Rajasthan High Court - Jaipur
Ismail Merchant And Anr. vs State Of Rajasthan And Miss Sunayna ... on 24 February, 1988
Equivalent citations: 1988(1)WLN526
JUDGMENT F. Hasan, J.
1. By this petition filed under Section 482, Code of Criminal Procedure, 1973, (Cr.PC) Ismail Merchant & Tim Van Rellim, both Co-producer of M/s Merchant Ivory Production which is producer of film, "Deceivers", under shooting have challenged the criminal proceedings before the Judicial Magistrate No, 4, Jaipur City Jaipur, under criminal complaint No. 1 moved at the instance of Miss Sunayna complainant-non petitioner No. 2, for quashing the proceedings, wherein they have been summoned for the alleged offences under Sections 292, 292, 268 & 500/34, IPC.
2. A sketch of primary facts giving rise to this criminal petition is thus, Sunayna Mishra, the non-petitioner No. 2 filed a complaint in the Court of Judicial Magistrate No. 4, Jaipur City, Jaipur, alleging therein that a film, "Deceivers", is being filminised by M/s Ismail Merchant Ivory Production; and for that purpose, shooting is going to be made in or around Jaipur City; the petitioners are in know of the fact that the aforesaid film depicts wrong feature and character of our Hindu culture, religion, and mythology; the Goddess of 'Kali' which is a symbol and Goddess of Power and worshipped througout the country by millions, has been depicted as 'Goddess of Evil' and has been projected as 'Demon God', as is evident from the extracts of the story. The non-petitioner No. 2 alleged while quoting some parts of the story of the aforesaid film, in the complaint that under the script of the film, it is also going to be shown that in India, there are certain bad customs, such as the practice of 'Sati', inasmuch as the example of recent `Deorala Sati calamity' where an innocent lady, Roop Kanwar has been forced to burn at the corpse of her husband, have been given in the story of that film. According the complaint of the non-petitioner No. 2 the story of film, 'Deceivers' depicted immoral acts, violence, vulgarity and does not show' Indians' (men and women) as being of good character Thus, as per the complaint, the story not only depicted distorted picture of the Hinduism but also advocates the institution of `Sati' which custom (Partha) has already been banned in India.
3. The non-petitioner No. 2 further stated that shooting of film `Deceivers' shows Indian culture and heritage in poor light, being critical of traditional Indian value and it has also distorted facts depicting, it is because the film depicts 'Maa Kali' as an evil spirit. According to the non-petitioner No. 2, the story of the film, `Deceivers' has hurt her sentiment as she is devotee of 'Maa Kali' and is also against 'satipratha'; and the people of the State (Rajasthan) including the complainant, expressed their resent against the film 'Deceivers' before the Chief Minister of the State & the State Minister for Personnel & Public Grievances, Government of India, who in term wrote a letter to Mr. Ajit Kumar Panja, the Minister for Information and Broad-Casting, Government of India,
4. After receiving the complaint, the subordinate Magistrate on the basis of the statements of the complainant, and her witnesses recorded under Sections 200 & 202 Cr.PC respectively, issued a process under Section 204 Cr.PC, against the petitioners. Hence this petition.
5. It is not disputed that the petitioners are associated with M/s Merchant Ivory Production which is an Indian company engaged in the assignment of film production.
6. The proceedings initiated by the Subordinate Magistrate are being challenged on the following grounds: After elaborate arrangements at considerable expense and investment had been made, serious preparation for the film began in January, 1987 when the Ministry of Information and Broadcasting, Government of India after thorough examination of the matter, granted permission for the shooting of film, "Deceivers", prior to which, there has been expert handling at various points and there has been a representative of the Ministry of Information and Broadcasting with the production unit at all the time during the shooting to ensure filminising as per the approved script. The producers carried out the suggestion made by the Ministry in the script submitted and the production is in progress well in accordance with the script duly approved by the Ministry, concerned. As averred m the petition, the production of the film has been going in America, England and India-technicians and other personnel came to be engaged in the beginning of July as a part of extensive preparations a huge amount has been invested in the preparation and Production of the aforesaid film.
7. The non-petitioner No. 2 filed a D.B. Civil Writ Petition No. 2503/87 before this Court inter-alia seeking cancellation of the permission granted to the film "Deceivers" by the Government of India, and also to have banned its shooting. The said writ petition came to be dismissed by this Court under its order dated October 8, 1987.
8. Thereafter, a civil suit seeking damages to the tune of rupees three lacs was filed by the petitioner against the complainant and others in the Court of District Judge and because of the pendency of this suit, according to the petitioners, the complainant has filed the complaint in question and which is based on facts as have been mentioned in the writ petition which was dismissed by this Court. That being so, according to the learned Counsel for the petitioners, the learned Subordinate Magistrate was not competent to issue process against the accused-petitioners, in as much as the petitioners have committed no offence and no such offences are made out in the complaint because the petitioners are carrying on their business in accordance with law after meeting out all the necessary required formalities.
