Orissa High Court
Swamy Aroopananda vs Bagmisri Nilamadhaba Bramha And Ors. on 5 May, 2000
Equivalent citations: 2000CRILJ4296, 2000(II)OLR159
Author: B.P. Das
Bench: B.P. Das
JUDGMENT B.P. Das, J.
1. This application is directed against the order dated 17.5.1997 passed by the Sub-divisional Judicial Magistrate, Bhubaneswar, taking cognizance under Section 500, Indian Penal Code (for short the I.P.C.") against the petitioner in I.C.C.No. 137 of 1997.
2. The allegations in this revision petition are that a complaint was filed by one Bagmisri Nilamadhaba Bramha, Advocate, Orissa High Court, alleging therein that the complainant came across a news item in daily newspaper "THE SAMBAD" dated 1.5.1996 under the heading 'PURATAN MATHA, MANDIRARA SURAKHYA ANDOLANA KARAZIBA - SWAMY AROOPANANDA". According to the complainant, in the said news item some false allegations were made against the Commissioner of Endowments, Orissa which are defamatory in nature.
Decided on 5th May, 2000. As per the complainant, present petitioner Swamy Aroopananda made a statement that the Commissioner of Endowments, Orissa is going on granting permission for illegal sale of the landed properties of several old Maths and temples, keeping his own interest in view. It is further alleged in the complaint petition that the said Swamy Aroopananda declared in the said statements to create public opinion in the forthcoming days, against such action of the Endowment Commissioner and demanded for a C.B.I. enquiry in relation to alienation of Debottar properties. The complaint was filed against the present petitioner on the allegation of making defamatory statements and against the Editor and Publisher of newspapers, who published the statements of the petitioner in the newspapers which were defamatory in nature. According to the complainant the petitioner tried to defame the Commissioner of Endowments, a Senior Judicial Officer, intending to harm his reputation. It was further alleged in the complaint that orders passed under Sections 19, 25, 35 and 68 of the Orissa Hindu Religious Endowments Act are judicial orders and therefore, no opinion can be given in the newspaper. The learned Magistrate prima facie found that an offence has been committed and took cognizance under Section 500, IPC against the petitioner as well as opposite parties 2 and 3. Interestingly while perusing the complaint petition, I find that Sri Gopinath Panda, Orissa Superior Judicial Service (Senior Branch), the then Commissioner of Hindu Religious Endowments, Orissa Bhubaneswar was cited as a witness in the said complaint petition. This Court is yet to know whether his name was cited with his consent or without his knowledge. Be that as it may, let me examine whether the Magistrate is correct in taking cognizance under Section 500, IPC.
3. As stated by the learned counsel for the petitioner, a case under Section 500, IPC has not been made out. Let me reproduce the definition of defamation as contained in Section 499, IPC.
"499. Whoever, by words either spoken or intended to be read, A 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."
So far as punishment for defamation is concerned, Section 500, IPC which prescribes the same, is quoted below :
"Section 500. Punishment for defamation - Whoever defame another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both."
4. On a bare reading of the aforesaid sections, it is clear that a person shall be punished under Section 500, IPC if he defames another person.
Law is well settled that in order to bring the defamatory imputations within the meaning of Section 499, IPC ill-will or malice on the part of the writer or publisher is not necessary to be proved. The complainant also need not prove that he suffered on account of the publication. It is enough if it is shown that the accused intended or knew or at least had reason to believe that the defamatory imputation made by him would harm the reputation of the complainant. But it is a condition precedent to maintain a prosecution for defamation that the complaint is by a person aggrieved of the offence. Because Section 199, Cr.P.C. contains a prohibition against the Courts from taking cognizance of an offence of defamation under Section 499, IPC otherwise than on a complaint from a person who is aggrieved by the offence. It is profitable to quote the relevant portion of Section 199, Cr.P.C.
"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 persons aggrieved by the offence."
5. Hence, a complaint is to be made by some person aggrieved by the offence. Section 199, Cr.P.C. lays down an exception to the general rule by permitting only an aggrieved person to make complaint. Section 199, Cr.P.C. is mandatory so that if a Magistrate takes cognizance of the offence of defamation on complaint filed by one who is not aggrieved the trial and conviction would be void and illegal. This view finds support from a decision of apex Court in case of G. Narasimhan and others etc. etc. v. T.V.Chokkappa, reported in AIR 1972 SC 2609. From this it follows that if a complaint filed by one who is not an aggrieved person. the cognizance of offence will not only be incompetent but also the trial and conviction would be void. Learned counsel of the petitioner in course of hearing drew my attention to a decision of Kerala High Court, reported in 1986 Cri.L.J. 2002 (M.P.Narayan Pillai v. H.P.Checko), wherein it has been held that the judicial act of taking cognizance in violation of the bar itself will be an abuse of the process of Court.
6. The facts and circumstances of the case cited in the aforesaid decisions are similar to that of the case at hand wherein a complaint has been filed by a lawyer and the Commissioner of Hindu Religious Endowments has been cited as a witness in the complaint petition. So it is not the lawyer who has been aggrieved by the alleged offence committed by the petitioner. Hence, the bar under Section 199, Cr.P.C. is squarely applicable to this case. The learned Magistrate, who was functioning as S.D.J.M. has lost sight of the aforesaid statutory bar and has taken cognizance being swayed away by the statements of the complainant and most probably seeing the name of Endowment Commissioner in the list of witnesses. It shocked my conscience, that a Magistrate having been empowered to take cognizance of the offence is at dark about the statutory provisions. In my opinion the impugned order taking cognizance is nothing but an abuse of the process of the Court. The cognizance taken in I.C.C. No. 137 of 1997 is hereby quashed.
In the result, the Criminal Misc. Case is allowed.