Jammu & Kashmir High Court
Professor S.K. Bhalla vs Kamal Rometra on 14 March, 2022
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRMC No. 48/2017
IA No. 1/2017
Reserved on : 10.03.2022
Pronounced on :14.03.2022
Professor S.K. Bhalla ...Petitioner(s)
Through:- Mr. Chetan Prabhakar, Advocate
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v/s
Kamal Rometra ...Respondent(s)
Through:- Mr. Navyug Sethi, Advocate
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
1) The petitioner herein through the medium of the instant petition filed under Section 561-A of Cr.P.C (482 Cr.P.C), seeks quashment of compliant No. 55/Comp titled as "Kamal Rometra Vs. Prof. S.K. Bhalla", for offences under Sections 211 & 500 (b) RPC passed by the court of learned 1st Civil Subordinate (Sub-Judge), Municipal Mobile Judicial Magistrate 1st Class, Jammu (for short, the „Trial Court‟) along with order of cognizance dated 01.11.2016 (for short, „the impugned order‟).
Brief facts of the case :-
2) The factual matrix of the matter, as reflected from the complaint, which came to be filed by the respondent herein against 2 CRMC No. 48/2017 the petitioner herein in the trial court is that the complainant-
respondent herein is the editor of leading newspaper of Jammu and Kashmir, namely, „Daily Excelsior‟ having its widest circulation amongst all the local newspaper in Jammu and Kashmir and that because of the efforts of the father of the complainant-respondent herein for the last more than 50 years, the said newspaper made up its name and created a niche for itself in J&K and that the newspaper is known for fearless and transparent reporting on account of high moral standards of the father of the complainant after his death, the complainant with his brother, namely, Neeraj Rometra, who is the Executive Editor of the newspaper.
3) It has been stated in the complaint that on account of its extensive reporting of the news paper against the corrupt and malpractices of various government officials and private persons, the said people becomes inimical towards the newspaper and its management, thereof finding way to tarnish the image of newspaper and the complainant besides, indulging in blackmailing and harassing the complainant so that the newspaper dissuades from truthful reporting.
4) It has been alleged in the complaint that the accused- petitioner herein has been filing complaints and petitions against large number of people under the garb of Public Interest Litigation, projecting himself to be a public spirited person and that the accused- 3 CRMC No. 48/2017 petitioner apparently acting on behalf of somebody who has been exposed by the truthful reporting of the newspaper filed a complaint with the Crime Branch, leveling wreckless and baseless allegations against the complainant, his brother and the newspaper. The said false and frivolous allegations are stated to have been made to defame the complainant-respondent herein, his brother and the newspaper.
5) It has been further alleged in the complaint that the complainant-respondent herein instead of refusing to budge to the tactics of blackmailing and harassment at the hands of the accused- petitioner-herein though, challenged the power and jurisdiction of the crime branch to inquire into the allegations leveled in the complaint filed by the petitioner-herein in view of SRO 133 of 1991 read with SRO 202 of 1999 before this Court in OWP No. 915/2016, yet associated with the inquiry conducted by the Crime Branch, which after holding an investigation in the said complaint found that the same is false with no offence has been committed by the complainant-respondent herein while closing the said inquiry.
6) It has also been alleged in the complaint by the respondent herein that his image got tarnished in the eyes of general public because of filing of complaint by the petitioner-herein before the Crime Branch and the same brought disrepute to the newspaper, as also its management and that every statement made by the accused-petitioner herein in the complaint filed before the Crime 4 CRMC No. 48/2017 Branch is defamatory, intended to malign and denigrate the complainant-respondent herein and to lower down him in the esteem of general public. The complainant-respondent herein, thus, prayed for initiation of proceedings against the accused-petitioner herein for having committed under Sections 211 and 500 RPC.
