Punjab-Haryana High Court
Prem Harjit Singh & Another vs Nirmal Harjit Singh on 23 August, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
Criminal Misc. No. 24889 of 2012
[1]
IN THE HIGH COURT FOR THE STATES OF PUNJAB &
HARYANA AT CHANDIGARH
Criminal Misc. No. 24889 of 2012(O&M)
Date of Decision: 23.08.2012
Prem Harjit Singh & another ..Petitioners
Versus
Nirmal Harjit Singh ..Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
Present : Mr. Jaideep Verma, Advocate, for the petitioners.
****
Paramjeet Singh J. (Oral)
In the instant petition filed under Section 482 of the Code of Criminal Procedure, 1973, (for short 'Cr.P.C.'), challenge is to the Criminal Complaint No. 39/1 of 13.09.2007 (Annexure P-1) titled as 'Nirmal Harjit Singh V. Sikander Singh', under Sections 500 and 406 of the Indian Penal Code as well as summoning order dated 28.02.2009 (Annexure P-9) passed by Additional Chief Judicial Magistrate, Ludhiana and all consequential proceedings arising therefrom.
Brief facts of the case are that petitioner No.1 and respondents are brothers and petitioner No.2 is son of their sister. Father of the respondent-complainant died in the year 1985 and the mother of the complainant died in 1995. Father of the petitioner No. 1 and the respondent left behind some properties at Kolkata, Ludhiana and Chandigarh. It is alleged that a Will was executed by the father in favour of the complainant as well as the mother of the complainant, Criminal Misc. No. 24889 of 2012 [2] namely, Kant Kaur. After the death of the father, the mother started residing with the respondent-complainant and she executed a Will in favour of the sons of the respondent-complainant and mother died in the year 1995. The property was transferred in the name of Jasjit Singh an adopted son of petitioner No.1 and Manpreet Singh, son of the respondents. Petitioner No.2 is also the son of the real sister of the complainant. They were annoyed as to why the Will has been executed in favour of the complainant and his sons. In order to blackmail and pressurize the respondent-complainant, firstly they moved false applications against the respondent-complainant and his sons as well as the son-in-law. One of the application was given to the Senior Superintendent of Police and a copy was sent to S.H.O. Police Division No. 5, Ludhiana. The police officials visited the house of the respondent-complainant and also made enquiries into the alleged complaint of the petitioners and found the same to be false and complaints were dismissed. Thereafter, other complaints were also moved which met the same fate. Feeling aggrieved against the false complaints and defamation of the respondent-complainant and his family members, the respondent-complainant filed a complaint dated 13.9.2007 (Annexure P-1) in which the petitioners have been summoned vide summoning order dated 28.2.2009 (Annexure P-9). Hence the petitioners have approached this Court.
I have heard the learned counsel for the petitioners and perused the record.
Criminal Misc. No. 24889 of 2012 [3] The learned counsel for the petitioners contended that petitioners have given applications to the police authorities as they were aggrieved against the act of the respondent-complainant and were also apprehending danger to their life at the hands of the respondent- complainant. No case against the petitioners is made out as submitting an application to the police authorities is a legal right of the petitioners and they are protected under Section 499 (8th & 9th exceptions) of the Indian Penal Code which read as under:-
"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.
Ninth Exception.- Imputation made in good faith by person for protection of his or other's interests.- It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.:"
By referring to the above exceptions, specifically, Exception Eighth, learned counsel for the petitioners contended that the complaint is not maintainable and the summoning order is not sustainable. Consequently, the subsequent proceedings arising therefrom are also not sustainable. Learned counsel for the petitioners relied upon a judgment of this Court in Kamlesh Kaur V. Lakhwinder Singh and another 2009(4) R.C.R.(Crl.) 663 and Jit Singh V. Baljit Kaur 1999(3) R.C.R. (Crl.) 406.
