Calcutta High Court (Appellete Side)
M/S. Pataka Industries (Pvt.) Ltd vs The State Of West Bengal & Ors on 7 October, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
1
07/10/2013
CRR No. 3277 of 2008
(CRAN No. 2526 of 2010)
with
CRR No. 3278 of 2008
(CRAN No. 93 of 2010)
(CRAN No. 2527 of 2010)
with
CRR No. 3279 of 2008
(CRAN No. 94 of 2010)
(CRAN No. 2528 of 2010)
with
CRR No. 3280 of 2008
with
CRR No. 3283 of 2008
M/s. Pataka Industries (Pvt.) Ltd.
vs.
The State of West Bengal & Ors.
Mr. Sekhar Basu, Sr. Adv.
Mr. Milon Mukherjee, Sr. Adv.
Mr. P. C. Motilal, Adv.
Mr. Debashish Roy, Adv.
Mr. Sandipan Ganguly, Adv.
Mr. R. P. Matilal, Adv.
... For the petitioner
Mr. (Dr.) Akbar Ali Khan
... For the O.P. (in-person)
As the learned Advocates for both the parties submitted that
the subject-matter of CRR No. 3277 of 2008; CRR No. 3278 of 2008;
CRR No. 3279 of 2008, CRR No. 3280 of 2008 and CRR No. 3283 of
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2008 are same, so, by a common judgment, all the matters are
taken up for disposal.
The substance of one of such cases is as follows:
An application under Section 482 of the Code of Criminal
Procedure, 1973 was lodged for quashing of the proceedings of case
No. C-1520/2008 under Section 500 IPC pending before the Court
of learned JM, 9th Court, Alipore and the orders dated 28.3.08 and
21.5.08 and all subsequent orders passed therein.
The short background of the case is that the petitioner is
anexisting company viz. Pataka Industries Pvt. Ltd. within the
meaning of Companies Act, 1956 having its office at Trimurthi
Apartment, 4th Floor, 97, Park Street, Kolkata-700016 and is being
represented by Sri Ganesh Chandra Sen, duly constituted Attorney
and authorized signatory of the petitioner company who has been
duly authorized by the petitioner company to file this instant
application.
The Case No. C-1520/2008 was registered on the basis of a
complaint filed by the Opposite Party No. 2 before the court of
learned Chief Judicial Magistrate, South 24 Parganas, Alipore
therein alleging commission of offence by the petitioner and others
punishable under Section 500 IPC.
The allegations are as follows:
a) The Opposite Party No. 2 is a member of the Elite Indian
Police Service and is a highly qualified person.
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b) It is alleged that the Opposite Party No. 2 was entrusted
with money by persons of his native place at Ghazipur for
purchase of land in Hatisala Mouza for which he appointed
a land broker Abdul Rahim Gazi and gave him cash to the
tune of Rs. 1,02,50,000/- in different instalments between
February, 2004 to September, 2004. It is alleged that
Abdul Rahim Gazi in connivance with the Chairman-cum-
Managing Director of the petitioner company and his
brothers, fraudulently and deceitfully utilized the said sum
of money for purchasing 76 bighas of land in the name of
three private limited companies.
c) The Opposite Party No. 2 has filed a Complaint case
against the petitioner company and 7 others in September,
2007 in the court of the learned Chief Judicial Magistrate,
Alipore which is pending.
d) The Opposite Party No. 2 and his wife also filed on
30.8.2007 a civil suit (Title Suit No. 394 of 2007) in the
court of the learned 7th Civil Judge (Sr. Div.), Alipore
praying for a declaration that the Opposite Party No. 2 and
his wife are the owners of the land fraudulently purchased
by the petitioner company and others in the name of three
private limited companies.
e) By order dated 31.8.2007 the learned Civil Court directed
maintenance of status quo in respect of the possession of
the suit property.
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f) That in retaliation, the petitioner company has published a
false, baseless, mischievous, malicious, malafide,
scandalous and defamatory advertisement against the
Opposite Party No. 2 in the English news-paper "The Times
of India" dated 5.3.08 wherein it was claimed that the
Opposite Party No. 2 has used the name and address of
the petitioner company for applying for Trade mark
registration of "Future Freedom Foundation".
g) The Opposite Party No. 2 further stated that previously he
had good relation with Mustaque Hussain, Chairman-cum-
Managing Director of the petitioner company and as per
mutual discussion and consultation, the Opposite Party No.
2 applied in April, 2004 to the Trade Mark Authority,
Kolkata for registration of Trade Mark for proposed public
charitable trust named "Future Freedom Foundation" by
giving the name and address of the petitioner company.
h) It is alleged that the said publication was made by the
petitioner with full knowledge and intention to cause harm,
damage and injury to the moral, intellectual, general and
special reputation of the Opposite Party No. 2 with intent to
lower down his image, name and fame in the eyes of the
Government, superiors, colleagues, subordinates, friends,
relatives and the public at large.
The learned Chief Judicial Magistrate, South 24 Parganas,
Alipore on 28.3.2008 took cognizance of the offence and then
transferred the case to the court of learned Judicial Magistrate, 9th
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Court, Alipore, South 24 Parganas. The learned Judicial Magistrate
examined the Opposite Party No. 2 on solemn and affirmation on
21.5.2008. After finding prima facie case made out against the
accused persons he was pleased by his order dated 21.5.08 to issue
summons in the name of the accused persons.
