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Delhi District Court

Jai Bhagwan vs . Jagbir Singh Lamba on 11 March, 2020

       IN THE COURT OF SH. ARUN KUMAR GARG
    ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
        (SOUTH­WEST), DWARKA COURTS, DELHI

IN THE MATTER OF :
CC No. 299/2013
Jai Bhagwan Vs. Jagbir Singh Lamba
PS : Dwarka Sector 23
U/s 500 IPC

Date of Institution                    : 02.05.2003
Date of reserving of order             : 05.02.2020
Date of Judgment                       : 11.03.2020

JUDGMENT

1. Serial No. of the case                 : 4990808/16
2. Name of the Complainant                : Sh. Jai Bhagwan
                                            S/o Sh. Ram Nath
                                            R/o Village Shahbad Mohd.
                                            Pur, New Delhi

3. Date of commission of offence          : 07.11.2012
4. Name of accused person                 : Jagbir Singh Lamba
                                            S/o Sh.Kartar Singh Lamba
                                            R/o Village Shahbad Mohd.
                                            Pur, New Delhi

5. Offence charged                        : U/s 500 IPC

6. Plea of accused                        : Not guilty

7. Final Order                            : Acquitted

BRIEF REASONS FOR ORDER:
 Jai Bhagwan Vs. Jagbir Singh Lamba
CC No.299/2013 P.S. Dwarka Sector 23
Judgment dated 11.03.2020

1. Brief case of the complainant as per complainant is that he is working as Head Constable in Delhi Police and had never been involved in any anti­social activity. Accused is the neighborer of the complainant and used to harm the reputation of complainant while levelling false and cooked up allegations against the complainant in front of the natives of the village of the complainant. It is further the case of complainant that upon inquiry, he had come to know about lodging of a false complaint by the accused against him at the office of DCP Sector 19, Dwarka on 07.11.2012 containing the following allegations;

"Ek hawaldar Delhi Police ka Jai Bhagwan S/o Sh. Ram Nath (retired Inspector by Delhi Police) hamare pados me rehta hai jo sharab peeker ulti sidhi harkate karta hai".

2. According to the complainant, he had never touched the liquor and had never been involved in anti­social activity. The said allegations, according to him, will hamper his reputation amongst his family members including his grown up children. Complainant has accordingly made a complaint dated 25.02.2013 against the accused to the police, however, the police did not take any action against the accused, whereupon, the complainant was constrained to approach this court by way of the present complaint seeking prosecution of accused u/s 499/500 IPC.

3. Complainant has also moved an application u/s 156(3) CrPC before this court seeking direction to SHO PS Dwarka Sector 23 for registration of FIR against the accused. Subsequently, the complainant Jai Bhagwan Vs. Jagbir Singh Lamba CC No.299/2013 P.S. Dwarka Sector 23 Judgment dated 11.03.2020 had amended the prayer clause and hence, the complaint was treated as a complaint u/s 200 CrPC and complainant was directed to lead Pre­summoning evidence.

4. Complainant thereafter examined four witnesses in his pre­ summoning evidence including himself. He has examined himself as CW­1 and has once again reaffirmed all the averments made by him in his complaint on oath. He deposed that due to the false and frivolous allegations levelled by the accused in his complaint dated 07.11.2012, image of the complainant has been lowered in the society.

5. Sh.Bhupender Singh Lamba and Sh.Balram were also examined by the complainant as CW­2 and CW­3 respectively in his pre­ summoning evidence.

6. Inspector Vimal Kishore from Vigilance Branch, South West District of Delhi Police has been examined as CW­4 and he has produced the photocopy of the statement of accused dated 07.11.2012 which is Ex.CW­4/A.

7. Upon consideration of the pre­summoning evidence led by the complainant, the accused was summoned for the offence u/s 499/500 IPC by ld. Predecessor of this court vide order dated 09.03.2016 and a notice in terms of Section 251 CrPC explaining the accusations against the accused u/s 500 IPC was served upon the accused vide order dated 31.08.2016 and the plea of the accused was recorded. Accused did not plead guilty and claimed trial.

8. The order dated 31.08.2016 was challenged by accused in Criminal Revision No.67/2016 before Ld. ASJ, Dwarka Courts and Jai Bhagwan Vs. Jagbir Singh Lamba CC No.299/2013 P.S. Dwarka Sector 23 Judgment dated 11.03.2020 was upheld by Ld. ASJ vide order dated 06.02.2017.

9. In his post summoning evidence, complainant has examined three witnesses including himself. He has examined himself as CW­1, Sh.Bhupender Singh Lamba as CW­2 and Sh.Balram Lamba as CW­3 and all of them had adopted their pre­summoning evidence as their post notice evidence.

10. CW­1 to CW­3 were duly cross examined by ld. Counsel for the accused and thereafter, on the submissions of complainant, post notice evidence of the complainant was closed vide order dated 12.04.2019.

11. Thereafter, Statement of accused U/s 313 Cr.P.C was recorded on 07.05.2019 after putting entire incriminating evidence to him. Accused has denied all the allegations and has stated that the complainant used to threaten him by showing fear of his department and had slapped his mother in the year 2012 when she asked the complainant to remove the car from near the gate of accused. According to him, he is innocent and has been falsely implicated in the present case.

