Calcutta High Court (Appellete Side)
M/S. Nishka Properties (Pvt.) Ltd. & Anr vs The State Of West Bengal & Anr on 7 August, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
1 07/08/2013
CRR No. 2516 of 2008
with
CRR No. 2517 of 2008
with
CRR No. 2518 of 2008
with
CRR No. 2520 of 2008
M/s. Nishka Properties (Pvt.) Ltd. & Anr.
vs.
The State of West Bengal & Anr.
Mr. Sekhar Basu, Sr. Adv.
Mr. Milon Mukherjee, Sr. Adv.
Mr. P. C. Motilal, Adv.
Mr. Debashish Roy, Adv.
Mr. Sandipan Ganguly, Adv.
Mr. R. P. Matilal, Adv.
... For the petitioner
Mr. (Dr.) Akbar Ali Khan
... For the O.P. No. 2 (in-person)
As the learned Advocates for both the parties submitted that the subject-matter of CRR No. 2516 of 2008; CRR No. 2517 of 2008; CRR No. 2518 of 2008 and CRR No. 2520 of 2008 are same, so, by a common judgment, all the matters are taken up for disposal.
An application under Section 482 of the Code of Criminal Procedure, 1973 was lodged for quashing of the proceedings of case No. C-1284/2008 under Section 500 IPC pending before the Court of learned JM, 9th Court, Alipore.
The short background of the case is that the petitioner No. 2 is the Managing Director of the company viz. Pataka Industries Pvt. Ltd. having its office at Trimurthi Apartment, 4th Floor, 97, Park Street, Kolkata-700016 while the petitioner No. 1 is a company 2 incorporated under the Companies Act, 1956 having its office at 13B, Balu Hakkak Lane, P.S. Karaya, Kolkata-700017. The case No. C-1284/2008 had been instituted on the basis of the complaint filed by the Opposite Party No. 2 before the Court of learned CJM, South 24 Parganas, Alipore inter alia alleging commission of offence by the petitioners punishable under Section 500 IPC. The allegations leveled in the compliant are i) the Opposite Party No. 2 is an IPS Officer and hold an important and respectable position in the society being posted as the DIG, Police, Home Guards, W.B.; ii) having faith and respect in complainant, the Opposite Party No. 2 and his wife, in the year, 2004, a large number of people of the ancestral home in a village of Gazipur, U.P. had given cash in trust to the Opposite Party No. 2 for purchase of land at Rajarhat, Kolkata. The Opposite Party and his wife contacted the land broker Abdur Rahim Gazi for purchasing land. He was given cash of Rs. 1,02,50,000/- by the wife of the Opposite Party No. 2. The said money was given to him in different installments between 25.2.2004 to 1.9.2004 in good faith and trust. All such payments were recorded by the Opposite Party No. 2 in his diary. However, the said Abdur Rahim Gazi in collusion with the accused persons fraudulently used the said sum of Rs. 1,02,50,000/- for purchasing 76 bighas of land in the name of three companies viz. accused 4, 5 and 6. The said Gazi alongwith the six accused persons in collusion with each other had fraudulently and dishonestly used the said amount of money for purchasing 70 bighas of land for Rs. 69,70,425/- in the name of the accused No. 4, 5 and 6 and 3 misappropriated the balanced amount of Rs. 57,50,000/-. In the month of September, 2007, the Opposite Party No. 2 filed a complaint being case No. 8738 of 2007 before the learned JM, 9th Court, Alipore against cheating and fraud committed by the accused persons. The learned Magistrate transferred the case to the court of learned Judicial Magistrate, 8th Court, Alipore for enquiry. The learned Judicial Magistrate, 8th Court, Alipore issued summons to stand trial against the accused persons for offence punishable under Section 420/406/120B IPC. They were enlarged on bail. The Opposite Party No. 2 and his wife also filed a civil suit before the court of 7th Civil Judge, Senior Div., Alipore being T.S. No. 994 of 2007 against the accused persons including Gazi. Status quo order was passed.
