Calcutta High Court (Appellete Side)
Smt. Kalpana Majumder vs The State Of West Bengal & Anr on 19 January, 2017
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present : The Hon'ble Justice Indrajit Chatterjee
C.R.R. No. 3164 of 2016
Smt. Kalpana Majumder
-Vs.-
The State of West Bengal & Anr.
For the Petitioner : Mr. Ayan Bhattacharjee,
Mr. Nirmalya Chatterjee.
For the Opposite Party No.2 : Mr. Debasish Roy.
Heard on : 16-01-2017
Judgment on : 19-01-2017
Indrajit Chatterjee, J.:- This is an application under Section 482 of the Code of
Criminal Procedure, 1973 in which the petitioner-accused has prayed for
quashing of the proceeding under Section 500 of the Indian Penal Code, being
C.R. Case No. 433 of 2013, now pending before the learned Judicial Magistrate,
2nd Court at Siliguri, District: Darjeeling.
The fact relevant for the purpose of adjudication of this quashing
proceeding can be stated in brief thus:
That admittedly, the complainant was engaged as one Advocate by the
accused and there was some dealing regarding the purchase of one property in
Calcutta for which the accused entrusted the complainant to give legal advice
and also to see that there must not be any problem regarding the transfer of the
share of that property in the name of the accused, who is admittedly one
Promoter.
It may not be out of place to mention that two cases were filed in between
the parties as I get from the judgement of this Court as passed in CRR 218 of
2012 which was disposed of by this Court on 18-01-2016. These cases are
Alipore P.S. Case No. 73 dated March 30, 2010 and Siliguri P.S. Case No. 345 of
2011 dated June 20, 2011. It may also be noted that both the cases were
instituted at the instance of the accused.
The Investigating Officer of Alipore Police Station Case submitted FRT and
this accused filed one "Naraji" petition before that court but unfortunately for the
accused/opposite party, the said "Naraji" petition was rejected by the learned
Chief Judicial Magistrate, Alipore, South 24-Parganas.
The matter rolled on before this Court and CRR No. 218 of 2012 was
preferred before this court by the accused/petitioner and the order passed by the
learned Chief Judicial Magistrate in C.G.R. Case No. 1085 of 2010 was set aside
by this Court and this Court directed further investigation to be conducted by the
Deputy Commissioner of Police (Special), Detective Department, Kolkata, after
collecting necessary papers as contemplated in the last page of the order. Thus,
the fact remains that Alipore P.S. Case No. 73 dated March 30, 2010 under
Sections 406/409/418/384/420/109/120B/
34 of the Indian Penal Code is still pending in investigation.
It may not be out of place to mention that the said Alipore Police Station
Case was started as regards the purchase of Premises No. 104, Dr. Megnath
Saha Sarani, located within Ward No. 90 of Kolkata Municipal Corporation.
The basis of the complaint is regarding one news item dated 17th June,
2011 as published in 6th page of ANANDA BAZAR PATRIKA which has been
quoted in Bengali language in internal page no.7 of the complaint wherein this
accused made an allegation that this accused/petitioner gave one flat in the
name of the daughter of the complainant at college para but the complainant
surreptitiously sold the share of his wife's interest in respect of the land in
Kolkata to the owner of the property and thereafter, disclosed that he had
purchased the said flat in the name of his daughter on payment of Rs. 13 lakh.
There are other allegations as levelled against that Advocate/opposite party no. 2.
On behalf of the petitioner, it was submitted by Mr. Bhattacharjee, learned
Advocate, that as the matter relating to the Alipore P.S. Case No. 73 of 2010
dated March 30, 2010 which is regarding that suit property is still under
investigation, now, it cannot be said that the alleged comments as made by this
petitioner are false or true.
He also took me to running page no. 38, i.e. the examination under Section
200 Cr.P.C. in respect of the witness, Pravat Chandra Das, wherein this witness
candidly admitted that he believes that the allegations as made out in that news
item against the opposite party no.2 are all false. Mr. Bhattacharjee tried to
convince this Court that even if the witness 2 is believed that 'the allegations are
all false', then Section 500 of the Indian Penal Code cannot apply as nothing
came out through the version of the witness that actually the prestige of the
opposite party no.2 was lowered down.
To strengthen his argument, Mr. Bhattacharjee has relied upon a decision
of this Court as reported in 2014(1) AICLR 1018 (M/s. Nishka Properties (Pvt.)
Ltd. & Anr. -vs- State of West Bengal & Anr.) wherein the co-ordinate Bench
dealing with one matter under Section 500 ruled that there is a marked
difference between 'defamation per se' and 'implied defamation', which is prima
facie not actionable and the former manifests only defamation while the latter is
an allegation mixed with imputation and the Court further observed that
defamation is a species of which mens rea is the genesis and the complaint of all
cases cannot be equated with defamation.
