Punjab-Haryana High Court
Pawan Kumar Bansal & Anr vs State Of Punjab And Another on 18 March, 2010
Author: Nirmaljit Kaur
Bench: Nirmaljit Kaur
Crl. Misc. No.M-16411 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No.M-16411 of 2007
Date of Decision: 18.03.2010
Pawan Kumar Bansal & anr.
....Petitioners
Versus
State of Punjab and another ...Respondents
CORAM : Hon'ble Ms. Justice Nirmaljit Kaur
Present:- Mr. Ajay Pal Singh, Advocate
for the petitioners.
Mr. K.S. Pannu, D.A.G., Punjab
for the respondent-State.
Mr. R.P. Kansal, Advocate
for respondent No.2.
*****
1. Whether Reporters of Local Newspapers may be
allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the
Digest ?
**
NIRMALJIT KAUR, J.
This is a petition under Section 482 Cr.P.C for quashing of the complaint bearing No.81 dated 08.11.2006 and the summoning Order dated 30.01.2007 passed by the Sub Divisional Judicial Magistrate, Dhuri, District Sangrur under Section 500/34 IPC.
While seeking the quashment of the complaint and the summoning Order, learned counsel for the petitioners submitted that there is a matrimonial litigation between the daughter of petitioner No.1 and her in-laws.
In the petition under Section 9 of the Hindu Marriage Act, the Additional District Judge, Delhi, vide his Order dated 14.07.2006 had directed the parties to live together. Since the daughter of the petitioner was ready to live with her husband and showed her willingness to go with Crl. Misc. No.M-16411 of 2007 2 her husband, on the Court's direction left with Manish Kumar directly from the Court premises. It is pertinent to mention here that at that relevant time Manish Kumar had accommodation for his residence and he brought the daughter of the petitioner to a one room accommodation in a Kothi bearing No.A-41, Sector 27, Noida (U.P.) which belong to Sh. H.R. Kapur that room was let out to Mr. Saurabh a friend of Manish Kumar. Mr. Saurabh vacated that room temporarily to accommodated Manish Kumar. There also Manish Kumar kept quarreling with the daughter of the petitioner and kept harassing and humiliating her one pretext or the other.
On 21.07.2006, he left the room leaving the daughter of the petitioner in the room by bolting the door outside. She called the petitioner on phone and after hearing her shrieks, Sh. H.R. Kapur, the landlord came and opened the door of the room and at the arrival of the petitioner, she along with the petitioner left the room. The petitioner informed the local police and with the intervention of the police Manish Kumar again gave an undertaking in his own handwriting on 25.07.2006 that he would live with her with love and harmony and took his wife to the house of another friend Mr. Ajay Thukral in Shatabdi Vihar, Sector 52, Noida (UP) where they lived till 30.07.2006. But again started abusing her. Thereafter again Manish Kumar on the evening of 03.08.2006 left her outside the house of her parents at Dwarka and thereafter did not return and petitioner and her daughter tried to contact him but could not. The parents of Manish Kumar as well as Manish Kumar on number of occasions threatened the petitioner as well as his family telephonically. Left with no other alternate the daughter of the petitioner ultimately filed a complaint under Sections 406/498-A IPC mentioning therein all the detail facts and circumstances on the basis of which the FIR bearing No.1010 of 2006 dated 22.11.2006, Police Station Dwarka, was registered.
Meanwhile, the present complaint was filed by the respondent Crl. Misc. No.M-16411 of 2007 3 as a counter blast to the earlier litigation. The complaint and summoning order is challenged on the ground that firstly, a bare perusal of the complaint prima facie shows that the matrimonial dispute between the parties were pending and the present complaint has been filed by the respondent-complainant only to harass and humiliate the petitioners. Moreover, it is a counter blast to the earlier litigation and nothing else. Therefore, the present complaint, as well as, the summoning Order are liable to be quashed.
Secondly, the essential ingredient of the offence is not made out. There is no publication.