12. Though, accused chose to lead evidence in his defence, however, he has failed to lead any evidence in his defence despite opportunities. Final arguments were thereafter heard on behalf of both the parties on 05.02.2020.

13. It is submitted by Ld. Counsel for complaniant that the complainant has been able to prove his case against accused, beyond reasonable doubts, on the basis of the uncontroverted testimonies of CW­1 to CW­3. He submits that the only defence of accused is that his Jai Bhagwan Vs. Jagbir Singh Lamba CC No.299/2013 P.S. Dwarka Sector 23 Judgment dated 11.03.2020 case of lodging the complaint dated 07.11.2012 falls within eight's exception of Section 499 of IPC, however, the said exception requires the making of accusation by the accused in good faith and that too to a person who had lawful authority over the complainant. In the case in hand, according to him, the competent authority would have been the SHO PS Dwarka Sector 23, however, instead of making a complaint to him, the accused had chosen to send a complaint to the Inspector Vigilance, Dwarka Sector 19, New Delhi. Thus, according to him, the accused is not entitled to the benefit of exception eight of Section 499 IPC. In support of his aforesaid submissions, the counsel for complainant has relied upon the judgment of Hon'ble Supreme Court in Chaman Lal Vs. The State of Punjab 1970 SCR (3) 913.

14. On the other hand, it is submitted by ld. counsel for accused that the complainant has failed to examine CW­4 in his post notice evidence, in the absence of which, the alleged statement of the accused Ex.CW­4/A remained unproved. He submits that the complainant has failed to prove as to how the statement given by the accused to the Inspector Vigilance of the Department of Complainant has spread to the entire Village. He submits that the complainant has also failed to lead to any evidence as to the repeated incidents nor has he led any evidence to prove that the complaint was not made by the accused to the lawful authority within the meaning of exception eight of Section 499 IPC.

15. He further submits that the complainant has failed to examine any witness in whose estimation the reputation of the complainant was Jai Bhagwan Vs. Jagbir Singh Lamba CC No.299/2013 P.S. Dwarka Sector 23 Judgment dated 11.03.2020 lowered. In fact, according to him, on a bare perusal of the evidence of the complainant, it is apparent that the publication, if any, of the complaint made by accused has been done by the complainant himself.

16. Moreover, according to him, there is no evidence by the complainant of final disposal of the complaint made by accused to his department and hence, the present complaint is pre­mature. Besides, according to him, on a perusal of the testimonies of all the witnesses examined by the complainant, it is apparent that no effect of lowering down the reputation of the complainant is there on the public witnesses who are still coming and going to the functions of each other. It is further submitted by him that reputation of brothers is one and hence, the publication, if any, amongst the brothers is not sufficient to convict the accused for the offence u/s 500 IPC. Even otherwise, according to him, none of the witnesses examined by the complainant have named the accused and CW­3 Balram had tried to improve upon his testimony in PSE during his cross examination at post notice evidence stage. He has thus prayed for acquittal of the accused.

17. I have heard the submissions made on behalf of the parties and have also perused the material available on record.

18. Section 500 IPC prescribes the punishment for offence of defamation, whereas, the defamation has been defined under Section 499 IPC. Thus, before proceeding further it becomes imperative for the court to reproduce the relevant portion of Section 499 IPC for ready reference. Relevant portion of Section 499 IPC is accordingly Jai Bhagwan Vs. Jagbir Singh Lamba CC No.299/2013 P.S. Dwarka Sector 23 Judgment dated 11.03.2020 reproduced hereinbelow:

"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 expected, 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 disgrace­ ful.

Illustrations

(a). ...........................

(b). ...........................

(c). ...........................

First Exception­ .......................................................... Second Exception­ ..................................................... Third Exception­ .......................................................... Fourth Exception­ ....................................................... Fifth Exception­ .......................................................... Jai Bhagwan Vs. Jagbir Singh Lamba CC No.299/2013 P.S. Dwarka Sector 23 Judgment dated 11.03.2020 Sixth Exception­ ......................................................... Seventh Exception­..................................................... 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.

Illustration If A in good faith accuse Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z's manner; if A in good faith complains of the conduct of Z, a child, to Z's father­ A is within this exception.

Ninth Exception­ ........................................... Tenth Exception­ ..........................................."

19.The essential ingredients of the offence of defamation under Section 499 IPC as per aforesaid definition are as follows:

a)making or publishing of an imputation concerning any person;

b)imputation can be by words of mouth, writing, signs or visible representations;and c) such imputation must have been made with the intention of harming the reputation of the person about whom the imputation is published.

