Gauhati High Court
Shamurailatpam Gopal Sharms vs Public Prosecutor (Districts), ... on 1 December, 1999
JUDGMENT
1. The legality as well as continuation of a Criminal proceeding pending before the learned sessions Judge (Criminal) (Complaint) case No. 1 of 1984 is the subject matter of this proceeding. The facts giving rise to the present proceeding are summed up below :
2. A Criminal complaint for defamation in writing was made by the Public Prosecutor with the previous sanction of the State Government before the learned sessions Judge Manipur alleging that the accused/petitioner, the Editor Printer and publisher of the Manipur Local Daily 'POKNAPHAM' committed offence of defamation against a Minister of the State in respect of his conduct and discharge of his public function. It was alleged that the said Daily "Poknapham" which had a large Circulation within the State of Manipur and is read by a large section of the public, published a news item in its issue on 23rd April, 1984 under the caption "Kanana Hijillibano Mantrina Luhongba Tour Allowance Louba Bor Kanya Animak Mashak Epha Phajei-Gadha Binod (who says Minister enjoys tour allowance in attending marriage ceremony both bride and bride-groom are good looking-Gadha Binod) in the front page. The news item along with the English translation was appended with the complaint pointing out to the said news item it was alleged that the accused made false imputation against Sri Radha Binod Keijam Minister for Medical Health and Family Welfare, Govt. of Manipur using pseudo name as "Gadha Binod" by stating inter alia that the Minister conducted himself in a cheap and funny way in the marriage ceremony of Gaya, daughter of Shri and Smti Bhatia with Chanchal. It was further alleged in the news item that the Minister acted as Mandop Mapu (chief of the ceremony) in the marriage and addressed the gatherings there by saying that the ceremony not only provided him food and eatable over and above his tour allowance and which also provided him an opportunity for him to campaign vote. It also stated that the Minister out of his discretionary fund placed a sum of Rs. 1000 in cash along with one thousand dhoties, one thousand phanek and one thousand lunguns (sacred thread) and the people in the gathering scrambled to pick up the same. It was also alleged that the said ironical imputation, using the pseudo name as "Gadha Binod", Minister of Family Welfare was directed against and referable to Shri Radha Binod Koijam, Minister for Medical, Health and Family Welfare Govt. of Manipur and none else. It was also alleged that the accused published the same false and unfounded impugations with mala fide intent to harm the reputation of Shri Radha Binod Koijam, Minister for Medical, Health and Family Welfare, Manipur. It was alleged that directly or indirectly lowered the reputation and moral character of the Minister, Radha Binod in the estimation of others, thereby constituting the offences punishable Under Section 500/501 of the I.P.C.
3. The learned Sessions Judge took cognizance of the complaint and registered a case under Section 500/501 of the IPC against the accused. The accused appeared and released on bail.
4. The accused presented an application before the learned Sessions Judge for his discharge under Section 245(2) read with Section 237(1) of the Code of Criminal Procedure, 1973 and questioned the legality and validity of the continuance of the said proceeding. Before the learned Sessions Judge objection was taken on behalf of the accused/petitioner for adopting the summons procedure instead of a warrant proceeding. The learned Sessions Judge conceded that instead of passing any order for examination of prosecution witness inadvertently he passed the order for explanation. The learned Sessions Judge agreed to adopt warrant procedure. In paragraph 2 of the application of the accused for discharge it was contended that the allegation contained in the complaint petition did not disclose the offence of defamation, but learned counsel for the accused petitioner did not press the same at the time of argument as was recorded by the learned Judge. In the said statement the learned Judge observed that the learned counsel rightly did not do so. The learned Sr. counsel however disputed the aforesaid statements contained in the Judgment, which shall be dealt with by me at the appropriate stage.
5. The learned counsel for the accused mainly emphasised on the ground that the imputation contained in the news item was not in respect of a conduct of the Minister in charge of his Public function. The learned Judge addressed his mind to the contention raised on behalf of the accused, considered and turned down the plea and concluded with the following observation :
".. Now, as discussed above, the complainant has made an allegation in the complaint petition that the accused made a false imputation against Shri Radha Binod Koijam, the Hon'ble Minister that he has drawn travelling allowances for the journey performed by him for attending marriage ceremony and used his discretionary fund amounting to Rs. 1000 in matters relating to private marriage. Further, on my anxious and careful scrutiny of the said news item I am satisfied that the publications contain such imputations. Hence, I have been perused irresistibly to hold that the publications contain the defamatory statements concerning the behaviours of Hon'ble Minister which can be reasonably associated with the discharge relating to conduct of the Hon'ble Minister in the performance of public functions. And hence, I do not find force in the above contention of the learned counsel.."