Criminal Misc. No. 24889 of 2012 [4] The star argument of the learned counsel for the petitioners is that allegations made to the police alleging the commission of offence would be covered in Eighth Exception to Section 499 of the Indian Penal Code and it would not constitute any defamation. The petitioners had not published anything against nor defamed the respondent-complainant in public eye and only had made a complaint to the competent authority i.e. the police. As such, no offence is made out.
I have considered the contentions of the learned counsel for the petitioners. Section 499 of the Indian Penal Code defines defamation and the Exceptions provided in the Section as reproduced above clearly indicate that if the report lodged to the police contains defamatory accusation then it ought to have been taken out of the ambit of the above quoted Eighth Exception. The very purport of the Eighth Exception is that an accusation against any person made to a lawful authority would not be considered as defamation only if it is shown that the accusation was made in good faith. A perusal of the record reveals that the petitioners had made three applications to different police authorities. First application was given by petitioner No.1 on 03.10.2004 (Annexure P-1). Thereafter, both the petitioners gave applications dated 10.01.2007 (Annexures P-3 & P-4) to different police authorities. In all the three applications, enquiries were separately done and accusations were found to be false and those applications were dismissed/filed. The enquiry reports of those Criminal Misc. No. 24889 of 2012 [5] applications are dated 23.10.2004 (Annexure P-5), 2.11.2004 (Annexure P-6), 9.7.2007 and 13.7.2007 (Annexure P-7) and 12.3.2007 (Annexure P-8). In all the enquiry reports, the accusations have been found to be false and applications were filed. The respondent-complainant and his family members were repeatedly called for investigation in the police stations and before Deputy Superintendent of Police and other authorities as such the repeated complaints apparently come within the sweep of the words intended to be read by various persons with a purpose of causing harm or knowing or having reason to believe that such imputation will harm the reputation of such person. There is no presumption that the petitioners have filed the applications in good faith to the police authorities. The good faith is to be proved by bringing the reports within the ambit of Eighth Exception by leading evidence.
In view of the above, the aforesaid contention of the learned counsel for the petitioners fails and cannot be accepted. This Court in Tarlok Nath and others V. Ram Sarup and Anr. 1986(2) R.C.R. (Crl.) 576 has taken a similar view.
Another aspect of the case is that under Section 482 of the Code of Criminal Procedure, the facts cannot be proved. It is a settled principle of law that those who plead exceptions must prove it. The burden of proof that this action was bonafide would, thus be on the petitioners alone. At this stage, in my opinion, it would be pre-mature to consider the material referred to in the petition by the petitioners. To Criminal Misc. No. 24889 of 2012 [6] arrive at a definite conclusion that there was no element of bad faith on the part of the petitioners in making the said complaints before the police authorities, evidence is required to be led. The Hon'ble Supreme Court has taken a similar view in M.A. Rumugam V. Kittu @ Krishnamoorthy 2009(1) S.C.C. (Crl.) 245 in paras No. 19, 20 and 21 which are reproduced hereinbelow:-
"19. For the purpose of bringing his case within the purview of the Eight and the Ninth Exception appended to Section 499 of the Penal Code, it would be necessary for the appellant to prove good faith for the protection of the interests of the person making it or of any other person or for the public good.
20. It is now a well-settled principle of law that those who plead exception must prove it. The burden of proof that his action was bonafide would, thus, be on the appellant alone.
21. At this stage, in our opinion, it would have been premature for the High Court to consider the materials placed by the appellant before it so as to arrive at a definite conclusion that there was no element of bad faith on the part of the appellant in making the said complaint before the police authorities."
The learned counsel for the petitioners fails to point out any infirmity in the summoning order passed by the trial Court and whatever evidence is to be led by the petitioners, that is required to be gone into by the learned trial Court.
No other point was argued by the learned counsel for the petitioners.
In view of the above discussion, the present petition is dismissed in limine.
23.08.2012 (PARAMJEET SINGH) 'ravinder' JUDGE