the respondent being appointed as a member of the H.P. Public Service Commission was stated to have been filed by one Pawan Kumar, who was an Up Pradhan. On 26.10.2016 a news item was published in the daily newspaper known as Dainik Jagran (Mandi Edition) with a caption "Barkhast Up-Pradhan Nipta Raha Kaam".
5. On this news item Up Pradhan Pawan Kumar had filed a criminal complaint stating therein that aforesaid news item was false.
In the said criminal complaint, the local journalist of Dainik Jagran Newspaper and the present respondent being the State Bureau of Dainik Jagran had been arrayed as parties.
6. The respondent, in the criminal case so filed by Up Pradhan Pawan Kumar had been summoned for 21.02.2017. The respondent ::: Downloaded on - 09/05/2024 20:33:38 :::CIS 3 had presented herself before the Judicial Magistrate First Class, Joginder Nagar on 12.07.2019. On the said date, the respondent had .
been released on furnishing a personal bond for a sum of Rs.
10,000/-.
7. It is further stated in the complaint that Up Pradhan Pawan Kumar had on 21.08.2019 filed an appropriate application for withdrawal of the aforesaid case against the present respondent. Vide order dated 17.03.2020, passed in Cr.M.M.O. No. 662 of 2019 a learned Single Judge of the High Court of H.P. had allowed the petition filed by the present respondent and had ordered deletion of the name of the present respondent in the criminal case pending adjudication before Judicial Magistrate First Class, Joginder Nagar filed by UP Pradhan Pawan Kumar.
8. The respondent in the complaint filed before the learned Trial Court has further alleged that the petitioner has been leveling false allegations against the present respondent. The petitioner is alleged to be repeating his acts by posting, publishing scandalous/libelous and defamatory statements on facebook and social media.
9. According to the respondent, in her complaint the same has resulted in lowering of the image, prestige of the respondent amongst relatives, friends, colleagues, superiors, neighbours and in the public at large. A suit for defamation bearing COMS No. 20 of 2019 already stands instituted by the present respondent against the present petitioner. In the aforesaid suit, in OMP No. 574 of 2019 vide order dated 31.01.2020, the petitioner has been restrained from posting, ::: Downloaded on - 09/05/2024 20:33:38 :::CIS 4 publishing any statement of any nature against the respondent, her husband and her family members on Facebook or any other social .
media including print or electronic media till the disposal of the main suit.
10. On 20.04.2021, the complaint filed by the present respondent had been received by the JMFC, Court No. 5, Shimla post assignment from the Court of the Chief Judicial Magistrate, Shimla. Since none was present, therefore, on 20.04.2021 notices were issued to the present respondent through counsel for 10.05.2021. Thereafter, though the matter was listed for 20.07.2021 but on an application filed for early hearing the case was ordered to be taken up on 09.07.2021.
A perusal of the order dated 09.07.2021, reflects that though the complaint had been filed by the present respondent long back but due to COVID-19 preliminary evidence could not be recorded in the same and hence the process could not be issued against the present petitioner. The order further reflects that preponement of the case was also ordered on account of the fact that the present petitioner was not refraining himself from making defamatory remarks against the present respondent.
11. In the aforesaid backdrop, statement by way of preliminary evidence of the complaint was recorded on 09.07.2021. The matter thereafter was adjourned for 13.07.2021, on which date, statement of one witness namely Nitin Kumar was recorded, as preliminary evidence. The present respondent thereafter had closed her preliminary evidence and thereafter the lis was posted for 16.07.2021.
::: Downloaded on - 09/05/2024 20:33:38 :::CIS 512. On 16.07.2021, post considering the preliminary evidence of the complaint, statement of witness Nitin Kumar and the documents .
placed on record, learned Trial Court was of the view that there appear sufficient grounds to proceed against the present petitioner for commission of offence punishable under Sections 499, 500 of the IPC
13. Besides the complaint, statements made as preliminary evidence, the following documents have been appended along with the present complaint:
1. Complaint dated 07.08.2019 made by the respondent to the Hon'ble Governor of H.P. against the complainant.
2. Application submitted by the complainant to the Hon'ble Governor, Himachal Pradesh.
3. Application dated 19.10.2019 submitted by the complainant to the Chief Secretary, Govt. of H.P.
4. Letter dated 06.11.2019 by Special Secretary ( personnel) to the Govt. of H.P. to the Secretary to Governor.
5. Letter dated 18.11.2019 by Secretary to Governor to the Chief Secretary Govt of H.P.
6. Letter dated 03.01.2019 by Deputy Secretary (Personnel) to the Govt. of H.P. to the Secretary to Governor, H.P.
7. Order dated 03.01.2020 passed by the Hon'ble High Court of H.P. in OMP No. 574 of 2019 in COMS No. 20 of 2019.
8. Order dated 17.03.2020 passed by the Hon'ble High Court of H.P. in Cr.MMO No. 662 of 2019.::: Downloaded on - 09/05/2024 20:33:38 :::CIS 6
14. In the aforesaid backdrop, learned Senior counsel for the petitioner has argued (a) no case of defamation has been made out .
against the present petitioner on a reading of the complaint, statements made as preliminary evidence and other material placed on record (b) Order dated 16.07.2021 is not a speaking order and does not reflect application of mind (c) The grievance of the petitioner is with respect to the way and manner in which the case has been proceeded with (expediting of the prosecution of the case at hand by preponing the same).