7) The petitioner-herein challenges the impugned complaint and order dated 01.11.2016 in the instant petition, inter- alia on the grounds that the respondent-herein filed a false and frivolous complaint against the petitioner-herein before the trial court and the contents of the said complaint, the statement of the complainant-respondent herein and his witnesses nowhere fulfil the essentials of Sections 500 and 211 RPC and that the complaint made by the petitioner herein against the respondent was not made before the general public but before lawful authorities within the ambit of law and not beyond that and that the trial court without considering and appreciating the facts of the complaint and without recording the statement of even single independent witness, had taken the cognizance wrongly and issued process against the petitioner herein vide impugned order dated 01.11.2016 and that the offence under Section 211 is non-cognizable and an aggrieved cannot directly file a complaint under Section 211 of the RPC, as only the Court, in which the criminal proceedings are instituted is competent to file the same. 5 CRMC No. 48/2017
8) It is further urged in the petitioner that the respondent- herein has not mentioned in the complaint as to what words constituted defamation and that the petitioner-herein as a responsible and law abiding citizen approached lawful authorities to investigate the matter regarding encroachment of land by the respondent-herein as per the news items published in one of the leading newspapers i.e. „State Times‟ dated 03.01.2012 and that the petitioner-herein neither published his complaint in any of the newspapers nor made any defamatory remarks against the respondent-herein, but approached the appropriate lawful authorities within the ambit of law to investigate into the matter of public importance on the basis of news item published in the newspaper „State Times‟ and that no action has been taken by the respondent-herein against the newspaper, wherein the news item was published.
9) It is further urged that the impugned complaint has been filed by the respondent-herein against the petitioner-herein with a motive to pressurize the petitioner to keep silence on the issue and that even threats were given by the respondent-herein to the petitioner-herein to desist from the issue or else to face serious consequences and that, though, the complaint dated 15.03.2016 was made by the petitioner-herein, against two persons and only one of them felt defamed and the other one did not choose to file any complaint like the respondent-herein, but instead had chosen to 6 CRMC No. 48/2017 become witness in the impugned complaint which is not permissible under law.
10) It is further urged that the complaint made by the petitioner-herein, against the respondent-herein before the Crime Branch was not properly investigated by the investigating agency and that the allegations leveled in the impugned complaint even if taken at their face value and accepted in its entirety do not prima-facie constitute any offence or make out a case against the petitioner- herein.
11) The impugned complaint by the respondent-herein is urged to have been instituted maliciously with an ulterior motive for wreaking vengeance on the petitioner and is stated to be an abuse of process of law and the trial court is contended to have not considered the matter rightly but taken cognizance and issued process wrongly without following the prescribed procedure in this regard.
12) Lastly, it is being urged in the petition that the impugned complaint as well as impugned order dated 01.11.2016, passed by the court below are required to be quashed as the same amounts to an abuse of process of law and that the interference of this Court is necessary for securing the ends of justice and to prevent the abuse of process of law.
7CRMC No. 48/2017
Heard learned counsel for the parties and perused the record.
13) According to the learned counsel for the petitioner while making his submissions in tune with the contentions raised and grounds urged in the instant petition, cognizance of the offence under Section 211 RPC could not have been taken by the trial court in view of Section 195 (1) (b) Cr.P.C and that the allegations leveled in the impugned complaint do not constitute the offence of defamation as the case falls within Eighth Exception appended to Section 499 RPC.
14) To better understand the aforesaid contentions of the counsel for the petitioner, it would be profitable to refer to Section 211 RPC read with Section 195 (1) (b) Cr.P.C as also Section 499 RPC read with Eighth Exception here under :-
Section 211 RPC and Section 195 (1) (b) Cr.P.C reads as under :-
"Section 211. False charge of offence made with intent to injure. -- Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both ;8 CRMC No. 48/2017
and if such, criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
" Section 195. (1) No Court shall take cognizance-
(b) Of any offence punishable under any of the following sections of the same Code, namely, Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228 when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, [except on the complaint in writing of that Court or by such officer of the Court as that court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate]."
As appears from above, offences under Section 211 RPC fall under two categories, the first is a complaint to a Magistrate and the second is a report of a cognizance offence to a police officer. The essential ingredients of an offence under Section 211 RPC is to institute or cause to be instituted any criminal proceedings against a person with intent to cause him injury or with similar intent to falsely charge any person with having committed any offence, knowing that there is no just or lawful ground for such proceedings.
Under Section 195 (1) (b) (supra), the Magistrate is debarred from taking cognizance of the offence under Section 211 RPC in the absence of a complaint in writing of the Magistrate 9 CRMC No. 48/2017 himself, in that, the offence must have been committed within "in, or in relation to, any proceedings in any court". In view of the aforesaid plain reading of Section 195 (1) (b) (supra), the contention of the counsel for the petitioner that the cognizance of Section 211 RPC could not have been taken by the trial court is patently illogical, misconceived and misplaced, as such, not sustainable in law.
15) Section 499 RPC and Eighth Exception appended thereto reads as under :-
"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."