For proper appreciation of the instant case the petitioners
mentioned certain following facts:
a) The petitioner company is the flagship company of the
"Pataka Group of Companies" which consists of the
petitioner company M/s. Nishka Properties Pvt. Ltd. and
M/s. Subarnarekha Properties Pvt. Ltd.
b) That with the intention to increase business of Pataka
Group of Companies, it was intended that "Pataka Food
Park" and a model residential school would be set up by
Pataka Group of Companies in or around Kolkata
Airport and in course of such search for land, the
company came in contact with Abdur Rahim Gazi, who
claimed himself to be a reputed land broker of the
locality. Abdur Rahim Gazi further represented that he
had helped to procure land for M/s. Robin Gold Trading
Company Ltd. and its representatives, being the
Opposite Party No. 2 herein.
c) That in such circumstances, Mustak Hossain, Managing
Director-cum-Chairman of the petitioner company,
contacted the Opposite Party No. 2, who was known to
him, and disclosed his desire for purchasing 150 bighas
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of land at Hatisala Mouza, Rajarhat for and on behalf of
Pataka Group of Companies.
d) That the Opposite Party No. 2 upon coming to know about
interest of Pataka Group of Companies for purchasing
land at Hatisala Mouza, offered his help to act as an
agent as also render all services to monitor/supervise
purchase of land as also undertake all monetary
transactions including registration of the land in favour
of the buyer. As the Opposite Party No. 2 was well
known to Mustak Hossain, Managing Director-cum-
Chairman of the petitioner company it was decided to
accept the offer of the Opposite Party No. 2 to act as an
agent in dealings with the companies of said Mustak
Hossain.
e) That subsequently from time to time, a sum of Rs.
1,60,00,000/-, by way of cash, was paid to the
Opposite Party No. 2 towards purchase of the said 150
bighas of land at Hatisala Mouza at Rajarhat.
f) That subsequently 76 bighas of land were purchased at
Hatisala Mouza, Rajarhat between February 2004 to
August 2004 by 110 registered Sale Deeds executed by
the respective vendors in favour of the group companies
of the Pataka Group of Companies.
g) The Opposite Party No. 2 started insisting upon the
Mustak Hossain to form a partnership firm with the
Opposite Party No. 2 in land-trading business and
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asked Mr. Mustak Hossain not to retain the land,
already bought in the name of the respective companies
of the Pataka Group, but to dispose of the same at a
higher price and to invest the proceeds in land-trading
business with the Opposite Party No. 2. As Mr. Mustak
Hossain did not accept the said proposal, the Opposite
Party No. 2 thereafter deliberately withheld 72 original
IGRs, out of 110 IGRs, in respect of the plots of land
bought on behalf of the respective companies.
h) That in the month of September 2004, Abdur Rahim Gazi,
for the first time, disclosed to Mustak Hossain that
though he has received a sum of Rs. 1,02,50,000/- in
27 instalments from the Opposite Party No. 2, towards
consideration value of the land purchased, he has not
received any amount towards brokerage/remuneration
despite repeated demands.
i) That in such circumstances, Mr. Mustak Hossain
demanded accounts from the Opposite Party No. 2 in
respect of the money entrusted to him but the Opposite
Party No. 2 avoided providing such accounts.
j) That subsequently the Opposite Party No. 2 ultimately
was compelled to hand over the balance original IGRs at
the intervention of senior officers of the Government of
W.B. but he refused to render accounts or return the
balance amount of money lying with him.
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k) That finding no alternative Mr. Mustak Hossain wrote a
letter dated 3.3.2005 to the Hon'ble Chief Minister who
was in charge of the Home Ministry at that relevant
point of time, intimating him about the illegal activities of
the Opposite Party No. 2/complainant.
l) That on receipt of the complaint dated 3.3.2005 one Mr.
Ajoy Prasad, Director General of Police, West Bengal
Police Directorate was pleased to forward the said
complaint to Sri Rama Krishnan, Additional Director
General, Administration for enquiry.
m) That a confidential enquiry was held wherein the Abdur
Rahim Gazi and Mustak Hossain, amongst others,
made statements and finally Sri S. Ramakrishnan was
pleased to arrive at a finding that the allegations
against the complainant/Opposite Party No. 2 therein
was substantiated and he recommended that a criminal
case be initiated against the Opposite Party No. 2 for
criminal breach of trust.
n) That subsequently the Government Authorities had
decided to refer the entire matter to the Vigilance
Commissioner, West Bengal for further enquiry and an
enquiry proceeding was duly held by the Vigilance
Commissioner, West Bengal and 23 witnesses were
examined and voluminous documents were made
exhibits. In course of such enquiry, the Opposite Party
No. 2 gave out threats to Directors, shareholders and
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employees of the Pataka Group of Companies with dire
consequences in the event they continued with the said
demand against the Opposite Party No. 2.
o) That by a letter dated 23.11.2006, the Joint Secretary,
Government of West Bengal, Personnel and
Administrative Reforms Department, Vigilance Cell had
forwarded to the Opposite Party No. 2 ture copy of the
Final Enquiry Report dated 22.10.2006 of Sri Hari
Prasad Chattopadhyay (retired member of WBHJS)
Inquiring Authority, Vigilance Commission, Government
of West Bengal and asked for
explanation/representation from the Opposite Party No.
2. In the said inquiry proceeding, 23 prosecution
witnesses were examined and the Opposite Party No. 2
was examined as a solitary defence witness. In the
said Inquiry Report it was held that "it is proved that Sri
Akbar Ali Khan, IPS, while functioning as DIG, Home
Guard, in course of his active involvement in the real
estate business received Rs. 1.6 crores from Mustak
Hossain, Chairman, M/s. Pataka Industries Pvt. Ltd., on
different dates between February 2004 to August 2004
in order to purchase land at Rajarhat through Abdur
Rahim Gazi a land broker and paid Rs. 1,02,50,000/-
part by part to the said Gazi and an amount of Rs.