15. Per contra, learned Senior Counsel for the respondent has categorically submitted that from a perusal of the entire material placed on record a case of defamation is made out against the present petitioner. The impugned order dated 16.07.2021 is valid in law as no detailed reasons have to be given in the same. The same shows an application of mind as the order categorically reflects that the petitioner is being proceeded against for the offences under Sections 499 & 500 IPC.
16. Last but not the least, learned Senior Counsel for the respondent has submitted that prior to the petitioner joining the proceedings before learned Trial court all that transpired was inter se the respondent and the learned Trial Court. There exist valid reasons for preponement of the case. Since at that stage, the petitioner was not before the Court, therefore, the petitioner according to learned counsel for the respondent is precluded from raising objections qua proceedings prior to him having joined the same.
::: Downloaded on - 09/05/2024 20:33:38 :::CIS 717. I have heard learned counsel for the parties and have gone through the material on record. The main question that falls for .
consideration is as to whether on a reading of the complaint, statements made as preliminary evidence and other material placed on record an offence under Section 499 of IPC is made out or not.
18. At the very outset, it would be appropriate to refer to case reported as 2024(2) SSC 86, titled M/S Iveco Magirus Brandschutztechnik GMBH vs. Nirmal Kishore Bhartiya, decided on 05.10.2023. The same pertains to a defamation case in which process had been issued and the issuance of process had been challenged therein. From reading of the same, the following can be culled out:-
(a) initiation of prosecution is a serious matter
(b) duty of the Magistrate is to prevent false, frivolous complaint from eating into the judicial time
(c) the Magistrate is duty bound to consider material before him and any applicable provisions of law.
(d) material before Magistrate is the complaint, statement of the complainant in support of the complaint any other witness the complainant make choose to produce to stand by allegations in the complaint and documentary evidence in support of the allegations.
(e) at the stage of issuance of process the Magistrate has to form an opinion as to whether material before him is sufficient for 'proceedings' and not for a 'conviction'.::: Downloaded on - 09/05/2024 20:33:38 :::CIS 8
(f) if the material themselves discloses a defence under any of the exception nothing prevents the Magistrate from an application of .
judicial mind to accord benefit of such an exception in order to curtail frivolous litigation
(g) the Magistrate is not precluded from considering, if at all any of the exception are attracted for the reasons that someone who is legally trained is accepted to have a clear idea of what constitutes defamation.
(h) The High Court can go no further and enlarge the scope of inquiry if the accused seeks to rely on material which was not there before the Magistrate
(i)The tests laid down for quashing an FIR or criminal proceedings arising from a police report by the High Court in exercise of jurisdiction under Section 482 of the Cr.P.C. are not substantially different from the test laid down for quashing of a process issued under Section 204 read with Section 200 of the Cr.P.C.
(j) The High Court on recording due satisfaction is empowered to interfere if on a reading of the complaint, substance of statements on oath of the complainant, any witness produced by the complainant and documentary evidence produced no offence is made out and that proceedings, if allowed to continue would amount to an abuse of the legal process
(k) The issue of process under Section 204 read with Section 200 Cr.P.C. does not Ipso facto stand initiated for non-consideration of the exceptions to Section 499 IPC unless of course before High Court it is ::: Downloaded on - 09/05/2024 20:33:38 :::CIS 9 convincingly demonstrated that even on the basis of material existing before the Magistrate and without there being anything more the facts .
alleged do not prima facie make out the offence of defamation and consequently, the proceedings need to be closed.
19. Admittedly the respondent was appointed as a member of the H.P. Public Service Commission in January 2018. The article with a caption "Barkhast Up-Pradhan Nipta Raha Kaam" with respect to which one Pawan Kumar, an Up Pradhan had preferred a criminal complaint was published in the daily newspaper known as Dainik Jagran (Mandi Edition) on 26.10.2016. In the said criminal complaint, the local journalist of Dainik Jagran Newspaper and the present respondent being the State Bureau of Dainik Jagran had been arrayed as parties.
20. The respondent, in the criminal case so filed by Up Pradhan Pawan Kumar had been summoned for 21.02.2017. The respondent had presented herself before the Judicial Magistrate First Class, Joginder Nagar on 12.07.2019. On the said date, the respondent had been released on furnishing a personal bond for a sum of Rs. 10,000/-.