Suppressing the material facts, the accused persons filed an application under Order XXXIX, Rules 1 and 2 read with Section 151 of the Code of Criminal Procedure before the court of learned Civil Judge, Jr. Div., 6th Court, Alipore in T.S. No. 325/08. The letters/documents put in the annexure are defamatory to Opposite Party No. 2. The letter dated 3.3.2005 written in Bengali vernacular by the accused No. 1 to the Hon'ble Chief Minister, W.B. contained defamatory allegations against Opposite Party No. 2. The letter dated 25.5.2005 written by the company of the petitioner No. 2 to the Member Secretary, Home Department, Govt. of W.B. contained the following defamatory allegations:
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"... I ascertained that despite the fact that the company had paid Akbar Ali Khan, DIG an amount of Rupees One crore sixty lacs he had only made over an amount of Rupees One crore Two lacs fifty thousand to Abdur Rahim Gazi for the purchase of land. He refused to handover 72 IGRs of the land purchased for Nishka Properties and Eureka Properties which was handed over to him by Abdur Rahim Gazi. Akbar Ali Khan also sent a note to our Chairman advising him against lodging any complaint against him. It would be evident from the above that Shri Akbar Ali Khan, DIG had illegally retained an amount of Rupees fifty seven lacs fifty thousand of money belonging to our company, for his personal use, alongwith the IGRs of the lands that have been purchased for the company.
In view of the above, I do hereby lodge a complaint against Akbar Ali Khan, DIG of Police, Home Guards having its office at Bikash Bhavan, Salt Lake, Kolkata and residing at Ballygunge Circular Road, Kolkata for having committed Criminal Breach of Trust of an amount of Rupees fifty seven lacs fifty thousand which was paid to him with other money for the purchase of land. Akbar Ali Khan has also illegally retained IGRs of those lands purchased for our company.
Similarly, in the letter dated 20.3.2006 written by the petitioner No. 2 to the Hon'ble Chief Minister, W.B. the following defamatory statements have been made:
"I am shocked to see one Govt. servant of IPS status using his position and office for his undue personal interest. Meanwhile, 5 Mr. Khan has indeed arranged a complaint in Kolkata Leather Complex P.S., South 24 Parganas against Mr. Abdur Rahim Gazi..."
In the letter dated 13.5.2006 from M/s. Pataka Industries Pvt. Ltd. the following defamatory statement has been made:
"I, Ganesh Chandra Sen, son of Ranjit Kumar Sen, Manager (Accounts) of Pataka Industries of 97, Park Street, P.O. Park Street, Kolkata-700 016 do hereby submit that this complaint against one Akbar Ali Khan of B-8, Govt. Housing Estate, 32, Ballygunge Circular Road, Kolkata-700 019, P.S. Ballygunge who was entrusted with Rs. 16,00,0000/- to buy land in Hathisala Mouza under P.S. Kolkata Leather Complex and who had misappropriated the same by withholding Rs. 57,50,000/-.
In the letter dated 22.1.2008 written by the petitioner No. 1 to the Officer-in-Charge, Kolkata Leather Complex P.S., the following defamatory statements have been made:
"... The contents of the said defence must have infuriated Dr. Akbar Ali Khan and he alongwith his two associates under the disguise of making an out of court settlement came to our office at 97, Park Street, Kolkata-16 on 11.1.2008 at about 3 P.M. and abused me and the other Directors profusely and threatened that if we do not withdraw our defence as well as the complaint before the Vigilance Commission and Inquiry Officers, he would take the local elements and exercise his influence to dispossess us from our properties at Hathisala, Rajarhat...6
On 21.1.2008, at about 1 P.M. some five/six unknown persons came to our properties at Hathisala Mouza and tried to identify our plots. On being questioned, the said persons said that they are acting on the instruction of the Police and Dr. Akbar Ali Khan and have been asked by them to take possession of the said plots.
On protest being made, the said persons left the place but they threatened to return shortly with more persons to occupy, if necessary forcefully our company's properties..."
The statements made are false, baseless and defamatory and scandalous. Those were made by the accused persons with a view to damage the intellect of the Opposite Party No. 2 and to lower his image and good name and fame in the eyes of the Hon'ble Chief Minister, W.B. and among the others like colleagues, subordinates, staff, friends etc. and public at large. Thus, the accused persons have committed offence punishable under Section 500 IPC.
On 25.3.2008, the Opposite Party No. 2 was examined and his statement was recorded and finding a prima facie case made out against the accused persons under Section 500 IPC before the learned J.M., 9th Court, Alipore issued process against them.
On the other hand, the case of the present petitioner is as follows:
M/s. Nishka Properties Pvt. Ltd. being the petitioner No. 1 company, is under the Management of Pataka Industries Pvt. Ltd. alongwith M/s. Subarnarekha Properties Pvt. Ltd. And Eureka 7 Properties Pvt. Ltd. and together they form the Pataka Industries Pvt. Ltd.