Eighth Exception.-- Accusation preferred in good faith to authorized 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."
A plain reading of Section 499 RPC (supra) reveals that an imputation made against another person which is intended by him to harm such other person or he knows or believes to be injurious to such reputation, constitute an offence of defamation. The defamation may be made in one or more 10 CRMC No. 48/2017 ways satisfied in the section itself either by spoken words, written words, by signs or by visible representations. What is necessary is that imputation must be made or published and must be made known to other person or persons, however, even if, the imputations made satisfies all the ingredients of Section 499 RPC, yet it may not constitute the offence if it falls within one or more exceptions appended to Section 499 RPC.
16) The case set up by the petitioner in the instant petition as noticed above precisely is that, he made a complaint to the Crime Branch on 15.03.2016 for investigating into the matter regarding encroachment of land and fake details of circulation as responsible and law abiding citizen before a lawful authority as per the news item published on 03.01.2012, in one of the leading newspapers i.e. „State Times‟. However, the record tends to show that the petitioner-herein, addressed a letter to the Senior Superintendent of Police, Crime Branch, Jammu, on his letter head dated 18.05.2016, with the following subject :-
"Registration of an FIR under PC Act and relevant sections of RPC against Rohmetras' viz one deceased S.D. Rohmetra, Kamal Rohmetra and Neeraj Rohmetra for encroachment of land both at their Gandhi Nagar residence and Excelsior House Jammu as also for fake details of inflated circulated of their paper amounting to cheating, fraud and financial impropriety for years together."11 CRMC No. 48/2017
In fact, the letter with the subject supra has formed basis for filing of the impugned complaint by the respondent-herein, against the petitioner-herein, and not the news item published in the newspaper „State Times‟.
17) It is noteworthy that the application of Eighth Exception appended to Section 499 RPC involves a point of fact which cannot be expected to be visualized by a trial court at the threshold stage of taking cognizance of offence or issuing process against the accused. In other words, in case the complaint, statement of complainant and all the witnesses examined by the complainant at the time of filing of the complaint discloses that the imputation concerning the complainant will harm the reputations of the complainant, the Magistrate would be justified in taking the cognizance and issuing process against the accused. It is only thereafter, as the matter proceeds that the accused may establish that the imputation was made in good faith. The burden on the accused is not of the kind placed on the complainant to prove his case but only to be proved by preponderance of probabilities. Whether the imputations are made in good faith cannot be determined even by this Court when called upon while exercising inherent jurisdiction, in that, the said question is factual in nature and character and it is only the trial court that can return a finding on that issue after the parties would bring evidence 12 CRMC No. 48/2017 on record. In short, the question whether the matter falls within Eighth Exception to Section 499 RPC is not a threshold question.
Thus, the case set up by the petitioner that Eighth Exception of Section 499 RPC (supra) is attracted in his case in view of above, analysis, at this stage, pales into insignificance and, as such, as well is not sustainable in law.
18) The question which next falls for consideration of this Court would be as to whether having regard to the facts and circumstances of the case, the impugned complaint and proceedings undertaken thereof by the trial court are liable to be quashed in exercise of inherent power enshrined under Section 482 of Cr.P.C. The law is no more res-intgra that the criminal proceedings ought not to be scuttled in the initial stage and quashment of a complaint/FIR should be an exception and a rarity than an ordinary rule. The power of quashment has to be exercised sparingly with circumspection in the rarest of the rare cases and the inherent power of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims and caprice and though the inherent power is very wide but conferment of the same requires the Court to be cautious and casts an onerous and more diligent duty on the Court.
A reference in regard to above to the judgment of the Apex Court passed in the case titled as, "Neeharika Infrastructure 13 CRMC No. 48/2017 Pvt. Ltd. Vs. State of Maharashtra and ors., reported in 2021 SCC Online SC 315", would be advantageous and appropriate.
In view of the aforesaid legal position and having regard to the facts and circumstances of the case, the instant petition does not fall with the parameters laid down by the Apex Court for exercise of inherent jurisdiction as noticed above, as such, the exercise of inherent power is declined.
19) For what has been observed, considered and analyzed herein above, the instant petition fails and is accordingly, dismissed along with all connected applications.
20) It is made clear that nothing herein above shall be construed to be an expression of any opinion about the merits of the case.
(JAVED IQBAL WANI) JUDGE Jammu 14.03.2022 SUNIL-I Whether the order is speaking ? : Yes Whether the order is reportable ? : Yes