21. Vide letter dated 07.08.2019 the present petitioner had informed his excellency the Governor through his secretariat that at the time of the respondent being appointed as a member of the H.P. Public Service Commission she had concealed information regarding facing a criminal case in the Court of the learned Judicial Magistrate First Class, Jogindernagar, District Mandi, H.P. ::: Downloaded on - 09/05/2024 20:33:38 :::CIS 10
22. Up Pradhan Pawan Kumar had on 21.08.2019 filed an appropriate application for withdrawal of the criminal complaint against .
the present respondent. Vide order dated 17.03.2020, passed in Cr.M.M.O. No. 662 of 2019 a learned Single Judge of the High Court of H.P. had allowed the petition filed by the present respondent and had ordered deletion of the name of the present respondent in the criminal case pending adjudication before Judicial Magistrate First Class, Joginder Nagar filed by UP Pradhan Pawan Kumar.
23. Relevant extract of Section 499 IPC is being reproduced here-
in-below;
" 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 cases hereinafter excepted, to defame that person."
8th Exception to Section 499, on which reliance has been placed by the learned counsel for the petitioner read as under:-
"Eighth Exception. --Accusation preferred in good faith to authorised person. --It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-
matter of accusation."
24. The word 'Good faith' has been defined in Section 52 of IPC to main:-
"52. "Good faith"-Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention Exception 8 to Section 499 clearly indicates that it is not a defamation to prefer in good faith an accusation against any person to any of those ::: Downloaded on - 09/05/2024 20:33:38 :::CIS 11 who have lawful authority over that person with regard to the subject matter of accusation.
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25. In the aforesaid facts and attending circumstances of the case at hand it is evident that the subject-matter of accusation (concealment of information regarding facing a criminal case at the time of the appointment of the respondent to a constitutional post) was made with due care and attention(after obtaining all relevant details from the trial court qua criminal complaint in question) to a person who had lawful authority(Governor) over the respondent. The appointment of the respondent is made by the governor under Article 316 (1) of the Constitution of India. Hence it is convincingly demonstrated that the alleged defamatory imputation attracts the 8 th Exception to Section 499 and hence is not defamation. Further continuation of the proceedings in the case at hand before the trial court would be an abuse of process eating into judicial time. In this regard reference can be made to a judgment passed in Cr. Appeal No. 2291 of 2011, titled Kishore Balkrishna Nand vs. State of Maharashtra & another, decided on 02.08.2023.
26. In so far as the argument of the learned senior counsel appearing on behalf of the petitioner qua Order dated 16.07.2021 being not a speaking order and not reflecting application of mind is concerned suffice it to state that recording reasons at the stage of issuing process is not a statutory mandate. At the stage of issuing process formation of opinion is with respect to sufficient ground for proceeding. A prima facie satisfaction based on probability of complicity is required. In this respect ::: Downloaded on - 09/05/2024 20:33:38 :::CIS 12 reference can be made to case reported as 2024(2) SSC 86, titled M/S Iveco Magirus Brandschutztechnik GMBH vs. Nirmal Kishore .
Bhartiya, decided on 05.10.2023 the relevant extract whereof in this regard is being reproduced for a ready reference :-
"The requirement of recording reasons at the stage of issuing process is not the statutory mandate; therefore, the Magistrate is not required to record reasons for issuing process. Since it is not the statutory mandate that reasons should be recorded in support of formation of opinion that there is sufficient ground for proceeding whereas dismissal of a complaint has to be backed by brief reasons, the degree of satisfaction invariably must vary in both situations. While in the former it is a prima facie satisfaction based on probability of complicity, the latter would require a higher degree of satisfaction in that the Magistrate has to express his final and conclusive view of the complaint warranting dismissal because of absence of sufficient ground for proceeding.
27. In this respect reference can also be made to a judgment reported as Jagdish Ram vs. State of Rajasthan (2004) 4 SCC 432 and Sachin Garg vs. State of U.P. & another, arising out of petition for Special Leave to appeal (Criminal No. 4415 of 223), decided on 30.01.2024.
28. The grievance of the petitioner with respect to expediting of the prosecution of the case at hand by preponing the same details whereof have been stated in para 10 supra is mis-conceived. The petitioner joined the proceedings after process is issued to him. Objections qua proceedings prior to the petitioner having joined the same are not sustainable. Moreso, in view of the fact that during the said period none of the rights of the petitioner had been adjudicated upon.
::: Downloaded on - 09/05/2024 20:33:38 :::CIS 1329. In view of the aforesaid, the present petition is allowed and impugned order dated 16.07.2021, passed by learned Chief Judicial .
Magistrate, Shimla, H.P. in case No. 72-2 of 2021, titled Rachna Gupta vs. Dev Ashish Chattacharya, as well as all consequential proceedings arising thereto are quashed and set-aside, so also, pending miscellaneous application(s), if any.
(Bipin Chander Negi) Judge May 9, 2024.
(Nisha) ::: Downloaded on - 09/05/2024 20:33:38 :::CIS