57,50,000/- was misappropriated and such conduct
shows lack of integrity which is improper and
10
unbecoming of a public servant as such violative of Rule
3(1) of All Indian Services (Conduct) Rules, 1968. The
Charged Officer is found guilty of Articles of Charge".
Against the aforesaid show cause letter dated
23.11.2006 the Opposite Party No. 2 has moved before
the Central Administrative Tribunal, Kolkata and the
matter is pending.
p) That the Opposite Party No. 2 realising that his misdeeds
have come out in the open and his service prospects
have come under a cloud, filed a suit bearing T. S. No.
994/2007 before the learned VIIth Court, Civil Judge
(Sr. Div.), Alipore inter alia for a declaration and
injunction against Mustak Hossain, Abdur Rahim Gazi
and the other group companies of Pataka Group of
Companies, therein praying for declaration that the
Opposite Party No. 2 and his wife are true owners of the
land purchased by the said three companies through
the broker, Abdur Rahim Gazi and for other reliefs.
q) That is it pertinent to mention herein that on or about
19.5.2006, Ganesh Chandra Sen, authorized
representative of Pataka Industries Pvt. Ltd. had filed
an application under Section 156(3) of the Code of
Criminal Procedure before the learned Chief
Metropolitan Magistrate, Kolkata, being case No. C-
4252/2006, therein disclosing commission of offences
by the Opposite Party No. 2 punishable under Sections
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406/409/418/420 IPC. The learned Chief Metropolitan
Magistrate, Kolkata was thereafter pleased to direct the
Officer-in-Charge of Park Street P.S. to treat the said
complaint as FIR and cause investigation but the O.C.,
Park Street P.S. submitted a report stating that as the
accused was an IPS Officer, the offence complained of
should be investigated by an Assistant Commissioner of
Police. Later the learned Magistrate dropped the
proceedings.
r) That subsequently an envelope containing a letter was
received at the office of the petitioner company. On
opening the envelope, it was detected that the letter
contained therein has been issued by the Registrar of
Trade Marks, Kolkata under reference No. TLA/1792 dt.
27.10.2007. The said letter was addressed to "Future
Freedom Foundation, Kolkata-700 016" with reference
to Application No. 1279657 in class 41. On a perusal of
the said notice, it appeared that hearing was fixed on
29.11.2007 at 11.30 a.m. in respect of the above
application.
s) The officers of the petitioner company were extremely
surprised upon receiving such communication from the
office of the Trade Marks Registry, Kolkata as the
petitioner company had neither applied for registration
of any Trade Mark by the name "Future Freedom
Foundation" nor had provided any authorization to any
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other person to use its name and address for applying
for Trade Mark Registration of such name. In such
circumstances, enquiries were conducted and it
transpired that the Opposite Party No. 2 by utilizing his
official seal, had applied for registration of Trade Mark
in the name of "Future Freedom Foundation" on
20.4.2004 before the Trade Marks Registry, Kolkata
and the name and address of the petitioner company
has been shown to be the address of "Future Freedom
Foundation". The petitioner company had applied for a
certified copy of the original application made by the
Opposite Party No. 2 but has been informed that
certified copy of the same cannot be provided. In such
circumstances, the petitioner company has applied for
the certified copy of the additional representation in
respect of Application No. 1279657 in Class 41 for the
Trade Mark "Freedom" in the name of "Future Freedom
Foundation" and has been provided a certified copy of
the same wherefrom it is clearly reflected that the
Opposite Party No. 2 has shown the name and address
of the petitioner company as the office/place of business
of "Future Freedom Foundation" and had also signed
the same.
t) That the petitioner company was extremely perturbed at
such misuse of its name and address by the Opposite
Party No. 2 and in order to protect its name and
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reputation and also to inform the various public
authorities regarding the wrongful utilization of its name
and address, the petitioner company, through its
Manager, wrote to the O.C., Park Street P.S., therein
bringing to the notice of the said police officer the illegal
and false application made by the Opposite Party No. 2
by declaring the name and address of the petitioner
company as the name of the address of the proprietor of
the said Trade Mark and furthermore that such use of
name and address of the petitioner company was
without the authority, consent and knowledge of the
petitioner company and it was further clarified that the
petitioner company was not in any way connected with
"Future Freedom Foundation" and was not to be held
responsible for the activities of the said concern. A
request was also made for investigation into the said
matter.
u) That subsequently another communication was received
from the office of the Trade Mark Registry, Govt. of
India, Kolkata at the office of the petitioner company
whereby "Future Freedom Foundation" was informed
that their Application No. 1279657 in Clause 41 was
treated as abandoned for want of prosecution at the
hearing held on 19.11.2007 and as such, the aforesaid
application was treated as "abandoned".
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v) That the petitioner company, in such circumstances, in
order to protect its interest and reputation and
furthermore to prevent further misuse of its name and
address in connection with the running of any
organization under the name of "Future Freedom
Foundation" published a notice in five daily news-
papers, viz. 'The Statesman', 'Aajkaal', 'Ananda Bazar
Patrika', 'Sambad Protidin' and 'The Times of India' on
5.3.2008, therein informing that the petitioner company
was in no way connected with the said concern "Future
Freedom Foundation" as the petitioner company was
not at all responsible for the activities of the said
concern/body of persons.
w) The Opposite Party No. 2 has thereafter filed this
impugned proceeding therein alleging commission of
offence of defamation by the petitioner through the
publication of the said notice/advertisement in the
newspaper.