Mr. Bhattacharjee further submitted that in the complaint nothing has
been said before which correspondent of The ANANDA BAZAR PATRIKA, such
statement was allegedly made by the present petitioner and that none of The ANANDA BAZAR PATRIKA has been made an accused or witness even though it is the claim of the opposite party no.2/complainant that some news item was published in that newspaper on 17th June, 2011. Learned Advocate submitted that this portion is totally silent in the complaint to convince this Court that such alleged defamatory statement was at all made before any correspondent of that daily newspaper.
Mr. Bhattacharjee further submitted that this complaint was filed on 13th August, 2013 even though the alleged defamatory was published in newspaper in 2011 and as such, the complaint was filed after a gap of less than two years and this Court while assessing this application may take into consideration this dilatory approach of the complainant in filing the complaint.
Mr. Roy, learned Advocate, arguing on behalf of the opposite party no. 2, submitted by taking me to Section 500 of the I.P.C that since the period of imprisonment is for two years and as per the stipulation of Section 468 of the Code the period of limitation is three years and as such, the complaint cannot be treated as barred by limitation.
Mr. Roy further submitted by taking me to the complaint that it is true that the said correspondent of Ananda Bazar Patrika has not been made an accused but only for that reason, the opposite party no. 2 cannot be thrown out of the arena of the legal battle as Section 319 of the Code of Criminal Procedure is very much there to rope such a correspondent of that newspaper.
He further submitted that this petitioner cannot get protection under the Ninth Exception or Tenth Exception of Section 500 of the Indian Penal Code as good faith is to be decided before the trial court and not in a proceeding under Section 482 of the Code of Criminal Procedure.
Regarding the proposition that 'good faith' is to be decided before the learned trial court, Mr. Roy has cited a decision of the Apex Court as reported in (2009)1 SCC 101 (M. A. Rumugam Vs. Kittu @ Krishnamoorthy).
He further submitted that Section 482 of the Code of Criminal Procedure is to be exercised sparingly and only in a rarest of the rare case and before the floor of this court, the allegation as levelled in the complaint are enough for this court to conclude that there is prima facie case against this petitioner. He further contended by taking me to the evidence of Prabhat Ch. Das recorded under Section 200 of the Code of Criminal Procedure (page 38 of the revisional application) to say that the said witness before the trial court deposed "After going through said news item, a sense of doubt about the complainant's social status and prestige grew up in my mind".
On my asking, he also took me to the last line of his evidence which runs thus "The news item is totally false". He submitted that unless the prestige and reputation of complainant was lowered down in the esteem of others, he ought not to have come before the trial court to record his evidence under Section 200 of the Code of Criminal Procedure.
Thus, he contended that this is not a fit case to exercise the power of this court granted under Section 482 of the Code of Criminal Procedure.
In reply, Mr. Bhattacharya submitted that if the protection of good faith is very much apparent on reading the complaint, then this court will certainly exercise its power granted under Section 482 of the Code of Criminal Procedure. He further submitted that it is the constitutional right of every citizen to ventilate his or her grievance and mens rea is the main determining factor in assessing the imputation, which is punishable under Section 500 of the Indian Penal Code.
Regarding the non-examination of the correspondent of the Ananda Bazar Patrika as regards that news item, learned Advocate submitted that as the correspondent ought to have faced the dock for being examined under Section 200 of the Code of Criminal Procedure and his name must have been mentioned in the complaint as a witness and this cannot be covered by the provision of Section 319 of the Code of Criminal Procedure.
He concluded his argument by saying that the learned trial court could have conducted one enquiry under Section 202 of the Code of Criminal Procedure regarding this claim to whom this complainant made such a statement.
He also took me to paragraph No.10 of page 10 of this revisional application to fortify his case that his client has claimed that the press and the composition of the staff reporter has not been published in Toto or may be vitiated by the said staff reporter. Mr. Bhattacharya has admitted that whether any comment was made in 'good faith' is to be decided by the trial court itself.
Mr. Bhattacharya also took me to paragraph 13 of the revisional application to say that his client categorically claim that she has no connection with the said report.
Learned counsel has cited a judgment of this Court as reported in (2010) 1 C.Cr.L. (Cal) 403 (Dipankar Bagchi vs. State of West Bengal & Anr.) wherein this Court held on appreciation of the evidence under Section 200 Cr.P.C that no case was made out before the learned trial court in respect of the offence punishable under Section 500 of the IPC.
I have taken note of the argument put forward by the learned advocates of the parties and taken into consideration of the memo of this revisional application, the complaint and also the annexures which are part of this revisional application.
The fact remains that the complaint was filed on 13th August, 2013 before the learned Additional Chief Judicial Magistrate at Siliguri which was registered as C.R. Case No.433 of 2013. The date of publication of the document is 17th of June, 2011 and as such the complaint was filed roughly one and half year of the said publication. On scrutiny of the complaint it appears that there is nothing in the complaint to show which correspondent (staff Reported) of the Anandabazar Patrika published the said news item or to whom allegedly this petitioner made the statement. It is true that for late filing of the complaint it cannot be treated as barred by limitation under Section 468 of the Cr.P.C as rightly argued by Mr. Roy.
