Punjab-Haryana High Court
Mukesh Kumar And Others vs State Of Punjab And Another on 1 October, 2008
Author: Ranjit Singh
Bench: Ranjit Singh
CRIMINAL MISC. M NO.11103 OF 2006 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: OCTOBER 01, 2008
Mukesh Kumar and others
.....Petitioners
VERSUS
State of Punjab and another
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. Shiv Kumar, Advocate,
for the petitioners.
Mr. Attar Singh Brar, DAG, Punjab,
for respondent No.1.
Mr. P. S. Jammu, Advocate,
for respondent No.2.
****
RANJIT SINGH, J. (ORAL)
A dispute between the parties concerning a house has led to filing of this complaint, alleging defamation against the petitioners. Petitioner No.2, Jaswant Singh, purchased a land CRIMINAL MISC. M NO.11103 OF 2006 :{ 2 }:
measuring 6 Marlas from one Nasib Singh and Sukhdev Singh. He thereafter constructed a house over said land in area of about 4 marlas, leaving open space of 2 marlas. As per the allegation, respondent No.2, with an intention to grab this land, filed a suit through one Kewal Kishan against petitioner No.2 in the Civil Court at Dasuya. It is alleged that on 8.4.2004, respondent No.2 alongwith Kewal Kishan etc. came to the house, when Ayodhya Devi, wife of petitioner No.2, alone was present. They entered the house of petitioner No.2 and while enquiring about petitioner No.2 and his son, raised Lalkara and attacked Ayodhya Devi, petitioner No.8. Petitioner No.1 reached the spot and with the help of petitioner No.5 admitted petitioner No.8 (Ayodhya Devi) in Civil Hospital, Hajipur. A DDR in this regard was recorded in Police Station, Hajipur about this occurrence but was not converted into FIR allegedly on account of influence exerted by the respondents herein. The petitioners then filed a criminal complaint, leading to summoning of respondent No.2 alongwith other co-accused. It is alleged that as a counter blast to this complaint, false complaint has now been filed against the petitioners under Section 500 read with Section 120-B IPC. This is on the basis of a statement made by Jaswant Singh, petitioner No.2 before SHO, Hajipur to the following effect:-
"That complainant picked up quarrel at the site of the disputed plot in Abadi along with his party man and when his wife Ayodhya Devi and daughter-in-law Sudha obstructed/objected, they outraged their modesty by tearing their clothes and committed offence u/s 354 IPC."
CRIMINAL MISC. M NO.11103 OF 2006 :{ 3 }:
It is accordingly alleged that this allegation made against respondent No.2 led to lowering of his image and this would reveal offence of defamation. The petitioners have been summoned to face proceedings under Section 500 read with Section 34 IPC vide order dated 20.11.2005. The petitioners have impugned this summoning order on the ground that the allegations made are false and otherwise would also not lead to an offence of defamation as defined in Section 499 IPC, when viewed in the background of exceptions contained in the Section.
Short reply on behalf of respondent No.2 is filed. State has also field reply. In the reply filed by respondent No.2, it is reiterated that offence under Section 500 read with Section 34 IPC is made out against the petitioners as respondent is a man of repute and has been defamed by the allegation made by petitioner No.2 in connivance with the remaining petitioners. Respondent No.2 has also disputed the averments made on behalf of the petitioners that the present complaint and the proceedings can not be continued against them in view of exception 8 provided under Section 499 IPC. In the reply filed by the State, it is conceded that report at the instance of petitioner No.8 was recorded while she was admitted in the hospital by HC Onkar Singh. Since only a non-cognizable offence under Section 323 IPC was made out, the said information was not converted into an FIR. The other averments made in the petition are denied in the reply filed by the State.
I have heard the learned counsel for the parties.
The main submission made by learned counsel for the CRIMINAL MISC. M NO.11103 OF 2006 :{ 4 }:
petitioners is that the impugned order passed by Sub Divisional Judicial Magistrate, Dasuha, can not be sustained as the offence, as created under Section 499 IPC, has to be read in the light of Exception 8 contained under the Section. Section 499 IPC provides that 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 expected, to defame that person. Thus, any action on the basis of spoken words, signs or by visible representations etc. can lead to defamation only in case they are not exempted under the exceptions provided under the Section. Learned counsel for the petitioners accordingly submits that even if it be taken that the words attributed to the petitioners are of defamatory in character or nature, still, it would not lead to an offence or defamation on the ground that the action or conduct as alleged would clearly fall within the 8th Exception. This Exception deals with the situation where accusations are preferred in good faith to authorized person. It provides that:-
"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."