The further contention of the petitioners is that on perusal of
the petition of complaint, it appears that the complaint falls within
the jurisdiction of Park Street P.S. and those are beyond all the
territorial jurisdiction of the learned Chief Judicial Magistrate,
Alipore.
In order to justify the charge under Section 500 IPC it is
required that the allegations satisfy the requirement of Section 499
15
IPC as also the explanations appended thereto. It is required to be
shown by an aggrieved person who has harmed his reputation
directly or indirectly and lowered his moral and intellectual
character in the estimation of others.
The petitioner company further submits that no permission
was sought for by the Opposite Party No. 2 while using the name
and address of the petitioner company as the place of work of
"Future Freedom Foundation". The publication of notice in the
newspaper cannot but be said to be an action on the part of the
petitioner company in exercise of its natural right to take such
necessary action for protection of its own interest/rights. The
Opposite Party No. 2 used the name and address of the petitioner
company. So, the publication of notice is no defamation. Therefore,
charges under Section 500 IPC are not maintainable. The said
action of the petitioner falls within protection under ninth exception
to Section 499 IPC.
The allegation in the complaint case, made by the Opposite
Party No. 2 does not make out any contravention of provisions as
alleged under Section 500 IPC. Hence the revision.
On the other hand, the case and argument of the Opposite
Party No. 2 is as follows:
The advertisement dated 5.3.2008 published in the
newspaper The Times of India is highly defamatory against the
complainant and completely fulfills all the ingredients of the offence
of defamation as defined in Section 499 IPC. All the questions of
fact and circumstances of good or bad faith are required to be
16
examined on the basis of evidence at the trial by the trial court and
not before that by this Hon'ble court in a revision petition under 482
Code of Criminal Procedure.
The learned Magistrate has fully complied with the
provisions of Section 202 Code of Criminal Procedure. The scope of
the inquiry under Section 202 is extremely limited - only to the
ascertainment of the truth or falsehood of the allegations made in
the complaint (i) on the materials placed by the complainant before
the court; (ii) for the limited purpose of finding out whether a prima
facie case for the issue of process has been made out and (iii) for
deciding the question purely from the point of view of the
complainant without at all adverting to any defence that the accused
may have. In proceedings under Section 202, the accused has got
absolutely no locus standi and is not entitled to be heard on the
question whether the process should be issued against him or not.
It is the contention of the Opposite Party No. 2/complainant
that the learned Magistrate himself inquired into the defamatory
advertisement, which is in black and white and as clearly
defamatory as daylight, by himself perusing line by line and page by
page the complaint and the defamatory advertisement and asking
questions and seeking information and clarification from the
complainant and only on being fully satisfied that a prima facie case
has been made out by the complainant against the
petitioner/accused under Section 500 IPC, the learned Magistrate
was pleased to issue the summons against the accused. It is
pertinent to mention that Section 202(1) does not prescribe any
17
specific method or mode of inquiry like X or Y or any particular
duration of inquiry like an hour or a day. The section also specifies
the purpose for which the said inquiry is required to be conducted
by the learned Magistrate and the said purpose is to decide whether
or not there is sufficient ground for proceeding. The complaint
states and submits that since the defamatory advertisement is in
writing and is clearly defamatory as a bare perusal of the said
advertisement shows and establishes, the learned Magistrate was
fully satisfied that there were sufficient grounds for proceeding in
the matter and hence issued the summon against the accused.
Therefore, since the learned Magistrate conducted the inquiry as per
Section 202(1) Code of Criminal Procedure there was no need for
him to postpone issue of process on the alleged ground that the
accused were residing at a place beyond the area in which the
learned Magistrate exercised his jurisdiction.
The learned Magistrate examined the complainant on S/A
and asked questions and clarifications from him and perused the
complaint and the published defamatory advertisement and also
perused the published defamatory advertisement in original in the
newspaper produced by the complainant. The learned Magistrate
did inquire from the complainant during S/A by asking questions
and only on being fully satisfied after such inquiry he issued the
summons.
The Opposite Party No. 2 further states that the decision of
the Hon'ble Apex Court in the case of National Bank of Oman
reported in (2013) 2 SCC 488 as cited by the petitioner is not
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applicable in the present case as the learned Magistrate did conduct
the prescribed inquiry into the complaint as mandated in Section
202(1) Code of Criminal Procedure by himself. The Hon'ble court
observed, "The duty of a Magistrate receiving a complaint is set out
in Section 202 Code of Criminal Procedure and there is an
obligation on the Magistrate to find out if there is any matter which
calls for investigation by a criminal court. The scope of enquiry
under this Section is restricted only to find out the truth or
otherwise of the allegations made in the complaint in order to
determine whether process has to be issued or not. Investigation
under Section 202 Code of Criminal Procedure is different from the
investigation contemplated in Section 156 as it is only for holding
the Magistrate to decide whether or not there is sufficient grounds
for him to proceed further. The scope of enquiry under Section 202
of the Code of Criminal Procedure is limited to the ascertainment of
truth or falsehood of the allegations made in the complaint (i) on the
materials placed by the complainant before the court (ii) for the
limited purpose of finding out whether a prima facie case for issue of
process has been made out; and (iii) for deciding the question purely
from the point of view of the complainant without at all adverting to
any defence that the accused may have."