6. Hence this petition.
7. Mr. A Nilomoni Singh, the learned Sr. counsel appearing for the petitioner in his usual persuasive manner addressed the Court on various aspect of the matter. The learned Sr. Counsel first drawn my attention to the complaint petition and, submitted that no offence against the accused / petitioner is revealed and on that count alone the impugned proceeding is liable to be quashed. Referring to the news item the learned Sr. counsel stated that the said news item was in fact in the form of satire which was published in the homour column without any malice. The author in the humour column only portrayed a parody of events. The learned sr. counsel also submitted that the allegation contained in the complaint as a whole did not disclose any offence of defamation as indicated in Section 499 of the I.P.C. The said issue was in fact dealt with by the learned Sessions Judge which was already mentioned there. The learned counsel had drawn his attention to the statement recorded by the learned Sessions Judge in his order dated 7.12.84. The sr. counsel sought to wriggle out the situation by stating that no such concession was made. The said observation of the learned counsel is simply not acceptable at this distance of time.
8. The order was passed by the learned Sessions Judge on 7.12.84 and if there was any error crept in the statements recorded by the learned Judge it was the solemn duty of the learned counsel who argued the matter to invite the attention of the learned Judge to that apart of the statement's. It is unfair to Judge who is no longer alive to refute the imputation. Even a whisper is not made in the application submitted before this court in May, 1985 questioning about wrong recording of the statement. Such a contention questioning erroneous statement recording by the Judge therefore cannot be entertained. In this context the following observation of the Supreme Court in State of Maharashtra v. Ramdas Srinivas Nayak reported in AIR 1982 SC 249 1249 are aptly recalled :
"We are afraid that we can not launch into an inquiry as to what transpired in the High court. It is simply not done. Public policy bars us Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judge cannot be dragged into the arena "Judgments cannot be treated as mere counters in the game of litigation". (Per Lord Atkinson in Somasundaran v. Subramanian, AIR 1926 PC 136). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judge to be contradicted by statements at the Bar or by affidavit and other evidence. It the Judges say in their judgment that something was done, said or admitted before them, that has to be the last work on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the Judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that has been made in error (per Lord Buckmaster in Madhusudan v. Chandrabati, AIR 1917 PC 30.). That is the only way to have the record corrected. If not such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the Judgment.
9. I have already indicated about the complaint petition vis-a-vis the news item. The essence of an offence of defamation is publication of imputation with knowledge that which will harm the reputation of a person defamed and imputation in the form of an alternative or expressed irnocally may amount to defamation. An imputation is said to harm a person's reputation where the said imputation directly or indirectly covers the moral or intellectual character of that person or lower the credit of that person in the estimation of others or lower the credit of that person the act amounts to defamation. Looking into the allegation and its entity it cane not be said that the complaint Petition on its face value did not disclose of the offence of defamation for a trial.
10. The learned Sr. counsel Mr. Nilomoni Singh, drawn my attention to a catena of decision of the Supreme court and this Court as to the power and competence of the High Court under Section 482 of the Cr. P. C.
