Delhi High Court
P. Sharma vs P.S. Popli And Anr. on 9 November, 2001
Equivalent citations: 94(2001)DLT913, 2002(61)DRJ78
JUDGMENT S.K. Agarwal, J.
1. This petition under Section 482 of the Code of Criminal Procedure (for short, "Cr.P.C.") is directed against the order dated 24.5.95, passed by the court of Metropolitan Magistrate, Delhi, dismissing application of the petitioner for recalling the order of summoning for the offence punishable under Section 500 IPC, in the complaint filed by the respondent.
2. Facts in brief are that on 12.9.1986,respondent filed a complaint under Sections 420/366/338 IPC agaisnt petitioner and others, alleging therein, that his brother was to undergo a minor operation and for that purpose he was looking for some good Nursing Home with adequate facilities. He met the petitioner, who was director of Sharma's Nursing Home; the petitioner told the respondent that his Nursing Home had all modern facilities with air-conditioned rooms. On 7.8.1981 respondent admitted his brother in the said Nursing Home. The representations made by the petitioner, were found to be false, the room was not air-conditioned and medical care was not satisfactory. The respondent reported the matter to concerned authority, but in vain. Thereafter he filed a criminal complaint against the petitioner, which was dismissed on 8.6.1987 by the Magistrate holding that operation was performed on 7.8.1981 and the complaint filed on 12.9.1986 (nearly six years after the operation) was barred by limitation. The respondent preferred a revision petition and the Ld. Addl. Sessions Judge (for short "ASJ") allowed the same on 31.7.1989. The accused persons were ordered to be summoned and put n trial. Against the order passed by ASJ, petitioner came up in revision in this Court, which was also dismissed on 26.3.1990. In May, 1990, petitioner filed a petition fro Special Leave to Appeal (for short "SLP") in the Supreme Court of India agaisnt the order passed by this Court. In the SLP, it was inter alia pleaded by the petitioner, that the complaint filed by the respondent was wholly false, mischievous and intended to black mail him. the Supreme Court allowed the appeal (SLP) and quashed the complaint and order of summoning on 14th March, 1996. Thus the first round of litigation between the parties ended.
3. In May, 1990 the respondent opened another front and filed complaint under Section 500 IPC alleging that the imputation made by the petitioner in the SLP i.e. "complaint of the respondent, was wholly false, mischievous and black mailing tactic" was intended to harm his reputation. Paras 3 to 7 of the Complaint read as under:-
"3. In this special leave petition, the accused has on page 22 of the petition, the following insinuatory words against the complainant; "the complaint of the complainant is wholly false, mischievous and black mailing tactics".
4. In addition in his accompanying application soliciting a direction for stay of proceedings in the lower Court, he has repeated the same insinuations as under in page 2. Photocopy enclosed. "The said complaint is absolutely frivolous and aimed at black mailing the petitioner".
5. That the use of the words "black-mailing", tactics attributed to the complainant indirectly breands the complainant as black mailer which is an insinuation deliberately made for the first time before the Hon'ble Supreme Court of India.
6.As a result of this insinuation the Hon'ble Supreme Court granted a direction for stay of proceedings which are pending in the Metropolitan Magistrate's court, Patiala House, New Delhi.
7. Had there been no such insinuations, the Hon'ble Supreme Court is likely to have acted differently and the matter would not have been under stay which is the disadvantage of the complainant."
4. The petitioner was summoned for the offence punishable under Section 500 IPC in the complaint. He appeared before the trial court and moved an application under Section 245(2) Cr.P.C. for recalling the order of summoning. By the impugned order dated 24.5.1995, application was dismissed. This order is under challenge.
5. Learned counsel for petitioner argued that the averments made in the SLP are to be read as a whole; and that the allegation was made against the "complaint" and not the complainant. The imputations were made i good faith, before the court of law, which had lawful authority to grant relief, and the same were not intended to harm the reputation of the respondent, but only to emphasise the issues raised in the petition. In support of his submissions reliance was placed on Chaitan Das v. Raghunath Singh and Girish Kakkar & Anr. v. Dhanwanti & Ors. . Learned counsel for the respondent argued to the contrary.