With the intention to increase business of Pataka Group of Companies, it was intended that "Pataka Food Park" and a model residential school would be set up by Pataka Group in or around Kolkata Airport and in course of such search for land, the company came in contact with Abdur Rahim Gazi, who claimed himself to be a reputed land broker of the locality. Abdur Rahim Gazi further represented that he had helped to procure land for M/s. Robin Gold Trading Co. Ltd., its representative, being the Opposite Party No. 2 herein.
In such circumstances, the petitioner No. 2, contacted the Opposite Party No. 2 who was known to him for long time and disclosed his desire for purchasing 150 bighas of land at Hathisala, Rajarhat for and on behalf of Pataka Group of companies and asked him about the integrity and efficiency of said land broker Abdur Rahim Gazi.
The Opposite Party No. 2 upon coming to know about interest of Pataka Group for purchasing land at Hathisala, Rajarhat offered his help to act as an agent as also render all services to monitor/supervise purchase of land as also all monetary transactions including registration of the land in favour of the buyer. As the Opposite Party No. 2 was a family friend and well- known to the petitioner No. 2, it was decided to accept the said offer of the Opposite Party No. 2.8
Subsequently, from time to time, a sum of Rs. 16,00,0000/-, by way of cash, was entrusted with the Opposite Party No. 2 towards purchase of the said 150 bighas of land at Rajarhat. 76 bighas of land were purchased at Rajarhat between February, 2004 to August, 2004 by 110 registered Sale Deeds executed by the respective vendors in favour of the group companies of the Pataka Group.
The Opposite Party No. 2 started insisting upon the petitioner No. 2 to form a partnership firm with the Opposite Party No. 2 in land-trading business and asked Mr. Mustak Hossain not to retain the land already bought in the name of the representative companies but to dispose of the same at a higher price and to invest the proceeds in land trading business with the Opposite Party No. 2. As Mr. Mustak Hossain did not accept the said proposal, the Opposite Party No. 2 thereafter deliberately withheld the original registration slips, being IGRs, in respect of the plots of land bought on behalf of the respective companies. Towards the end of August, 2004, Abdur Rahim Gazi, for the first time, disclosed to the petitioners that he has received a sum of Rs. 1,02,50,000/- only in 27 instalments from the Opposite Party No. 2 towards consideration money of the land purchased, he has not received any amount towards brokerage/remuneration despite repeated demands.
Further as the Opposite Party No. 2 had stopped payment no further lands could be purchased.
In such circumstances, Mustak Hossain i.e. the petitioner No. 2 demanded accounts from the Opposite Party No. 2 in respect of the money entrusted to him but the Opposite Party No. 2 avoided 9 providing such accounts. Subsequently, the Opposite Party No. 2 was compelled to handover the registration slips of the land purchased at the intervention of senior executives/officers of the Home Department, Govt. of W.B. but he refused to render accounts or return the balance amount of money lying with him.
Finding no alternative, Mustak Hossain wrote a letter of complaint dated 3.3.05 to the Hon'ble Chief Minister, W.B. who was in charge of the Home Ministry at that relevant point of time, intimating him about the illegal activities of the Opposite Party No.
2. On receipt of the complaint dated 3.3.05 at the instance of Hon'ble Chief Minister, W.B., Mr. Ajoy Prasad, DIG of Police, W.B. took quick action and was pleased to forward the said compliant dated 3.3.2005 of Mustak Hossain to Sri Rama Krishnan, Additional Director General, Administration for enquiry.
A confidential enquiry was held wherein the said Abdur Rahim Gazi and the petitioner No. 2 made statements and finally Sri Rama Krishnan was pleased to arrive at a finding that the allegations against the complainant/Opposite Party No. 2 herein was substantiated and he recommended that a criminal case be initiated against the Opposite Party No. 2 for criminal breach of trust.
Subsequently, the government authorities had decided to refer the entire matter to the Vigilance Commissioner, W.B. for further enquiry and an enquiry proceeding was duly held by the Inquiring Authority, Vigilance Commissioner, W.B. and 23 prosecution witnesses were examined, voluminous documents were 10 made exhibits. In course of such enquiry, the Opposite Party No. 2 gave out threats to the Directors, shareholders and employees of the Pataka Group with dire consequences in the event they continued with the said demand against the Opposite Party No. 2.