11. The power reposed on the High Court under Section 482 of the Cr. P.C. comprise a provision conferring a distinct and independent power on the High Court to pass order Ex debito Justice in matters where grave substantial injustice have been done or in those cases where process of the Court has been abused. The power is intended to prevent the abuse of the process of the court and to secure ends of justice. This is an extra ordinary power which is to be used sparingly for the ends of justice. It is not like an ordinary revisional power exercised by a Higher Court. The High Court in exercising the discretion under Section 482 Cr. P.C. is not to embark upon an enquiry as to whether the allegation in the complaint are likely to be succeeded in the trial which is the function of the Trial Court on evaluation of the evidence that will come before it. When continuance of a prosecution is challenged at the beginning of a trial the Court can look into allegation to find out as to whether allegation contained in the complaint taken on its face value has made out a prima facie case for trial or whether the proceeding is barred by any statute. Similarly an inherent power can be exercised to quash a proceeding where the complaint is frivolous, vicious, oppressive. It the allegation mentioned in the complaint do not disclose the offence of which cognizance is taken up by the trial court it will be open for the High Court to intervene and quash the proceeding in the aid of power under Section 482 Cr. P.C. It may however, be mentioned that at this stage, the High Court is not required to enter into a painstaking and detailed analysis of the case to ascertain as to whether the case would end any conviction or not. The complaint to be read as a whole. The Supreme court while analysing and interpreting the power conferred on the High Court under Section 482 of the Cr. P.C. in State of Haryana v. Bhajan Lal wherein the Court has enumerated by way of illustration the classes of cases where the High Court in exercising the power quashed the complaint of FIR and also indicated the following note of caution reported in (1992) supp (1) SCC 335 at para 103 :
".. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an Enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
12. Mr. A Nilamani, the learned sr. counsel appearing on behalf of the accused Petitioner emphatically argued questioning the act of taking cognizance of the offence by the Court of Sessions in aid of sub-Section (2) of Section 199 of the Cr.P.C. Referring to the statement contained in the complaint as well as the offending publication submitted that the alleged offence for defamation which is alleged to have been committed against a person is not in respect of this conduct in discharge of his public function. The learned sr. counsel has submitted that attending to a marriage function is not relatable to discharge of public function. According to the learned sr. counsel allegation contained in the complaint petition as such, did not refer to any Minister to the Government of Manipur or to the Minister Radhabiond Koijam by using pseudonym or pseudo name of the Minister in particulars, much less to his behaviours or conduct in the discharge of his public functions and duties and therefore the continuance of the proceeding before the Court of Sessions amounted to abuse of the process of the Court. The learned sr. counsel in support of his contention referred to a decision of the Supreme Court in Monohar Nath Coal v. State of Jammu & Kashmir reported in 1983 SC 610. The case referred to by the learned sr. counsel is relatable to the interpretation of Section 197(1) of the Cr. P.C. where their Lordships had to deal with specifically as to the expression "acting or purporting to act to the discharge of its official duty". In the aforesaid case, the core question before the Supreme Court was a to whether the sanction under Section. 197 of the Cr. P.C. was the pre-condition in a Criminal Proceeding initiated against the public servant for an offence of cheating punishable under Section 420 of the LPC. The accused in the above case questioned the maintainability of the proceeding for absence of sanction under Section 197 which was turned down by the Trial Court as well as by the High Court. Rejecting the plea of the accused than in the absence of sanction under section 197 of the Cr. P.C. the Supreme Court observed as follows :
".. Where a public servant commits the offence of cheating or abets another so the cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offence has no necessary connection between it an the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offence.."
13. Section 199(2) of the Cr. P.C. on the other hand is relatable tot he allegation to have been committed against a person who, at the time of such commission, is the president of India, the Vice President of India, the Governor of a State, The Administrator of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public function. Conduct refers to persons behaviours deportment, mode of action, any positive or negative act (Black's Law Dictionary). Any imputation concerning any person intending harm or knowing or having reason to believe that such imputation will harm the reputation of such person relatable to the conduct of such person in the discharge of his public function. A defamatory statement involving personal behaviours or mode of act of those persons specified in sub-section (2) which may be justifiably and reasonably connected or related to discharge of his public function which may not be strictly associated with such acts cannot be disassociated from the discharge of the public function of such person. A public functionary when goes to private function does not cease to be a public functionary. The constitution envisages of a council of Ministers with the Chief Minister at the head to aid and advise the Governor. Under Article 164 of the constitution the Chief Minister is appointed by the Governor and the other Ministers are also appointed by the Governor on the advise of the Chief Minister. The Ministers holds public office and discharge public duty, where the imputation is relatable to behaviours or conduct in the discharge of public function prima facie it will come within the regour of Sub-Section (2) of Section 199 of the CR.P.C. If the allegation however, is relatable to personal life of a public functionary like that of a private citizen which in no way revolve around on his public function. In this case the Section will not be operative and cases are to be decided on the factual matrix of each case.
14. I have given my anxious consideration on the matter and considering all the aspects of the matter and upon hearing the parties I do not find any justifiable ground of differ with the reasoning given by the learned trial court. Persuaded by Mr. A Nilomani Singh, the learned sr. counsel, I also scrutionsed the complaint petition, and on evaluation of the factual matrix those were placed before me, it can not be said that the allegation contained in the complaint was relatable to the Minister as a private citizen and not connected with any discharge of his public function. In the circumstances, it cannot be held that requirement of Section 199(2) of the Cr. P.C. was not satisfied in the present case. The complaint in question cannot therefore be quashed. In the result the Petition stands dismissed. The stay order granted earlier stands vacated.