20. As per explanation 4 appended to Section 499 IPC, no imputation can be said to harm the reputation of a person unless it directly or indirectly lowers the moral, intellectual character, character in respect of his caste or calling, credit etc. of such person in the estimation of others. In view of explanation 4 what is sought to be protected is the right to one's external esteem i.e. the opinion of others about a person and not his self esteem i.e. his opinion about himself. The aforesaid explanation renders Jai Bhagwan Vs. Jagbir Singh Lamba CC No.299/2013 P.S. Dwarka Sector 23 Judgment dated 11.03.2020 publication of imputation to at least one person other than the person harmed, one of the most essential ingredient of offence of defamation. Thus, the publication of an imputation with the requisite mens rea i.e. with intention to harm or with knowledge or having reason to believe that such imputation will harm reputation of a person will render the person making the imputation liable to punishment u/s 500 IPC unless and until his case falls under any of the exceptions given in the section.

21.Now, for attracting of section 499 IPC, a statement/imputation may be per se defamatory or, as per explanation 3, if the same is not per se defamatory then the complainant can show that it is really defamatory to him from the circumstances or nature of publication.

22. In the case in hand, the complainant has failed to prove that the accused had published the alleged defamatory statement to at least one person other than himself. The complaint in question was made by the accused to the Inspector Vigilance of the employer of the complainant i.e. Delhi Police who is the lawful authority qua the complainant within the meaning of eighth exception to Section 499 IPC read with the illustration appended to the said exception which brings the case of a complaint made in good faith by the accused to the master of the complainant within the said exception.

23. Now the question is whether the statement was made by the accused to the lawful authority in good faith. Good faith has Jai Bhagwan Vs. Jagbir Singh Lamba CC No.299/2013 P.S. Dwarka Sector 23 Judgment dated 11.03.2020 been defined in Section 52 of the Indian Penal Code which excludes anything done or believed without due care and attention. Now the complainant has examined himself as well as CW­2 and CW­3 in his evidence wherein it has categorically been deposed by them that the complainant had never touched the liquor nor had he been engaged in any wrongful activities. The aforesaid part of testimony of CW­1 to CW­3 has remained uncontroverted during their cross examination by counsel for accused. Thus, in my considered opinion, the accused has failed to prove that the allegations levelled by him in his complaint dated 07.12.2012 falls within the eighth exception of Section 499 IPC.

24.The allegations levelled by the accused in his complaint dated 07.11.2012 are per­se defamatory, however, the same by itself are not sufficient to convict the accused for the offence u/s 500 IPC and in order to secure conviction of accused for the offence u/s 500 IPC, it was also incumbent upon the complainant to prove beyond reasonable doubts that the said allegations of the accused have lowered the reputation of complainant, in the estimation of right thinking persons of the society.

25.The complainant has examined only two witnesses besides himself. CW­2 in his examination in chief has failed to contend that by virtue of the allegations levelled by the accused against the complainant in his complaint dated 07.11.2012, the reputation of complainant was lowered in his estimation. Jai Bhagwan Vs. Jagbir Singh Lamba CC No.299/2013 P.S. Dwarka Sector 23 Judgment dated 11.03.2020

26.On the other hand, though, CW­3 in his pre­summoning evidence has merely deposed that he had never seen the complainant drinking alcohol and fighting with anybody and the complainant has respected his society, however, in his examination in chief, in post summoning evidence, CW­3 had tried to improve upon his testimony at pre­summoning stage by deposing that the blame on the complainant quickly spread around and reputation of the complainant was lowered. During his cross examination, he admitted that the complainant had celebrated the marriage of his daughter two years ago and had invited the accused in the marriage of his daughter who had not attended the said marriage, whereas, CW­3 had attended the marriage of the daughter of complainant and CW­3 still respects the complainant meaning thereby that the reputation of complainant was not lowered in the estimation of CW­3 despite the complaint dated 07.11.2012 of the accused against him.

27.So far as CW­1 is concerned, he had admitted during his cross examination that after the complaint Ex.CW­4/A by the accused against him to his department, he has been promoted. He further admitted during his evidence that the complaint dated 07.11.2012 was brought to the notice of CW­2 and CW­3 by him himself and the same was not published by the accused so as to bring the same to the notice of CW­2 and CW­3.

28.Under the aforesaid circumstances, in my considered opinion, complainant has utterly failed to prove that due to the Jai Bhagwan Vs. Jagbir Singh Lamba CC No.299/2013 P.S. Dwarka Sector 23 Judgment dated 11.03.2020 allegations made by the accused to his department in his complaint dated 07.11.2012, his reputation was lowered in the estimation of right thinking persons of the society in which the complainant is residing. Accused is thus entitled to be acquitted of the charge u/s 500 IPC and is hereby acquitted.

29.Accused has furnished personal bond in sum of Rs. 10,000/­ in terms of Section 437­A Cr.P.C alongwith surety bond of the similar amount today. The same have been accepted and shall remain in force for a period of six months from today.

30. Ordered Accordingly. ARUN Digitally signed by ARUN KUMAR GARG Pronounced in the open court on this 11th March, 2020 KUMAR Date:

This judgment consists of 12 signed pages. GARG 10:06:15 +0530 (ARUN KUMAR GARG) Additional Chief Metropolitan Magistrate Dwarka Courts: New Delhi Jai Bhagwan Vs. Jagbir Singh Lamba CC No.299/2013 P.S. Dwarka Sector 23 Judgment dated 11.03.2020