Section 202 Code of Criminal Procedure was amended by the
Code of Criminal Procedure (Amendment Act, 2005) and the
following words were inserted:
"and shall, in a case where the accused is residing in a place
beyond the area in which he exercises jurisdiction"
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The notes on clauses for the above-noted amendment read as
follows:
"false complaints are filed against persons residing at far off
places simply to harass them. In order to see that the innocent
persons are not harassed by unscrupulous persons, this clause
seeks to amend subsection (1) of Section 202 to make it obligatory
upon the Magistrate that before summoning the accused residing
beyond his jurisdiction he shall enquire into the case himself or
direct investigation to be made by a police officer or by such other
person as he thinks fit, for finding out whether or not there was
sufficient ground for proceeding against the accused."
In fact, the complainant had his witnesses ready and
available for deposition on the day he was examined on S.A. by the
learned Magistrate but the learned Magistrate after conducting his
enquiry by reading the complaint and asking questions from the
complainant was so fully satisfied that a prima facie case had been
made out against the accused that he did not feel it necessary to
examine any other witness and issued the summons. The
complainant further states that the distance between the place
residence of the accused and the learned Magistrate issuing the
summons in the above noted National Bank of Oman case was 500
kms. in different states whereas the distance between the learned
Alipore Court issuing summons in the instant case and the
residence of the accused, all within Calcutta, is within 5 kms. and
the place is not far off and no prejudice is caused to the accused by
the issuance of summons in the instant case.
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It was submitted that making of an imputation which is per
se defamatory leads to the commission of offence of defamation. He
referred to the decision of the Supreme Court in the case of John
Thomas vs. Dr. K. Jagadeesan reported in AIR 1992 Supreme Court
2206 wherein the Apex Court held, "Shri Siva Subramanium,
learned Sr. counsel for the appellant, contended that the
imputations contained in the publication complained of are not per
se defamatory. After reading the imputations we have no doubt that
they are prima facie libelous. The only effect of an imputation being
per se defamatory is that it would relieve the complainant of the
burden to establish that the publication of such imputations has
lowered him in the estimation of the right thinking members of the
public. However, even if imputation is not per se defamatory, that
by itself would not go to the advantage of the publisher, for the
complaining person can establish on evidence that the publication
has in fact amounted to defamation even in spite of the apparent
deficiency. So, the appellant cannot contend, at this stage that he is
entitled to discharge on the ground that the imputations in the
extracted publication were not per se defamatory."
Learned counsel for the Opposite Party No. 2 relied upon the
case of Dipankar Datta vs. The State of W.B. (supra) wherein the
Hon'ble court held, "It is thus clear that if the imputations are per se
defamatory there is no need to produce witnesses before issuance of
summons to show that by such imputations the reputation of the
complainant has been lowered down in the estimation of the public."
21
He referred to the case of Shamsher Singh vs. H.S.Malik 22
(1982) DLT 1 which lays down " I do find any substance in this
contention for the simple reason that the imputations against the
respondent being per se defamatory Explanation 4 of Section 499
will not be attracted. In the words of Straight, J., Queen - Empress vs. McCarthy, ILR 9 ALL 420(426)(1) :
"........ Explanation 4 of Section 499, they are answered by the observation that the Explanation does not apply where the words used and framing the basis of a charge are per se defamatory. When an expression, used verbally or in writing, is doubtful as to its significance, and some evidence is necessary to decide what the effect of that expression will be, and whether it is calculated to harm a particular person's reputation, it is possible that the principle enunciated in Explanation 4 of Section 499 might and would with propriety be applied. But in this case, there is no question as to the significance or meaning of the words written. They are distinctly defamatory, within the meaning of Section 499 and as such, whether they were written in haste or in anger, the respondent is clearly responsible, and unless she can show that her case falls within any of the Exceptions to the Section, it was and is impossible for her to resist a verdict of guilty."
The Opposite Party No. 2 also relied upon Iridium India Telecom Ltd. vs. Motorola Incorporated & Ors. wherein it was held that the companies are corporate houses can no longer claim immunity from criminal prosecution on the ground that they are incapable of passing the necessary mens rea for commission of 22 offence. He further submitted that the case of Standard Chartered Bank vs. Directorate of Enforcement, similar view is taken.
The Opposite Party No. 2 referred to a decision of Jeffrey J. Diermeir & Anr. vs. State of W.B. & Anr. wherein it was held as follows:
"It is trite that where to the charge of defamation under Section 500 IPC the accused invokes the aid of Tenth Exception to Section 499 IPC, "good faith" and "public good" have both to be established by him. The mere plea that the accused believed that what he had stated was in "good faith" is not sufficient to accept his defence and he must justify the same by adducing evidence. However, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. It is well settled that the degree and the character of proof which an accused is expected to furnish in support of his plea cannot be equated with a degree of proof expected from the prosecution in a criminal trial. The moment the accused succeeds in proving a preponderance of probability, onus lying on him in this behalf stands discharged. Therefore, it is neither feasible nor possible to lay down a rigid test for deciding whether an accused person acted in "good faith" and for "public good" under the said Exception. The question has to be considered on the facts and circumstances of each case, having regard to the nature of imputation made; the circumstances on which it came to be made and the status of the person against whom imputation is allegedly made. These and a host of other considerations would be relevant and required to be considered for 23 deciding appellants' plea of "good faith" and "public interest".
Unfortunately, all these are questions of fact and matters for evidence.