Learned counsel for the petitioners would refer to the alleged words, which were used by petitioner No.2, which, according to respondent No.2, has led to defamation, to ay that these CRIMINAL MISC. M NO.11103 OF 2006 :{ 5 }:
concededly were mentioned before S.H.O. In this regard, he would refer to Para 4 of the complaint, wherein it is averred that in the morning of 8.4.2004, all the accused person, in the company of Village Sarpanch reported to S.H.O., Police Station Hajipur and in the presence of persons mentioned therein, petitioner No.2 had stated the words, which have already been reproduced above. There is no dispute as such that these words allegedly were verbally used by petitioner No.2 before the S.H.O., Police Station, Hajipur. The case set up by respondent No.2 is that he was defamed by the words used in making verbal complaint by the petitioners against him. It is, thus, a conceded position that this complaint is before a person having a lawful authority in regard to subject matter of accusation. Counsel accordingly pleads that this case would clearly be covered by eighth Exception and hence, would not lead to any offence or defamation, for which the petitioners could have been summoned. The petitioners have also relied upon the observations made in the case of Rajendra Kumar Sitaram Pande Vs. Uttam, 1999 (1) RCR (Criminal) 800 in support of his contention. In this case also, the question which came up for consideration before the Hon'ble Supreme Court was whether on the basis of a complaint and a report of Treasury Officer, it could be said that prima-facie case exists for trial or Exception 8 to Section 499 IPC would apply. Noticing the gravamen of the allegations in the said complaint, the Hon'ble Supreme Court observed that the complainant had come to the office in a drunken state and had abused the Treasury Officer, Additional Treasury Officer and the Collector. The Magistrate had, before CRIMINAL MISC. M NO.11103 OF 2006 :{ 6 }:
issuing process, called upon the Treasury Officer to hold an enquiry and submit a report, which he did. In this background, the question that arose for consideration was whether the allegations in the complaint read with the report of Magistrate make out the offence under Section 500 or not. It was noticed that Section 499 IPC defines the offence of defamation and Exception 8 clearly indicates that it is not a defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with regard to subject matter of accusation. Observing that the accused person had made a report to a superior officer of the complainant, alleging that he had abused the Treasury Officer in a drunken state, which was the gravamen of the complaint, the Hon'ble Supreme Court found that the case would be covered by Exception 8 to Section 499 IPC. On this basis, learned counsel for the petitioners would contend that present case is of this nature. Here also, petitioner No.2 or others had allegedly made an oral complaint to S.H.O., who is a competent authority to initiate action. The case, as such, is covered by Exception 8 of Section 499 IPC and take the petitioners out of purview of offence of defamation. Counsel has also sought support from the case of Bashir Ulla Khan Vs. Mohd. Rafi & Anr., 2006 (4) RCR (Criminal) 800. This is a case where report was made against the complainant-applicant, before a police officer. On receipt of the report by the concerned police officer, it was investigated as per the procedure prescribed under Section 154 and upon collecting sufficient evidence, applicant-complainant was charge-sheeted. It is observed that accused person had only acted CRIMINAL MISC. M NO.11103 OF 2006 :{ 7 }:
as an informer and had informed the police regarding cognizable offence. It was accordingly observed that it can not be said that any false averment was made in the complaint or it was with an intention to cause any harm or injury to the reputation of the complainant. Herein, in the present case also, petitioner No.2 has only filed a complaint alleging some criminal offences against respondent No.2 and some others. On the basis thereof, an information was recorded as a DDR by the police, which fact is admitted. To say that this complaint was made with intention to defame respondent No.2, can not be accepted. The petitioners, especially petitioner No.2, even if had filed this complaint before a S.H.O., as alleged, was with the aim to report the matter to a police officer, who had an authority to receive the same and investigate. The said action as such, can not be termed with an aim to defame respondent No.2 to attract the offence of defamation under Section 499 IPC. The Magistrate, while summoning the petitioners, has not taken note of Exception 8 and the settled legal position in this regard.
Learned counsel appearing for respondent No.2 has referred to the case of M.N.Damani Vs. S.K.Sinha and others, AIR 2001 Supreme Court 2037 to urge that question whether imputations were made in good faith should be allowed to be examined on the basis of evidence in the trial and quashing of the complaint, in such circumstances, would not be attracted. In my view, the ratio of law laid down in the case of M.N.Damani (supra) would not be attracted to the facts of the present case. In this case, the allegations made were found to be false and the person making the allegations had CRIMINAL MISC. M NO.11103 OF 2006 :{ 8 }:
been convicted for an offence under Section 138 of the Negotiable Instrument Act where these allegations were made. In this background, it was observed that the appellant-respondent had made false and malicious allegations with an intention to harm or knowing or having reasons to believe that such imputation will harm the reputation. It was in this background that prayer for quashing was declined as what weighed with the Court was conviction recorded by a Court of competent jurisdiction in regard to the allegation made being false. Such a situation does not arise in the present case. The present case apparently is covered by the ratio of law laid down in Rajendra Kumar Sitaram Pande's case (supra) and Bashir Ulla Khan (supra). The words statedly used by petitioner No.2, leading to summoning for defamation apparently would not indicate that these were made with an intention to defame respondent No.2. They were primarily aimed at for setting the police in motion against him and made before an authority, which was competent and lawful to take action in the matter. The present case, as such, is clearly covered by Exception 8 of Section 499 IPC and would exempt the petitioners from offence of defamation, as provided under Section 499 IPC. The continuance of the proceedings against the petitioners, pursuant to the summoning order, as such, would nothing but an abuse of process of the Court. Whether the words used and alleged to be defamatory would be so, may also be a question which ofcourse need not be gone into in view of the finding otherwise recorded that offence is not made out.
Accordingly, the petition is allowed. The complaint, CRIMINAL MISC. M NO.11103 OF 2006 :{ 9 }:
summoning order and subsequent proceedings taken against the petitioners are herby ordered to be quashed.
October 01,2008 ( RANJIT SINGH ) khurmi JUDGE