By a letter dated 23rd November, 2006, the Joint Secretary, Govt. of W.B., Personnel and Administrative Reforms Department, Vigilance Cell had forwarded to Dr. Akbar Ali Khan (Opposite Party No. 2 herein) true copy of the report of Sri Hara Prasad Chattopadhyay (Retd. Member of WBHJS) Inquiring Authority Vigilance Commission, Govt. of W.B. and asked for explanation/representation of Dr. Akbar Ali Khan. In the said inquiring proceeding, Dr. Akbar Ali Khan, IPS was examined as solitary Defence Witness. In the said inquiry it was held that "it is proved that Shri Akbar Ali Khan, IPS while functioning as DIG, Home Guard, in course of his active involvement in the Real Estate business received Rs. 1.6 crores from Mustak Hossain, Chairman of M/s. Pataka Industries P. Ltd. on different dates between February, 2004 to August, 2004 in order to purchase land at Rajarhat through Abdur Rahim Gazi a land broker and paid Rs. 1,02,50,000/- part by part to said Gazi and an amount of Rs. 57,50,000/- was misappropriated and such conduct shows lack of integrity which is improper and unbecoming of a public servant, as such violative of Rule 3(1) of All India Services (Conduct) Rules 1968. The Charged Officer is found guilty of Articles of Charge. Against the aforesaid show cause letter dated 23.11.2006, the Opposite Party No. 2 has 11 moved before the Central Administrative Tribunal, Kolkata and the matter is pending.
The Opposite Party No. 2 realising that his misdeeds have come out and his service has come under cloud filed T.S. No. 994/2007 before the 7th Court of learned Civil Judge, Sr. Div., Alipore for declaration and injunction against the petitioner No. 1 and other group companies of Pataka Group praying for declaration that the Opposite Party No. 2 and his wife are true owners of the land purchased by the said Company.
On 19.5.2006, one Ganesh Ch. Sen, the authorised representative of Pataka Industries had filed an application under Section 156(3) of the Code of Criminal Procedure before the learned C.M.M., Calcutta being case No. C-4252 of 2006 disclosing commission of offence by Opposite Party No. 2 punishable under Section 406/409/411/420 IPC. The learned C.M.M., Calcutta directed the O.C., Park Street Thana to put investigation but the O.C. submitted report stating that the accused being an IPS Officer, the investigation should be completed by Commissioner of Police. Later, the learned Magistrate dropped the proceedings. As a retaliatory measure, the petitioner No. 2 created a defence against the allegations. The present impugned proceedings and other proceedings have been initiated by the Opposite Party No. 2 on fake and false allegations. In order to protect its interest the petitioner No. 1 filed suit for permanent injunction before 6th Court of learned Civil Judge, Jr. Div., Alipore being T.S. No. 325/2008 against Opposite Party No. 2.
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The petition of complaint of the impugned proceedings falls within the jurisdiction of Park Street P.S. and Karaya P.S. respectively and those are beyond the territorial jurisdiction of Alipore. Section 202 of the Code of Criminal Procedure states that any Magistrate, on receipt of a complaint which has been made over to him under Section 192, shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. It is thus apparent that in cases where the accused resides outside the territorial jurisdiction of the Court of the Magistrate, the learned Magistrate is required either to inquire himself or to direct investigation by a police officer or any other person deemed fit by the learned Magistrate. The said requirement of law needs to be respected and complied with care and caution and not to be treated as a mere empty formality. From a perusal of the orders passed by the learned Magistrate, it is apparent that the learned Magistrate recorded the statement of the Opposite Party No. 2 under Section 200 of the Code of Criminal Procedure, but thereafter did not take any further steps, as envisaged under Section 202 of the Code of Criminal Procedure. In view of the mandatory nature of the provisions of Section 202 of the Code of Criminal Procedure, relating to issuance of process against persons residing outside the jurisdiction of the court of the learned inquiring 13 Magistrate, it is apparent that the issuance of process by the learned Magistrate through the order impugned needs to be set aside and proceedings No. C-1284/2008 be quashed.