In the instant case, the stage for recording of evidence had not reached and, therefore, in the absence of any evidence on record, we find it difficult to return a finding whether or not the appellants have satisfied the requirements of "good faith" and "public good" so as to fall within the ambit of the Tenth Exception to Section 499 IPC. Similarly, it will neither be possible nor appropriate for this court to comment on the allegations levelled by respondent No. 2 and record a final opinion whether these allegations do constitute defamation. Reading the complaint as a whole, we find it difficult to hold that a case for quashing of the complaint under Section 482 of the Code of Criminal Procedure has been made out. At this juncture, we say more lest it may cause prejudice to either of the parties.
For the foregoing reasons, we are of the opinion that the High Court was right in refusing to quash the complaint under Section 500 IPC. The appeal, being devoid of any merit, is dismissed accordingly. Nothing said by the High Court or by us hereinabove shall be construed as expression of final opinion on the merits of the complaint. For that the learned Magistrate has fully applied his mind in holding that a prima facie case has been made out against the petitioner regarding the commission of offence punishable under Section 500 IPC."
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It was contended by the Opposite Party No. 2 that the petitioner has also annexed a copy of the perverse inquiry report in the disciplinary proceeding against the complainant. The Opposite Party No. 2/complainant states that this perverse inquiry report has no relevance for deciding this petition under Section 482 of the Code of Criminal Procedure. it is neither the order or judgment of a superior court (the Hon'ble Supreme Court of India) nor the order or judgment of another High Court or for that matter even of any lower judicial court like a District or Sub-divisional court. It is not conducted under Code of Criminal Procedure or Code of Civil Procedure and has no binding or persuasive evidence or value at all before this Hon'ble court or before the trial court. It is not even final because the complainant has challenged this inquiry report before the Hon'ble Central Administrative Tribunal, Calcutta Bench in Original Application No. 146/2013 where the matter is presently being heard. This perverse inquiry report will not reach any finality till it is finally settled by the Hon'ble Supreme Court if at all it is required to be taken there by of the parties/contestants in OA No. 146/2013. Therefore, it is totally irrelevant for deciding this revision petition.
It is a well settled principle that the High Court shall exercise its jurisdiction under Section 482 of the Code of Criminal Procedure for quashing of any criminal proceeding in rarest of rare cases, sparingly and with circumspection.
In support of their case learned counsel for the petitioner cited before me the following decisions:
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a) Shatrughna Prasad Sinha vs. Rajbhau Surajmal Rathi 1997 Cri LJ 212
b) Dipankar Bagchi vs. The State of West Bengal (2010) 1 C Cr LR (Cal) 403
c) D.M.Seth vs. Ganesh Narayan R. Poddar, Chairman, Shree Sankar Mills Ltd. & Ors. 1993 Cri LJ 1899 (Bom.)
d) National Bank of Oman vs. Barakara Abdul Aziz (2013) 2 SCC 488.
On the other side, the Opposite Party No. 2 cited the following decisions:
a) Iridium India Telecom Ltd. vs. Motorola Incorporated & Ors. CRA No. 688 of 2005 (decided on 20.10.10)
b) Rameshwara Jute Mills Ltd. vs. Sushil Kumar Daga (2009) Cri LJ 2727
c) John Thomas vs. Dr. K. Jagadeesan AIR 1992 Supreme Court 2206
d) Jeffrey J. Diermeier & Anr. vs. State of W.B. & Anr. CRA No. 1079 of 2010
e) Shamsher Singh vs. H.S.Malik 22 (1982) DLT 1, and
f) M. N. Damani vs. S. K. Sinha & Ors.
CRA No. 596 of 2001 (decided on 2.5.01)
g) Padal Venkata Rama Reddy vs. Kovvuri Satyanaraya Reddy (2011) 12 SCC 437 I have heard them with rapt attention.
26For better appreciation of the matter, Sections 200 and 202 of the Code of Criminal Procedure and Sections 499 and 500 IPC are reproduced hereunder:
S. 200 CrPC - Examination of complainant - A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate.
Provided that when the complaint is made in writing, the Magistrate nee not examine the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192;
Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not reexamine them.
S. 202 CrPC - Postponement of issue of process - (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, and shall in a case where the accused is residing at a place beyond the area in which he exercises 27 his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made -
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if thinks fit, take evidence of witness on oath;
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section 1 is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.
S. 499 IPC - Defamation - Whoever, by words either spoken or intended to be read, or by signs or by visible 28 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.
Explanation 1 - It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2 - It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3 - An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4 - No imputation is said to harm a person's reputation, unless that imputation directly or indirectly in the estimation of others lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state or in a state generally considered as disgraceful.
First Exception - Imputation of truth which public good requires to be made or published - It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
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Second Exception - Public conduct of public servants - It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
Third Exception - Conduct of any person touching any public question - It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question and respecting his character, so far as his character appears in that conduct, and no further.
Fourth Exception - Publication of reports of proceedings of Courts - It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.
Fifth Exception - Merits of case decided in Court of conduct of witnesses - It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.
Sixth Exception - Merits of public performance - It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further. 30
Seventh Exception - Censure passed in good faith by person having lawful authority over another - It is not defamation in a person having over another any authority either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
Eighth Exception - Accusation preferred in good faith to authorized person - 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.
Ninth Exception - Imputation made in good faith by person for protection of his or other's interests - 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 interests of the person making it, or of any other person, or for the public good.
Tenth Exception - Caution intended for good of person to whom conveyed or for public good - It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.