Regarding the argument of Mr. Roy that the said local correspondent of Anandabazar Patrika may be arrayed as one accused under Section 319 of the Cr.P.C is no doubt a good argument but here in the said case before this court such argument cannot give any result as the basis of the complaint is that publication which is there in internal page No.7 of the complaint itself. Unless the said local correspondent is an accused or a witness none can say that this petitioner made such remarks before him. Such publication is the basis of this litigation under Section 500 of the IPC and as such in the complaint his name must have been divulged. In paragraphs 10 and 13 in this revisional application it has been specifically claimed by the petitioner that she is in no way connected regarding such publication and that inconsistency are galore, the composition of the report has not been published in Toto and may have been vitiate by the said staff reporter (paragraph 10). In paragraph 13 the petitioner has claimed that the petitioner is no way connected with the said publication and the matter is naturally related with the Editor/Publisher of the newspaper. Thus, this Court is at one with Mr. Bhattacharyay that this correspondent ought to have been examined under Section 200 Cr.P.C to establish the claim of the complainant that actually the petitioner accused made such statement. Thus, the complaint started limping since it was filed.
It is true that the claim of good faith as I get in Section 499 of the IPC in the 8th and 9th Exception is to be proved before the learned trial court and it is well settled that one who is pleading exception must prove it. The decision of the Apex Court as passed in M.A. Rumugam (supra) will squarely apply in this case. This court is not unmindful of the fact that Mr. Bhattacharyay has conceded on this point.
Let me now examine what was stated on oath by witness Prabhat Chandra Das, who is one Advocate of Siliguri Court. He deposed that after going through the said news item in question a sense of doubt about complainant's social status and prestige grew up in his mind but he believed that this complainant is not such person and the news item was published with ill motive to defame him and lowered down his prestige. In the last line of his evidence recorded under Section 200 of the Cr.P.C this witness deposed "the news item is totally false".
Thus, this witness did not believe the publication and according to him such publication was made just to defame the complainant. His evidence is enough to say that he was not convinced that such publication lowered the moral or intellectual character to the complainant. This court can rely upon the judgment of this court as passed in Dipankar Bagchi (supra) wherein this Court in paragraph No.12 held that moral and intellectual character of the complainant must be lowered down in the estimation of the witness and only then his reputation may be treated to have been harmed. Explanation 4 of Section 499 of the IPC runs thus: "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" and keeping that explanation in view vis-à-vis of the witness Prabhat Chandra Das this Court is satisfied that such Explanation clause of Section 499 will very much apply in this case.
This Court is also of the same opinion as passed in M/s. Nishka Properties (Pvt.) Ltd. (supra) that defamation is of a species of which mens rea is the genesis. Any short of allegation with a touch of imputation against any person per se cannot be categorized as 'defamation' the court in that case also held that had it not been so there cannot be any birth of complaint against anybody. Even, though the said decision is factually different but the principle laid down in that case can very much apply in this case so far as it relates to 'mens rea' in an offence under Section 500 of the IPC.
This Court is not unmindful of the fact that Section 482 of the Cr.P.C is one extraordinary power given to this Court and such power is to be exercised sparingly and in rare of rarest cases. The discussion so long made will go to show that the complaint is defective since it's cradle as the reporter was made one witness to convince the trial court that actually this petitioner accused made such statement to that correspondent of the newspaper. It is also difficult to guess without the same man on dock as witness under Section 200 of the Cr.P.C to say that such statement was made by the accused petitioner. It cannot be said on scrutiny of the evidence of Prabhat Chandra Das that he told the court that due to such imputation the moral and intellectual character of the complainant has been lowered down in their estimation and thereby the reputation of the complainant was at all harmed. The inference of the said witness that due to such imputation the reputation of the complainant has been lowered down in the estimation of the public is of no use to make out an offence of defamation. Before the trial court no witness has been examined in whose estimation the reputation of the complainant has been lowered down due to such imputation allegedly made by the accused.
The decision as passed in Dipankar Bagchi (supra) is very much on the point and on similar fact wherein in paragraph No.13 the Hon'ble Single Judge of this Court held "Thus, in the instant case, the allegations made in the petition of complaint that due to the imputation made by the accused his reputation has been harmed and lowered down in the estimation of the others received no support from the evidence of the witnesses, the complainant examined under Section 200 of the Code. Accordingly, it must be held that no case for commission of an offence of defamation has been made out against the present petitioner". Relying on the said observation and the facts and circumstances of this case this Court is satisfied that further proceeding of the Complaint Case No.433 of 2013 now pending before the Judicial Magistrate, 2nd Court at Siliguri, District-Darjeeling will be an abuse of process and this Court must exercise its discretion granted under Section 482 of the Cr.P.C in favour of the petitioner.
In the result the criminal revision succeeds. The impugned complaint stands quashed. Criminal revisional application is thus disposed of on contest in presence of the opposite party No.2 the State has no role in this matter and the State has not contested the application.
The criminal section is directed to deliver urgent Photostat certified copy of this judgment to the parties, if applied for, be given as early as possible.
The office is directed to forward a copy of this judgment to the learned trial court for compliance.
(Indrajit Chatterjee, J.)