The prosecution case as delineated in the petition of the proceeding as also the statement of the Opposite Party No. 2 as recorded on solemn affirmation before the learned Magistrate reflects that certain letters were written by the petitioner No. 2 to the Hon'ble Chief Minister of W.B., Chief Secretary, W.B. as also the Officers-in-Charge, Park Street P.S. and Kolkata Leather Complex P.S. It is also alleged that certain letters were written by Pataka Industries to the Principal Secretary, Home Dept., W.B. and the Officers-in-Charge, Park Street P.S. and Kolkata Leather Complex P.S. It is also alleged that the letters which contained defamatory imputations against the Opposite Party No. 2 were annexed to the Plaint of T.S. 325/2008 which is pending before the learned Civil Judge, Jr. Div., 6th Court, Alipore and has been filed by M/s. Nishka Properties Pvt. Ltd. i.e. the petitioner No. 1. The contents of the said purported defamatory letters related to certain allegations made against the Opposite Party No. 2 regarding acts committed by him which has caused serious threat and financial prejudice to the 'Pataka Group of Companies'. Issuance of letters by the petitioner No. 2, being the Chairman of Pataka Group, to the various superior administrative authorities including the Hon'ble Chief Minister, W.B. cannot but be construed to be the action taken by him for protection of his interest as also for bringing to the notice of the authorities, who are in a position superior to the Opposite Party No. 2, about the 14 activities of the Opposite Party No. 2 which was not in consonance with his position as a member of the IPS. Such action clearly stands covered within Exceptions 8 and 9 to Section 499 IPC and thus the writing and sending of such letters and subsequent use thereof in a plaint and application under Order 39 Rule 1 and 2 of Code of Civil Procedure, which has been filed before a competent court of law for redressal of the grievances of the petitioner No. 1 company cannot be construed to constitute the offence of defamation. In such circumstances, the impugned proceedings are clearly not maintainable in the eye of law and hence the same are liable to be quashed by this Hon'ble Court.
In support of their contention different learned counsel for different petitioners submitted that there is no iota of ingredient to show that a prima facie case has been made out to take cognizance for allegedly commission of offence under Section 500 IPC. The learned counsel further, in addition, to oral submission placed written notes of argument in favour of the petitioners.
On the other hand, the Opposite Party appeared in-person. He not only made exhaustive oral submission but also submitted written notes of argument. His main contention is that there is no ground for quashing of the proceedings in the learned court below as the case does not fall into the category of rare cases as held by the Hon'ble Supreme Court while dealing with the prayer for quashing of a case under the provisions of Section 482 of the Code of Criminal Procedure.
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In support of their case learned counsel for the petitioner cited before me the following decisions:
a) Shatrughna Prasad Sinha vs. Rajbhau Surajmal Rathi 1997 Cri LJ 212
b) Dipankar Bagchi vs. The State of West Bengal (2010) 1 C Cr LR (Cal) 403
c) D.M.Seth vs. Ganesh Narayan R. Poddar, Chairman, Shree Sankar Mills Ltd. & Ors. 1993 Cri LJ 1899 (Bom.)
d) National Bank of Oman vs. Barakara Abdul Aziz (2013) 2 SCC 488.
On the other side, the Opposite Party No. 2 cited the following decisions:
a) Iridium India Telecom Ltd. vs. Motorola Incorporated & Ors. CRA No. 688 of 2005 (decided on 20.10.10)
b) Rameshwara Jute Mills Ltd. vs. Sushil Kumar Daga (2009) Cri LJ 2727
c) John Thomas vs. Dr. K. Jagadeesan AIR 1992 Supreme Court 2206
d) Jeffrey J. Diermeier & Anr. vs. State of W.B. & Anr. CRA No. 1079 of 2010
e) Shamsher Singh vs. H.S.Malik 22 (1982) DLT 1, and
f) M. N. Damani vs. S. K. Sinha & Ors.
CRA No. 596 of 2001 (decided on 2.5.01) For better appreciation of the matter, Sections 200 and 202 of the Code of Criminal Procedure and Sections 499 and 500 IPC are reproduced hereunder:
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S. 200 CrPC - Examination of complainant - A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate.
Provided that when the complaint is made in writing, the Magistrate nee not examine the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192;
Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not reexamine them.
S. 202 CrPC - Postponement of issue of process - (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for 17 the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made -
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if thinks fit, take evidence of witness on oath;
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section 1 is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.
S. 499 IPC - 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 18 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 disgraceful.
First Exception - Imputation of truth which public good requires to be made or published - It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
Second Exception - Public conduct of public servants - It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his 19 public functions, or respecting his character, so far as his character appears in that conduct, and no further.
Third Exception - Conduct of any person touching any public question - It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question and respecting his character, so far as his character appears in that conduct, and no further.
Fourth Exception - Publication of reports of proceedings of Courts - It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.
Fifth Exception - Merits of case decided in Court of conduct of witnesses - It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.
Sixth Exception - Merits of public performance - It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.
Seventh Exception - Censure passed in good faith by person having lawful authority over another - It is not defamation in a person having over another any authority either 20 conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
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.
Tenth Exception - Caution intended for good of person to whom conveyed or for public good - It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.
S. 500 IPC - Punishment for defamation - Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years or with fine or with both.
