Calcutta High Court
Smt. Manju Mohanka And Ors. vs Smt. Renuka Banerjee And Ors. on 15 March, 1996
Equivalent citations: (1996)2CALLT166(HC)
JUDGMENT Asish Baran Mukherjee, J.
1. The Revisional Application arise out of an order dated 16.7.93 passed by the learned Judicial Magistrate, 3rd Court, Alipore In complaint Case No. C-1345 of 1987 under Sections 500 and 500/120B I.P.C.
2. The case of the petitioners in short is that petitioner No. 1 is a tenant under the husband of O.P. No. 1 in respect of a portion of premises No. 390/2, Block-'G', New Alipore. She used to pay rent regularly but the husband of O.P. No. 1 refused to accept the same from the month of November, 1985. Thereafter, she started to deposit the rent with the Rent Controller. O.P. No. 1 and her husband began creating disturbances in order to forcefully evict the petitioners No. 1 from the said premises. Petitioner No. 1 in order to protect her interest had to start a proceeding under Section 144 Cr.P.C. being M.P. Case No. 1325 of 1985. She also filed a Civil Suit being T.S. No. 522 of 1995. She got orders in her favour in both the proceedings, though the same are pending. She also filed the another Title Suit being T.S. No. 78 of 1986 against the O.P. No. 1 and her husband for declaration for her tenancy. That Suit is also pending. As O.P. No. 1 filed a Criminal Case No, C-290 of 1986 which was later sent to the Police Station and the G.R. Case arose. The O.P. No. 1 also filed a Criminal Case under Section 94 Cr.P.C. against the petitioners being M.P. Case No. 223 of 1996. The landlord also filed another Title Suit being 412 of 1987 for permanent injunction and an order of status quo was passed in that suit. In view of the search warrant issued in M.P. Case No. 223 of 1986 Police seized certain article from petitioners premises. However, the seized articles were later given to her on execution of a bond. The petitioner also had to start a proceeding for violation of order of the Civil Court against the O.P.. Thereafter, O.P.No. 1 filed an application being Complaint Case No. 1345 of 1987 under Section 500 I.P.C. against the petitioners and O.P. No. 2, which is pending. It has been alleged that in the proceeding under Section 144 Cr.P.C. false and frivolous allegations were made which wounded O.P. No. 1 causing mental pain and agony and humiliation in the estimation of others. Petitioner No. 1 entered appearance in the Case No. 1345 of 1987 and filed an application under Section 205 Cr.P.C. and the said application was allowed but subsequently as because the petitioner was not physically present on a particular day, compelling processes were issued against her. Direction was given the petitioner to remain present physically. The order of the Judicial Magistrate directing her personal appearance has been criticised. It is also the petitioners case that the allegation contained in the application under Section 144 Cr.P.C. are not at all defamatory and there is no prima facie case of conspiracy also. Accordingly the petitioner have prayed for setting aside the relevant order dated 16.7.93 as also for quashing the Complaint Case No. 1345 of 1987.
3. The O.P. No. 1 in course of her affidavit in opposition have denied material allegations contained in the revlsional application. She has asserted that defamatory allegations were contained in the proceeding under Section 144 Cr.P.C. and as such she have to filed a case for defamation being 1345 of 1987. The impugned order of the Judicial Magistrate has been supported as correct since the petitioner did not appear instead of direction to that effect. Petitioner No. 2 also in course of affidavit in reply challenged the revisional application as not maintainable.