Lastly, the petitioner No.2 is only a friend of petitioner No.1 and has been implicated only for the reasons that he tried to persuade both the parties to compromise and to live matrimonial life peacefully.
Learned counsel for the respondent, however, vehemently opposed the present petition by stating that there was specific allegations against the petitioners of threat and that petitioner No.2 is not a family member but a stranger. Thus, the threat at the hands of petitioner No.2 amounts to defamation.
Learned counsel for the parties have been heard.
"Defamation" has been defined in Section 499 of the Indian Penal Code as under :-
"499 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 such imputation will harm the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person."
The above requirements of the Section leave no manner of doubt that intention to cause harm is the very basis of the offence under Crl. Misc. No.M-16411 of 2007 4 Section 499 of the Indian Penal Code and the said accusation should be made in a communication which should have intention to harm the reputation of the person. This is possible only when the imputations are made publically. It is, therefore, necessary to see in the facts of the present case as to whether the intention was to harm the reputation of the complainant or as to whether the said communication, either written or oral, was made publically and in the presence of number of people or not. The relevant allegations in the complaint are as under :-
" That all the accused in furtherance to their common intention to cause wrongful loss to extort money from the complainant and her family members in order to commit extortion are guilty of putting the complainant and her other family members in fear of an accusation of an offence. Pawan Kumar, accused No.1 made a telephone call from a telephone No.0120-2451043 on the landline telephone number of 01675-220880 and threatened the complainant with dire consequences, if the complainant and her other family members failed to act as per wishes of the accused persons. The accused No.1 openly threatened the complainant with the threatening words as under :-
"Kya Chahte Ho App, Abb Nahi Bach Sakte Jail to Apko Bhijwana Hi Parega; Naukri Chali Jayegi Sarak Pe Bhikh Mango Ge Bete Ko Sambhal Kar Rakhna Deta Hong 50 lakh."
These threatening words were said by Pawan Kumar to the complainant on 30.10.2006 between 9.30 p.m. to 9.40 p.m. on landline telephone number existing in the residential house of the complainant bearing No.01675-220880. These threatening words of accused No.1 were also heard by the husband of the complainant on the second telephone set lying in the residential house of the complainant."
Crl. Misc. No.M-16411 of 2007 5On the basis of the same, the preliminary evidence was recorded. Thereafter, the petitioners were summoned under Sections 500/234 of IPC, vide Order dated 30.01.2007 passed by Sub Divisional Judicial Magistrate, Dhuri, by holding as under:-
" It was alleged that accused No.1 and Pratibha instead of joining the matrimonial house started to defame them and at the instance of accused No.2 they made two telephone calls on 03.09.2006 at land line telephone number of the complainant with a threat that she, her husband and her son will be involved in a false dowry case. The matter was reported to the police by way of complaint No.515 dated 12.09.2006 but no action was taken. Thereafter, another telephone call was received by the complainant from accused No.1 with threats on 30.10.2006 between 9.30 to 9.40 p.m. and again matter was reported to the police but no action was taken."
From the perusal of the above, it is evident that the threat has been meted out on the telephone. There is no evidence at all that the same is in the presence of public at large. There is not even an iota of whisper in the complaint that the said threat was in the presence of anyone at all leave alone a number of people. The fact that the husband of complainant heard on the second set of his phone, is not to the knowledge of the petitioners. There is no allegation of any publication. The said allegation, under any circumstances, does not fall under Section 499 of the Indian Penal Code. The words do not contain any defamatory imputation. The said threat is given on the telephone. The same cannot be considered as publication or made in public.
The argument of learned counsel for the respondent that the person who gave threat was an outsider and a stranger and hence the Crl. Misc. No.M-16411 of 2007 6 offence under Section 499 of the Indian Penal Code is made out, cannot be accepted. Although the other petitioners have disputed the fact that petitioner No.2 was a stranger, nevertheless, there is no allegation that he made a telephone call in the presence of public or that imputation, if any, was published.