It was argued by the Opposite Party No. 2 that Section 202(1) of the Code of Criminal Procedure does not prescribe any 21 specific method or mode of enquiry like X or Y or any particular duration of inquiry like an hour or a day. It is left to the judicial discretion of the learned Magistrate to conduct such inquiry for the purpose of deciding whether or not there is sufficient ground for proceeding. The Section also specifies the purpose for which the said inquiry is required to be conducted by the learned Magistrate which is to decide "whether or not there is sufficient ground for proceeding". The complainant states and submits that since the defamatory documents are in writing and are obviously defamatory as a bare perusal of those documents would clearly show the learned Magistrate was fully satisfied that there were sufficient grounds for proceeding in the matter and hence issued the summons against the accused. Therefore, there was no need to postpone issue of process on the alleged ground that the accused were residing at a place beyond the area in which the learned Magistrate exercised his jurisdiction.
The learned Magistrate examined the complainant on S.A. and on perusing the published defamatory documents came to the conclusion that a prima facie case under Section 500 IPC is made out against the accused and accordingly issued the summons. The published material is defamatory per se and no witnesses are required to be examined before issuing such summons. The learned Magistrate did inquire from the complainant during S.A. by asking questions and only on being satisfied after such inquiry he issued the summons. Since the published defamatory material is in writing and is clearly defamatory, the inquiry conducted by the learned 22 Magistrate was enough to satisfy him regarding the prima facie case against the accused and hence he issued the summons.
The Opposite Party No. 2 further states and submits that Section 202(1) of the Code of Criminal Procedure as amended in 2006 has been extensively discussed by this Hon'ble Court in Rameswara Jute Mills Ltd. vs. Sushil Kumar Daga which further shows as to why the contention of the petitioners on this ground is not tenable under the law.
The Opposite Party No. 2/complainant further states and submits that the decision of the Hon'ble Supreme Court in the case of National Bank of Oman (supra) cited by the petitioners is not applicable in the present case as the learned Magistrate did conduct the prescribed inquiry into the complaint as mandated in Section 202(1) of the Code of Criminal Procedure by himself perusing line by line and page by page the defamatory documents and asking questions and seeking informations and clarifications from the complainant and only on being fully satisfied that a prima facie case has been made out by the complainant against the petitioners/accused persons under Section 500 IPC, the learned Magistrate was pleased to issue the summons against the accused persons. It is also pertinent to mention that the Hon'ble Apex Court did not quash the proceeding in the case of National Bank of Oman (supra) but only remitted back the matter to the learned Magistrate to pass fresh orders in compliance with Section 202 of the Code of Criminal Procedure uninfluenced by prima facie conclusions of High Court. It further said that inquiry under Section 202 is limited only 23 to ascertain truth or falsehood of allegations made in the complaint. The Hon'ble Court observed as under:
"The duty of a learned Magistrate receiving a complaint is set out in Section 202 of the Code of Criminal Procedure and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this Section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 of the Code of Criminal Procedure is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient grounds for him to proceed further. The scope of enquiry under Section 202 of the Code of Criminal Procedure is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint - (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out, and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have".
The proceeding Case No. C-1288/2008 before the learned J.M., 9th Court, Alipore lodged by the Opposite Party No. 2 shows that a letter to Hon'ble Chief Minister of W.B., the then was, addressed by Mustaq Hossain, another unsigned written matter and initial conversation of Item 'A' were appended. The Opposite Party 24 No. 2 therein contended that those documents were defamatory in nature and those per se are defamatory and has lowered the estimation, prestige and position of the Opposite Party No. 2 being an IPS Officer holding the post of DIG, Police, Home Guard, W.B. It transpires that the address of the petitioners have been shown beyond the territorial jurisdiction within which the learned J.M., 9th Court, Alipore exercised his powers. No inquiry in terms of Section 202 of the Code of Criminal Procedure was conducted by the learned Magistrate prior to issuance of process against the petitioners under Section 204 of the Code of Criminal Procedure. By the Code of Criminal Procedure (Amendment) Act, 2005 an insertion has been made in Section 202 of the Code of Criminal Procedure whereby and whereunder an enquiry under Section 202 of the Code of Criminal Procedure has been made mandatory in respect of the accused persons residing at a place beyond the area in which the learned Magistrate expressed his jurisdiction. The amendment took place with effect from 23.4.2006. Due to non-fulfillment of this criteria the instant proceeding is liable to be quashed. The petitioner further put reliance on the judgment of the Hon'ble Supreme Court in the case of National Bank of Oman (supra).