S. 500 IPC - Punishment for defamation - Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years or with fine or with both. 31
It is also pertinent to mention that the Hon'ble Apex Court did not quash the proceeding in the case of National Bank of Oman (supra) but only remitted back the matter to the learned Magistrate to pass fresh orders in compliance with Section 202 of the Code of Criminal Procedure uninfluenced by prima facie conclusions of High Court. It further said that inquiry under Section 202 is limited only to ascertain truth or falsehood of allegations made in the complaint. The Hon'ble Court observed as under:
"The duty of a learned Magistrate receiving a complaint is set out in Section 202 of the Code of Criminal Procedure and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this Section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 of the Code of Criminal Procedure is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient grounds for him to proceed further. The scope of enquiry under Section 202 of the Code of Criminal Procedure is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint - (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out, and (iii) for deciding the question purely from the point of view of the 32 complainant without at all adverting to any defence that the accused may have".
The proceeding Case No. C-1520/2008 and others before the learned J.M., 9th Court, Alipore lodged by the Opposite Party No. 2 show that a letter to Hon'ble Chief Minister of W.B., the then was, addressed by Mustaq Hossain, another unsigned written matter and initial conversation of Item were appended. The Opposite Party No. 2 therein contended that those documents were defamatory in nature and those per se are defamatory and has lowered the estimation, prestige and position of the Opposite Party No. 2 being an IPS Officer holding the post of DIG, Police, Home Guard, W.B. In order to make out an offence of defamation, as made punishable under Section 500 IPC, it is essential to show existence of mens rea on the part of the accused persons. In the instant case, the Opposite Party No. 2 has also made the petitioner No. 1 company an accused in the instant case. It needs no saying that no mens rea can be ascribed to a juristic personality, which has no mind of its own. Moreover, in respect of the private accused person it also cannot be alleged that there existed mens rea on the part of the said petitioner as the action of the petitioner in writing letter of complaint to the Hon'ble Chief Minister, W.B. or the Chief Secretary or the O.C., Park Street P.S. and Kolkata Leather Complex P.S. against deeds of the Opposite Party No. 2 is in exercise of his natural right to take such necessary action. It is for protection of his own interest and/or rights. Such action cannot be construed to be attended with malice and as such, cannot be construed to have 33 been made with intent to defame the Opposite Party No. 2. In the absence of mens rea on the part of the petitioners, the continuance of the impugned proceeding would be clearly an abuse of the process of court.
In order to justify a charge under Section 500 IPC it is required that the allegations satisfy requirement of Section 499 IPC as also the explanations appended thereto. It is thus required to be shown by an aggrieved person that the imputation which has harmed his reputation, directly or indirectly lowered his moral and intellectual character in the estimation of others. In the event, the moral or intellectual character of the aggrieved person is not lowered in the estimation of other persons, making of the imputation cannot per se lead to commission of offence of defamation. In the instant case, neither the petition nor the statement of the Opposite Party No. 2, recorded on solemn affirmation before the learned Magistrate, allege that the reputation and/or moral or intellectual character of the Opposite Party No. 2 was lowered in the estimation of any other person. The Opposite Party No. 2 had also failed to adduce any person, as witness on his behalf, in support of the fact that his moral or intellectual character has been lowered in the eyes of the said person subsequent to publication of the alleged defamatory statements. It is thus apparent that the Opposite Party No. 2 has failed to make out a case within the parameters as provided under Section 499 IPC and as such the charge of defamation as alleged against the petitioner is without any merit. The petitioners simply ventilated the alleged activities of the Opposite Party No. 2. The 34 petitioners denied that they gave permission to use their address for "Future Freedom Foundation" attempted to be set up by the Opposite Party No. 2 or the petitioner were ever associated with such concern.
It appears that in the Code of Criminal Procedure (Amendment) Act, 2005, an insertion has been made in Section 202 where an enquiry under Section 202 has been mandatory, in case the accused persons stay beyond the area in which the learned Magistrate may exercise his jurisdiction. It was contended by the Opposite Party No. 2 that the distance between the jurisdiction of the court and the place of abode is around 5 kms. This argument has no basis because admittedly the accused persons reside outside the jurisdiction of the court, irrespective of any consideration of distance. So, the compliance of the provisions under Section 202 of the Code of Criminal Procedure is a sine qua non. Whether the learned Magistrate was satisfied after reading line by line or so is not the answer. Further, it appears that the decision of National Bank of Oman (supra) appears to have overruled the decision given by the Hon'ble Single Bench in Rameswar Jute Mills Ltd. (supra) although in the case of National Bank of Oman (supra) the Hon'ble Supreme Court remitted back for passing fresh order regarding compliance of Section 202 of the Code of Criminal Procedure.
Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of- course. The order of the learned Magistrate summoning the 35 accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The learned Magistrate also has to examine the nature of the allegations made in the complaint and the evidence both oral and documentary in support thereof and determine as to whether the same would be sufficient for the complainant to succeed in bringing home the charge of the accused. The learned Magistrate also has to carefully scrutinise the evidence brought on record and then examine if any offence had been committed by any of the accuseds. In the instant case, the allegations made by the Opposite Party do not make out any contravention of the provisions as alleged and as such the learned Magistrate by holding that a prima facie case has been made out against the petitioners regarding commission of the offence punishable under Section 500 IPC has shown non-application of mind to the facts as disclosed in the complaint.
Next aspect of the matter is that the Opposite Party No. 2 appears to have filed an application on 12.11.10 before the learned Chief Metropolitan Magistrate, Calcutta wherein he also filed similar type of cases as was in the 9th Court of learned Judicial Magistrate at Alipore. The relevant portion of the petition of complaint filed before the learned Magistrate runs as follows: "to save his time as well as precious time of the learned court as well as to ease his financial burden which the complainant has upon himself due to pendency of many cases and suits, the complainant does not wish to proceed with the complaint case and wants to withdraw the present case". The Opposite Party No. 2 in argument did not categorically 36 say what for still he has not taken any steps for dismissal of this case or what is the fate of the petition filed in the 9th Court of learned Magistrate at Alipore.