4. The first argument advanced on behalf of the petitioners is that the proceeding under Section 144 Cr.P.C. was started by the constituted Attorney of the petitioner and not the petitioner herself. It is submitted that in the circumstances the petitioner cannot be held liable for any observation or averment made in the said application. It is also submitted that the averment of the said petition under Section 144 Cr.P.C. is not at all defamatory in as much as the said petition when taken as a whole is nothing more than general allegations containing some acts and also some apprehensions on the part of the said petitioner. It is also argued that there was no absence of good faith and as such simply because some allegations have been made in furtherance of protecting his interest, the same cannot amount to defamation. It has also been alleged that the learned. Magistrate inspite of earlier, allowing the application under Section 205 Cr.P.C. by order dated 16.7.93 directed the present petitioner No. 1 to appear in the Court and decided to issue warrant of arrest in the event of her failure to attend the Court. It is submitted that her physical presence was not at all essential for the purpose of examination of the accused under Section 251 of Cr.P.C. when her earlier representation petition was allowed. It has been argued on the strength of a number of decisions that in order to assess whether a particular passage or a line is defamatory, the whole document need be considered. It has also been argued that vague and general imputation is not sufficient for defamation. It has also been argued that intention to defame and the knowledge that such imputation will infact defame, are most essential elements to constitute defamation. Reference has been made to the 8th and 9th exception contained in Section 499 I.P.C. In support of the contention that accusation preferred in good faith does not amount to defamation. It has also been asserted that imputation made in good faith by person for protecting his interest does not amount to defamation.
5. On the other hand, it has been argued on behalf of the O.P.s that when complaint and the initial deposition disclosed a prima Jade case, the inherent power under Section 482 Cr.P.C. should not be invoked. It has also been argued on the strength of reported decisions that the inherent power should be exercised sparingly by the revisional Court which shall not resort to parallel enquiry but only to see if the materials disclosed a prima facie case. It has also been argued that no meticulous scrutiny is to be made at the revisional stage but only probability, reliability and genuineness need be scene.
6. I have given my careful consideration to the submissions to both the sides. I have also scrutinised xerox copy of the petition under Section 144 Cr.P.C. which appears to have been made by the constituent Attorney and not by the O.P. No. 1. On the scrutiny of the xerox copy of the order sheet of Case No. C-1345 of 1987, it appears that the complaint was filed on 15.10.87 and after lapse of about three years namely, on 18.7.90, the complainant could produced all her witnesses when summons were issued. I have carefully peruse the initial deposition given by the O.P. No. 1. She has alleged that her prestige has been lowered due the allegation made against her to the effect that she committed tresspass with outsiders to kidnap a baby. The evidence given by witness Anil Das, simply stated that he heard from the O.P. No. 1 that one Mahanti that is O.P. No. 2 filed a case against her since then the witness seldom met the O.P. No. 1. The other witness namely, shri Prithish Das, categorically denied that the O.P. No. 1 is a dangerous lady or creates any trouble in the premises or tried to remove any children, he is also aware that O.P. No. 1 is a nobel lady but he late said that after hearing the allegation against her, he had to change his impression about the O.P. No. 1. The remaining witnesses are just formal witnesses.
7. After careful consideration, it appears to be that there are no prima facie material for starting a case under Section 500 I.P.C. Firstly, the proceeding under Section 144 Cr.P.C. was started by the constituted Attorney and not by the petitioner herself. Secondly, the said petition does not contained any defamatory statement but statements were made In good faith and there is nothing to show lack of bonafide. Besides a substantial examination of the two apparently independent witnesses reveal that the allegations contained in the proceeding under Section 144 Cr.P.C. did not cause any humiliation to the O.P. No. 1 or lowered her in the estimation of general public. As such there is absolutely no reason for starting of the Complaint Case under Section 500 I.P.C. So far as, the order of the learned Judicial Magistrate directing presence of the petitioner No. 1 in the said complaint instead of an allowing representation petition also. It may be stated that there is nothing improper to direct personal appearance if the Court requires the presence of an accused insplte of earlier allowing application under Section 205 Cr.P.C. but the said order requiring such presence must reveal the reason for such direction. In the present case, in a mechanical manner, direction was given without mentioning anything as to why the personal presence was found to be essential. In the circumstance, the said order also cannot stand. In the result, the revisional application stands allowed and the complaint Case No. C-1345 of 1987 is quashed.