9. Then the petitioners added that they are lawful having no other alternative remedy except to invoke inherent jurisdiction of this Court under Section 482, Cr.PC so as to have proceedings quashed because the learned Subordinate Magistrate ignored the facts and circumstances of the case and after dismissal of the writ petition the continuance of the proceedings against the petitioners is an abuse of process of Court in as much as there was no sufficient material before the Magistrate so as to issue process against the petitioners.
10. The petitioners filed a certified copy of the order passed by this Court on October 8, 1987 in the writ petition No. 2503/87 (supra), along with this criminal misc. petition and got original file of the aforesaid writ petition summoned. As is apparent from the order in writ petition, the Film Facilities' Officer of the Ministry of Information and Broadcasting, Government of India, conveyed permission for shooting of the said film, "Deceivers" vide its letter dated January 9, 1987, where by certain conditions were also imposed relating to the change in the script. This Court found that amongst the changes suggested in the said letter are deletion of objectionable scenes at number of pages. From the certificate dated 2nd September, 1987 issued by the Film Facilities Officer, this Court found that the petitioners company has carried out deletion/modification in the script of the film as suggested in the letter dated 9th January, 1987 and thereafter the film was cleared for shooting. This Court also found that by letter dated 18th September, 1987 the Film Facilities Officer has asked the Station Director of the All India Radio to depute one of their Officers as Liason Officer whose main duty is to ensure that the shooting is done according to the script and further to see that nothing detrimental to the image of the country is shot and, in case there is difference of opinion, on any scene between the Liason Officer and the film party, the same was sought to be referred to the Government of India for a decision.
11. Under the order in writ petition (supra), this Court further found that from the letter of one Shri Basant Vyas who has made complaint to Shri Chidambaram, Minister of State in the Ministry of Personnel and Public Grievances, Government of India, it appears that the petitioners have accepted the suggestion of Shri Vyas and the script has been improved and objectionable 'Sati' scenes from the new script of the film have been removed. And at the conclusion, this Court observed as under:
Keeping in view of the facts and circumstances referred to above we are of the view that the apprehension of the petitioner that during the course of the shooting of the film no check is being maintained by the authorities and that the film will be allowed to portray the women of India in a derogatory fashion, is not well founded. There is no reason to assume that respondents No. 1 to 4 will not take adequate steps to prevent such a thing to happen.
12. On the basis of the aforesaid finding arrived at by this Court in its order dated 8-10-1987 in the writ petition (supra), learned Counsel for the petitioners contended that the petitioners' stand is duly protected against criminal prosecution in view of Section 79, IPC, as they have acted on the basis of categorical, definite and unequivocal permission accorded by the Government of India in exercise of its executive authority in constitutional manner. The learned Counsel for the petitioners further based his arguments on the grounds urged in the misc. petition.
13. Learned Counsel for the non-petitioner No. 2 argued that the scope of Section 482, Cr.PC is limited and while deciding such an application, this Court is not competent to consider the judgment filed by the petitioners along with their miscellaneous petition, as this judgment was not there before the Magistrate who issued process against the petitioners this judgment is an additional matter and cannot be accepted or taken into consideration while entertaining the application under Section 482, Cr.PC. In support of his aforesaid argument, the learned Counsel placed reliance on the judgment in Smt. Nagawwa v. Veeranna followed in the decision of the Apex Court in . The learned Counsel further submitted that the facts alleged in the complaint as well as in the statement recorded under Sections 200 and 202, Cr.PC prima facie show that the petitioners committed offences under various Sections of the Indian Penal Code which are mentioned in the complaint. The learned Counsel for the complainant then referred to these parts of the script of the film, "Deceivers" which have been mentioned in the complaint in order to show that the offence alleged is committed by the petitioners.
14. Learned Counsel for the complainant further submitted that in the instant case, there is no statutory bar in filing the camplaint against the petitioners and there is a difference in between the statutory bar and exceptions. The statutory exceptions are defence which cannot be entertained at the time of issue of process. To support his argument, the learned Counsel referred to the decision in Smt. Nagawwa v. Veeranna (supra).
15. Then, the learned Counsel for the complainant wrangled that there is no law to obtain sanction for starting shooting of a film. Section 5A of the Indian Cinematograph Act applies after to the completion of the shooting and this is correct to say that after issue of certificate under Section 5A of the Cinematograph Act the prosecution is not possible. The Film Facilities Officer has no power to issue any certificate. Hence the petitioners cannot take shelter of this certificate, the learned Counsel further added.
16. Before going into merits of the case and considering the grievance of the petitioners, I would like to consider the scope of Section 482, Cr.PC.
17. Crucial question arises in the present case is as to when the High Court acting under the provisions of Section 482, Cr.PC should exercise the inherent powers in so far as quashing of criminal proceedings are concerned. This matter was gone into in greater detail in catena of decisions of the Apex Court. According to the principles laid down in Sharada Prasad Sinha v. State of Bihar , it is now settled law that where the allegations set out in the complaint or the charge sheet do not constitute any offence, it is competent for the High Court exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence. It is, therefore, manifest that this Court has unlimited powers to interfere in the cases where the process has been issued by the Magistrate against an accused without any reason or without any foundation, and if the Court is satisfied that the process has been issued without any basis, the Court is fully competent to quash the proceedings.