In order to make out an offence of defamation, as made punishable under Section 500 IPC, it is essential to show existence of mens rea on the part of the accused persons. In the instant case, the Opposite Party No. 2 has also made the petitioner No. 1 company an accused in the instant case. It needs no saying that no mens rea can be ascribed to a juristic personality, which has no 25 mind of its own. Moreover, in respect of the private accused person it also cannot be alleged that there existed mens rea on the part of the said petitioner as the action of the petitioner No. 2 in writing letter of complaint to the Hon'ble Chief Minister, W.B. or the Chief Secretary or the O.C., Park Street P.S. and Kolkata Leather Complex P.S. The action on the part of the said petitioner No. 2 in exercise of his natural right to take such necessary action is for protection of his own interest and/or rights. Such action cannot be construed to be attended with malice and as such, cannot be construed to have been made with intent to defame the Opposite Party No. 2. In the absence of mens rea on the part of the petitioners, the continuance of the impugned proceeding would be clearly an abuse of the process of court.
In order to justify a charge under Section 500 IPC it is required that the allegations satisfy requirement of Section 499 IPC as also the explanations appended thereto. It is thus required to be shown by an aggrieved person that the imputation which has harmed his reputation, directly or indirectly lowered his moral and intellectual character in the estimation of others. In the event, the moral or intellectual character of the aggrieved person is not lowered in the estimation of other persons, making of the imputation cannot per se lead to commission of offence of defamation. In the instant case, neither the petition nor the statement of the Opposite Party No. 2, recorded on solemn affirmation before the learned Magistrate, allege that the reputation and/or moral or intellectual character of the Opposite Party No. 2 was lowered in the estimation of any other 26 person and the Opposite Party No. 2 had also failed to adduce any person, as witness on his behalf, in support of the fact that his moral or intellectual character has been lowered in the eyes of the said person subsequent to publication of the alleged defamatory letters. It is thus apparent that the Opposite Party No. 2 has failed to make out a case within the parameters as provided under Section 499 IPC and as such the charge of defamation as alleged against the petitioner is without any merit.
It appears that in the Code of Criminal Procedure (Amendment) Act, 2005, an insertion has been made in Section 202 where an enquiry under Section 202 has been mandatory. In case the accused persons stay beyond the area in which the learned Magistrate may exercise his jurisdiction. It was contended by the Opposite Party No. 2 that the distance between the jurisdiction of the court and the place of abode is around 5 kms. This argument has no basis because admittedly the accused persons reside outside the jurisdiction of the court. So, the compliance of the provisions under Section 202 of the Code of Criminal Procedure is a sine qua non. Whether the learned Magistrate was satisfied after reading line by line or so is not the answer. Further, it appears that the decision of National Bank of Oman (supra) appears to have overruled the decision given by the Hon'ble Single Bench in Rameswar Jute Mills Ltd. (supra) although in the case of National Bank of Oman (supra) the Hon'ble Supreme Court remitted back for passing fresh order regarding compliance of Section 202 of the Code of Criminal Procedure.
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Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of- course. The order of the learned Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The learned Magistrate also has to examine the nature of the allegations made in the complaint and the evidence both oral and documentary in support thereof and determine as to whether the same would be sufficient for the complainant to succeed in bringing home the charge of the accused. The learned Magistrate also has to carefully scrutinise the evidence brought on record and then examine if any offence had been committed by any of the accuseds. In the instant case, the allegations made by the Opposite Party do not make out any contravention of the provisions as alleged and as such the learned Magistrate by holding that a prima facie case has been made out against the petitioners regarding commission of the offence punishable under Section 500 IPC has shown non-application of mind to the facts as disclosed in the complaint.
Next aspect of the matter is that the Opposite Party No. 2 appears to have filed an application on 12.11.10 before the learned Chief Metropolitan Magistrate, Calcutta wherein he also filed similar type of cases as was in the 9th Court of learned Judicial Magistrate at Alipore. The relevant portion of the petition of complaint filed before the learned Magistrate runs as follows: "to save his time as well as precious time of the learned court as well as to ease his financial burden which the complainant has upon himself due to 28 pendency of many cases and suits, the complainant does not wish to proceed with the complaint case and wants to withdraw the present case". The Opposite Party No. 2 in argument did not categorically say what for still he has not taken any steps for dismissal of this case or what is the fate of the petition filed in the 9th Court of learned Magistrate at Alipore.
It was contended by the Opposite Party No. 2 that the protection, if any, in terms of exercise of Section 499 IPC becomes available to an accused, if at all, only during trial of the case and not before that in any revision the petition under Section 482 of the Code of Criminal Procedure as the question of fact and matters are involved in view of the decisions reported in Jeffrey's case (supra).
