Bombay High Court
Sukumar Biswas vs State Of Maharashtra And Ors. on 20 July, 1992
Equivalent citations: II(1992)DMC369
JUDGMENT M.B. Ghodeswar, J.
1. The applicant Sukumar has filed this application under Section 482 of the Criminal Procedure Code read with Article 227 of the Constitution of India praying for quashing the order issuing process and criminal proceedings in Criminal Case No. 10 of 1990 and the order passed by the Sessions Judge, Akola dated 6.9.1990 in Criminal Revision No. 183 of 1990.
2. Shortly stated, the facts of the case arc that the applicant was married with one Preeti Biswas (nee) Mondal on 10.5.1984 and they were residing.in Calcutta. That the wife of the applicant deserted the applicant in the year 1989. The applicant filed a suit for divorce on 22.11.1989 and therein he has pleaded in addition to ground of the desertion and cruelty, adultery with the non-applicant No. 2 Mukund Behari. Summons of the suit were issued. The non-applicant No. 2 was serving as Chief Executive Officer, Zilla Parishad, Akola where he received the summons of the case. He has filed Criminal Case No. 10 of 1990 in the Court of Judicial Magistrate First Class, Akola against the applicant under Sections 294, 499 read with 500 of the Indian Penal Code on the ground that the averments made against him in the suit for divorce are defamatory. The summons of the complaint case were received by the applicant.
3. The applicant therefore had moved the Court of Magistrate under Section 309 of the Criminal Procedure Code for stay of the proceedings. The application came to be rejected on 9.7.1990. The applicant therefore preferred Criminal Revision No. 183 of 1990. before the Sessions Court, Akola which was also rejected on 6.9.1990. Thereafter, the applicant filed an application for exemption under Section 205 of the Criminal Procedure Code in the Court of Trial Magistrate, Akola which was also rejected. Hence the applicant has preferred the instant application.
4. Shri Parchure, the learned Advocate for the applicant, has raised the following points :-
(1) The Criminal Court of Akola has no jurisdiction as the publishing of information is at Calcutta and if at all the non-applicant wants to prosecute the applicant, he has to file proceedings before the Competent Court at Calcutta ;
(2) Ninth exception to Section 499 of the Indian Penal Code covers this case.
He has placed reliance on 1966 Cri. LJ. 909, Bhagat Singh Sethi and Others v. Zinda Lal and 1974 Cri. LJ. 1435 {Sukhdeo Vithal Pansare v. Prabhakar Sukhdeo Pansare and Another).
5. Shri N. Phadnis, learned Advocate for the respondent No. 2, has supported the order of the Trial Court.
6. In the case of Bhagat Singh Sethi and Others v. Zinda Lal (1966 Cri.LJ. 909), in para 8 of the judgment on the facts of that case, it is held that the case of the petitioner was covered by exception 9 to Section 499 of the R.P.C. In the case of Sukhdeo Vithal Pansare v. Prabhakar Sukhdeo Pansare and Another. (1974 Cri. L..T. 1435) it is held that Imputation on character of another. Made in good faith and for the protection of one's interest. Exception 9 to Section 499 is applicable.
7. In para 7 of the said judgment, it is held --
"Even if it is said to have been published, the petitioner will be protected by exception 9 to ztion 499, I.P.C. Under the ninth exception, 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 interest of the person making it, or of any other person, or for the public good. Admittedly the imputation was made for the protection of the petitioner and the petitioner's family interest. I have no doubt also that he has done it in good faith because he has taken due care and attention before sending the notice through his lawyer. After all the reply was to the claim made by the complainant. It was sent through a lawyer under instructions. He did not advise his lawyer to publish the notice in a newspaper. He can, therefore, very legitimately be said to have done this thing in good faith. In other words he had done it with due care and attention. In this view also, therefore, the order of conviction is not proper."
8. In view of the legal position, there is much substance in the contentions of Shri Parchure.
9. The application is, therefore, allowed. The impugned orders are quashed and set aside. Similarly, criminal proceedings in Criminal Case No. 10/90 pending before the Trial Magistrate are also quashed and set aside. Rule made absolute in the above terms.