6. Law with regard to quashing of the criminal proceedings is well settled by the Supreme Court in State of Haryana v. Bhajan Lal, and in several subsequent decisions. Criminal proceedings can be quashed only where allegations made in the complaint taken on their face value and accepted in entirety, do not prima-facie constitute any offence or make out the case against the accused. Section 500 IPC provides for punishment for the offence of defamation, which is defined in Section 499 IPC. It reads:-
"499. Defamation.- Whoever, by words either spoken or intended to be read, or by sings 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.
Explanation 1 - 4 xxxxx First Exception to Tenth Exception.
xxxxx
7. The offence of defamation consists of three essential ingredients, namely, (i) making or publishing any imputation concerning any person, (ii) such imputation must have been made by words either spoken or by visible representations, and (iii) such imputation must be made with the intention, to cause harm or with the knowledge or having reasons to believe that it will harm reputation of the person concerned. Therefore, the intention or knowledge to cause harm are the essential ingredients to constitute the offence under Section 499 IPC. Exception 8 provides that it is 'not' defamation to prefer, in good faith an accusation against any person to any of those who has lawful authority over that person, with respect to the subject matter of accusation. The illustration to this Exception makes it absolutely clear. It reads:-
Illustration:-- If A in good faith accuses Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z,s master; if A in good faith complains of the conduct of Z, a child, to Z's father - is within this exception."
8. Thus, accusation made in good faith to those who have lawful authority over the person so accused is protected by the exception. Reference in this regard can be made to the law laid down by the Supreme Court in Rajendra Kumar Sitaram Pande v. Uttam wherein it was held:
"The question for consideration is whether the allegations in the complaint read with the report of the Magistrate make out the offence under Section 500 or not. Section 499 of the Indian Penal Code defines the offence of defamation and Section 500 provides the punishment for such offence. Exception 8 to Section 499 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 the subject matter of accusation. the report of the Treasury Officer clearly indicates that pursuant to the report made by the accused persons against the complainant, a departmental inquiry had been initiated that the complainant was found to be guilty. Under such circumstances the fact that the accused persons had made a report to the superior officer of the complainant alleging that he had abused to the Treasury Officer in a drunken state which is the gravamen of the present complaint and nothing more, would be covered by exception 8 to Section 499 of the Indian Penal Code. By perusing the allegations made in the complaint petition, we are also satisfied that no case of defamation has been made out."
9. In this case, it may be re-called that on 7-8-1981 respondent got his brother admitted for treatment in the petitioner's Nursing Home. He was not satisfied as the facilities were found lacking. On 12-9-1986 the respondent filed a criminal complaint under Sections 420/336/338 IPC The complaint was dismissed by the magistrate. However, revisional court directed the petitioner to be summoned and tried. He filed special Leave Petition in the Supreme Court challenging the order of summoning and praying for quashing of the complaint. The Special Leave Petition was granted. Appeal (Crl. Appeal No. 629/90) was allowed and the complaint and summoning order was quashed on 14th March, 1996 the Supreme Court. It was held:
"We have carefully gone through the complaint, the documents annexed thereto and the deposition of the complainant. On perusal thereof, we are unable to hold that a prima facie case under Section 420 IPC has been made out. From the judgments of the Additional Sessions Judge and the High Court we find that both the learned Courts have rested their findings on deception only and did not go into the question whether the complaint and its accompaniments disclosed the other essential ingredient of the offence under Section 420 IPC, namely, dishonest inducement. 'Dishonest' has been defined in Section 24 IPC to mean deliberate intention to cause wrongful gain or wrongful loss; and when with such intention deception is practiced and delivery of property is induced then the offence under Section 420 IPC can be said to have been committed. Judged in that context we find that there are no materials from which it can he said even prima facie that the appellant 'dishonestly induced' the complainant to part with his money.
We, therefore, allow this appeal and set aside the impugned order of the Additional Sessions Judge and the High Court and restore the order of the learned Magistrate dismissing the complaint."
10. Admittedly, copy of the complaint along with other connected documents were filed by the petitioner with the Special Leave Petition. The whole emphasis in the Special Leave Petition was to get the complaint quashed. It is apparent that the imputation was preferred in good faith by the petitioner to get the order of summoning quashed. this imputation cannot be said to have been made with the intention or knowledge to cause harm to the reputation of petitioner. The accusations were made before the Supreme Court which undoubtedly had authority over the subject matter in dispute. Thus, even if the allegations made in the complaint are taken to be true, in my view, no offence of defamation is made out.
11. For the forgoing reasons, petition is allowed.
12. The above noted complaint and proceedings thereon are hereby quashed.