It was argued by the Opposite Party No. 2 that the present DIG, Police, Ex-Commissioner of Police will depose in his favour before the learned Magistrate, Alipore. He also claimed to have received several calls from his colleagues but this fact was neither stated by him in the petition of complaint nor while he was examined on solemn affirmation. The Opposite Party No. 2 capitalises the decision of Iridium India Telecom Ltd. (supra).
Correct it is that regarding quashing of criminal proceedings guidelines were there but respectfully, I am of the view that nowhere therein or any other decisions of the Hon'ble Apex Court (at least to my knowledge) it has been propounded that quashing of criminal proceeding are strictly prohibited. Had it been so, there would not have any existence of quashing of cases made by the Hon'ble Apex Court. It is correct that in rare cases, the High Court can quash the 29 proceedings and only when on the face value it appears that there is no commission of offence at all or the complaint is barred by any statute. The Hon'ble Supreme Court does not seem to have laid down any embargo on the High Courts where it appears that the petition of complaint does not make out a case or fulfills the ingredient of offence. Therefore, the decision reported in AIR 1992 Supreme Court 2296 (supra) appears to be distinguishable in the instant case.
Similarly, the findings in the case of Jeffrey (supra), do not appear to have been fully applicable in this case.
It was contended by the learned counsel for the petitioner herein that such documents have been annexed in support of the pleadings made by the petitioner in application filed in the civil court. The question arises whether pleadings made in civil proceedings can fall within the parameters of the offence of defamation. Further, it is to be considered as to whether the annexed document to an application filed before the court of law can be said to be a publication. In this regard, the learned counsel for the petitioners referred to a decision reported in 1993 CrLJ 1899 (Bom.) (supra) wherein the Hon'ble Supreme Court held that "one needs to realize that litigants and counsels are of necessity required to be clothed with a certain degree of license in relation to the conduct of a judicial proceeding where it may be legitimately necessary to make allegations or counter allegations. As long as the record indicates that there was valid justification for this, there would be a total absence of the ingredient of malice and in that 30 event, there can be no question of alleging defamation. To my mind, this is really the crux of the matter and the learned Trial Magistrate has completely overlooked this fact. He ought to have taken note of the fact that the statement in the two paragraphs are not to be viewed at in a vacuum, in isolation, or dehors the background of the case and the transactions in which the parties were involved in but from the angle that a legal proceeding was being defended and it was necessary to set out with some degree of correctness the defence which the company had". This decision fits to a T here in this case.
Defamation is a species of which mens rea is the genesis. The complaint of all cases cannot be equated with defamation. The complaint may not have any mens rea but defamation must have it. Any sort of allegation with a touch of imputation against any person per se cannot be categorised as "defamation". Had it not been so, there cannot be any birth of complaint against anybody. Every complaint is more or less having a touch of imputation. There is a marked difference between 'defamation per se' and 'implied defamation', which is prima facie not actionable. The former manifests only defamation while the latter is an allegation mixed with imputation. The allegation necessarily includes imputation to some extent while the vice versa is not correct.
Every citizen has a right to freedom of speech subject to restriction as covered under Section 19(1)(a) of the Constitution of India. Ventilation of grievances to superior controlling authority against any Officer in respect of an interest inversely suffered by a 31 person does not fall within the ambit of Section 499 IPC to warrant punishment under Section 500 IPC.
The materials on record shows the Opposite Party No. 2 was found guilty by Vigilance authority although the Charge Officer i.e. the Opposite Party No. 2 carried thereafter the matter to Central Administrative Tribunal (CAT). If the Opposite Party No. 2 loses the battle in CAT, then who will compensate for the mental trauma or pressure coupled with agony of the petitioners due to carriage and continuation of Case No. C-1284/2008? The hollowness of the answer looms large. The liberty of the petitioners will be seriously affected in that event.
On the other hand, if the Opposite Party No. 2 succeeds in CAT, he will get opportunity to prosecute the petitioners, according to law. Therefore, the lodging of complaint by the Opposite Party No. 2 is premature, to some extent, so to speak.
However, to get remedy, if any, a complaint is lodged against any person alongwith touch of imputation there arises no malice or mens rea to attract defamation.
This being the position, I find that the continuance of proceedings of Case No. C-1286/2008 pending before the 9th Court of learned Judicial Magistrate, Alipore will be a sheer abuse of process of administration of justice.
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Hence, all the four revisions stand hereby allowed and accordingly, the proceedings of C-1286/2008 and others stand quashed.
Urgent Photostat certified copies, if applied for, be supplied according to rules.
(Toufique Uddin, J.)