It was contended by the Opposite Party No. 2 that the protection, if any, in terms of exercise of Section 499 IPC becomes available to an accused, if at all, only during trial of the case and not before that in any revision the petition under Section 482 of the Code of Criminal Procedure as the question of fact and matters are involved in view of the decisions reported in Jeffrey's case (supra).
It was argued by the Opposite Party No. 2 that the present DIG, Police, Ex-Commissioner of Police will depose in his favour before the learned Magistrate, Alipore. He also claimed to have received several calls from his colleagues but this fact was neither stated by him in the petition of complaint nor while he was examined on solemn affirmation. The Opposite Party No. 2 capitalises the decision of Iridium India Telecom Ltd. (supra). Correct it is that regarding quashing of criminal proceedings guidelines were there but respectfully, I am of the view that nowhere therein or any other decisions of the Hon'ble Apex Court (at least to my knowledge) it has been propounded that quashing of criminal proceeding are strictly prohibited. Had it been so, there would not have any existence of quashing of cases made by the Hon'ble Apex Court. It is correct that in rare cases, the High Court can quash the proceedings and only when on the face value it appears that there is no commission of offence at all or the complaint is barred by any statute. The Hon'ble Supreme Court does not seem to have laid down any embargo on the 37 High Courts where it appears that the petition of complaint does not make out a case or fulfills the ingredient of offence. Therefore, the decision reported in AIR 1992 Supreme Court 2296 (supra) appears to be distinguishable in the instant case.
Similarly, the findings in the case of Jeffrey (supra), do not appear to have been fully applicable in this case.
In the decision reported in (2011) 12 SCC 437, no doubt, principles were reiterated for quashing of criminal proceedings but total consideration of that judgment rather helps the petitioner instead.
It was contended by the learned counsel for the petitioner herein that such documents have been annexed in support of the pleadings made by the petitioner in application filed in the civil court. The question arises whether pleadings made in civil proceedings can fall within the parameters of the offence of defamation. Further, it is to be considered as to whether the annexed document to an application filed before the court of law can be said to be a publication. In this regard, the learned counsel for the petitioners referred to a decision reported in 1993 CrLJ 1899 (Bom.) (supra) wherein the Hon'ble Supreme Court held that "one needs to realize that litigants and counsels are of necessity required to be clothed with a certain degree of license in relation to the conduct of a judicial proceeding where it may be legitimately necessary to make allegations or counter allegations. As long as the record indicates that there was valid justification for this, there would be a total absence of the ingredient of malice and in that 38 event, there can be no question of alleging defamation. To my mind, this is really the crux of the matter and the learned Trial Magistrate has completely overlooked this fact. He ought to have taken note of the fact that the statement in the two paragraphs are not to be viewed at in a vacuum, in isolation, or dehors the background of the case and the transactions in which the parties were involved in but from the angle that a legal proceeding was being defended and it was necessary to set out with some degree of correctness the defence which the company had". This decision fits to a T here in this case.
Defamation is a species of which mens rea is the genesis. The complaint of all cases cannot be equated with defamation. The complaint may not have any mens rea but defamation must have it. Any sort of allegation with a touch of imputation against any person per se cannot be categorised as "defamation". Had it not been so, there cannot be any birth of complaint against anybody. Every complaint is more or less having a touch of imputation. There is a marked difference between 'defamation per se' and 'implied defamation', which is prima facie not actionable. The former manifests only defamation while the latter is an allegation mixed with imputation. The allegation necessarily includes imputation to some extent while the vice versa is not correct.
Every citizen has a right to freedom of speech subject to restriction as covered under Section 19(1)(a) of the Constitution of India. Ventilation of grievances to superior controlling authority against any Officer in respect of an interest inversely suffered by a 39 person does not fall within the ambit of Section 499 IPC to warrant punishment under Section 500 IPC.
The materials on record shows the Opposite Party No. 2 was found guilty by Vigilance authority although the Charge Officer i.e. the Opposite Party No. 2 carried thereafter the matter to Central Administrative Tribunal (CAT), which is stated to be pending. If the Opposite Party No. 2 loses the battle in CAT, then who will compensate for the mental trauma or pressure coupled with agony of the petitioners due to carriage and continuation of Case No. C- 1520/2008 and others? The hollowness of the answer looms large. The liberty of the petitioners will be seriously affected in that event.
On the other hand, if the Opposite Party No. 2 succeeds in CAT, he will get opportunity to prosecute the petitioners, according to law. Therefore, the lodging of complaints by the Opposite Party No. 2 is premature, to some extent, so to speak.
However, to get remedy, if any, a complaint is lodged against any person alongwith touch of imputation there arises no malice or mens rea to attract defamation.
This being the position, I find that the continuance of proceedings of Case No. C-1520/2008 and others pending before the 9th Court of learned Judicial Magistrate, Alipore will be a sheer abuse of process of administration of justice.
Hence, all the five revisions viz. CRR No. 3277 of 2008; CRR No. 3278 of 2008; CRR No. 3279 of 2008, CRR No. 3280 of 2008 and CRR No. 3283 of 2008 stand hereby allowed and accordingly, the 40 corresponding proceedings of C-1524/2008 and others stand quashed.
Accordingly, all the CRAN applications are hereby disposed of.
Urgent Photostat certified copies, if applied for, be supplied according to rules.
(Toufique Uddin, J.)