The Court of Madhya Pradesh, in the case titled as Namita Agnihotri vs. Dr. Rekha Barethia and another 2004(1) R.C.R. (Criminal) 263 held that the absence of publication of the imputation offence under Section 500 of the Indian Penal Code is not made out and also held that the accused who insulted the complainant in an office room where no other person was present, offence under Section 500 of the Indian Penal Code cannot be made out. Para 23 of the said judgment reads as under :-
"23. The gist of the offence of defamation lies in the disseminate of harmful imputation. If the libeler merely communicates the libel to the person defamed, it does not constitute offence punishable under Section 500, Indian Penal Code. Defamation is injury to one's reputation and reputation is what others think of a man and not his opinion about himself. Therefore, publication of the imputation must be to a stranger or strangers. In the absence of publication of the imputation offence under Section 500, Indian Penal Code is not made out. In the present case so far as the first incident dated 27.02.1997 is concerned, there was no publication as admittedly the imputation was made in the staff room of the Zoology department where no person other than the petitioner and respondent No.1 was present."
This Court, in the case of Harcharan Singh v. Hari Singh 2002(1) R.C.R. (Criminal) 393, while holding that no offence under Sections 499 and 500 is made out, observed in para 9 as under :
"9. The above requirements of the section Crl. Misc. No.M-16411 of 2007 7 leave no manner of doubt that intention to cause harm is the very foundation of the offence under Section 499 I.P.C. The manifestation of the intention has to be gathered from the accusation made in the communication to an authority as to whether they intend to lower the petitioner in the estimation of others. Such a situation arises when the imputations are made public. Otherwise the maker of the imputations without publication would not be liable under this Section. In this case the sole purpose of making complaints by the accused to the authorities referred to above was to bring to their notice the factual position which they had gathered in good faith about the petitioner. It was not made public and rather, it was left to the authorities concerned to take into account the allegations made for appropriate action in the matter. Therefore, from the evidence and documents on record, it cannot be said that accused intended to publish the contents of the letter to other persons as sought to be projected by the complainant himself and the other witnesses examined. Thus, no fault can be found with the orders of the Courts below in dismissing the complaint."
The High Court of Kerala, in the case of C.H. Kader v. Munnilakath Valappil Fousia reported as 1991(1) R.C.R. (Criminal) 138 held that the communication from the complainant's counsel cannot, in any way, considered as publication and while holding that no ingredients of Section 499 of IPC were made out, observed in para 7 as under :-
"7. As stated earlier petitioners never published the so-called libelous material. Since there was no publication by the petitioners, ingredients of Section 499 are not brought out against the petitioners. As the complaint does not bring out the ingredients of the offence, the proceedings before the court below have to be Crl. Misc. No.M-16411 of 2007 8 quashed. Otherwise, it will result in abuse of process of law."
In the present case, the daughter of petitioner No.1 was being tortured and harassed by the family of her in-laws. The criminal litigation was pending between the parties. There is a mention of various telephone calls between the parties. Petitioner no.2 is stated to be a friend of the family who tried to bring about the compromise, therefore, he cannot be said to be a stranger. There is no motive for the stranger to call upon the complainant. Even otherwise, there is no allegation that the said person abused in the present of anyone else or that the same was in public. The presence of the husband of the complainant on the other telephone set is not in the knowledge of the petitioners. There is no allegation of any publication. As per the complaint, there is no allegation that there was any intention of defamation. In fact, what has been said is that the intention was "to cause wrongful loss to extort money from the complainant and her family members in order to commit extortion are guilty of putting the complainant and her other family members in fear of an accusation of an offence."
Thus, the said action of the petitioners or accusation made herein, definitely do not amount to an offence under Sections 499 and 500 of the IPC. The said allegations do not satisfy the ingredients of Sections 499 and 500 of the IPC.
Accordingly, the present petition is allowed and the complaint bearing No.81 dated 08.11.2006, as well as, the summoning order dated 30.01.2007 passed by the Sub Divisional Judicial Magistrate, Dhuri, District Sangrur and order framing charge, are quashed.
(NIRMALJIT KAUR) Judge 18.03.2010 gurpreet