18. In Smt Nagawwa v. Veeranna (supra), where the scope of Sections 202 and 204, Cr. PC, was considered and while laying down the guidelines and the grounds on which proceedings and an order of Magistrate issuing process can be quashed, their Lordships of the Apex Court observed as under:
Thus is may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:
[1] where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
[2] whether, the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can every reach a conclusion that there is sufficient ground for proceeding against accused;
[3] where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and [4] where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
19. Thus, it can patently be said that the complaint can be dismissed on the ground that the complaint suffers from the fundamental legal defect, or that the evidence or the material on the basis of which the process is issued, is inadmissible, or that there is no sufficient ground for proceedings against the accused.
20. Therefore, the instances, quoted above, laid down by their Lordships of the Apex Court in Smt. Nagawwa v. Veeranna (supra), provide sufficient guidelines to indicate contingencies where this Court can quash proceedings and it cannot be said that no interference is possible under Section 482, Cr. PC in the order of Magistrate issuing process against the accused, and such an interference is thus possible in certain circumstances only.
21. The question which, therefore, arises for consideration is, whether in the facts and circumstances of the present case, the Magistrate was competent to issue process against the petitioners, or whether any interference is warranted in order to quash the criminal proceedings against the petitioners before the Subordinate Court, exercising inherent powers under Section 482, Cr.PC.
22. During the course of arguments, the learned Counsel for the complainant-non-petitioner did not dispute that the complainant filed writ petition against the petitioner before this Court by invoking its extra ordinary jurisdiction under Article 226 of the Constitution of India which came to be dismissed by the Division Bench of this Court under its order dated Oct. 8, 1987 reference of which had already been made in the present order.
23. It would pertinently be mentioned here that the complaint was filed by the complainant-non-petitioner more than ten days after the dismissal of the writ petition.
24. I have gone through the facts alleged in the complaint, and I find that the complainant deliberately concealed the details of public interest litigation and also its decision, in her complaint. The complaint and the public interest litigation (writ petition No. 5503/87,) touches the same controversy in legal field as is apparent from the record, and the inference is precise and patently obvious because the complainant has invoked criminal jurisdiction after writ petition was dismissed. And, it appears that the complainant after having frustrated by the decision of this Court in the heirarchy of writ court, has further involved the petitioners in criminal prosecution which prima facie appears to be an abuse of the process of law. Day in and day out in courts petitions are accepted and rejected in favour of one of the parties. If in all such cases complaints under Criminal Procedure Code, are to be filed, not only these will open up floodgates of litigation but it would unquestionably be an abuse of the process of the Court. And, in criminal jurisdiction, Section 482, is meant to prevent such like abuse of process of the Court.
25. In Chandrapal Singh v. Maharaj Singh AIR 1982 SC 1239, wherein a landlord after having failed in hierarchy of civil courts has further started criminal proceedings against a tenant and in these circumstances, their Lordships of the Apex Court observed that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court. In that case, complainant was an Advocate who lost in both courts in the rent control proceedings and had rushed to the criminal court. And this according to their Lordships speaks volumes. Then their Lordship observed as follows:
Add to this the fact that another suit between the parties was pending from 1975. The conclusion is inescapable that invoking the jurisdiction of the criminal court in this background is an abuse of the process of law and the High Court rather glossed over this important fact while declining to exercise its powers under Section 482, Cr.PC.
Thus, the appeal was allowed and the Order of the High Court was set aside and the proceedings before the Chief Judicial Magistrate were quashed.
26. In the writ petition (supra), the non-petitioner-complainant felt aggrieved particularly as regards infringement of fundamental rights under Article 19(1)(a) and Article 25 of the Constitution of India and in that regard, pointed out certain scenes as set out in the petition so also the rejoinder along with additional affidavits. These very scenes and area are the subject matter of the complaint in criminal court. That being so, the criminal Court being seized of the matter after this Court hid dismissed the complainant's writ petition on the same facts would certainly be an omniscience of abuse of the process of the Court. This Court had dismissed the complainant's writ petition taking into note of the fact that the petitioners were engaged in the activity of shooting of the film "Deceivers" after obtaining permission granted by the Government of India. According to, the order of this Court; the petitioners initially worked after the Government of India had in lawful exercise of the authority accorded permission to the petitioner's company. In the order dated October 8, 1987 of this Court in writ petition (supra) details of permission granted to the petitioners company by the Film Facilities Officer have been given and, from that it appears that the permission was granted by the Government of India after a careful scrutiny and after providing adequate safeguards, checks, and balance. This, court, while dismissing the complainant's writ petition observed that that there was no reason to assume that that Government of India will not take adequate steps to prevent such a thing to happen, if warranted. It is thus clear that the petitioners started their shooting of the film "Deceivers" after obtaining permission from the Government of India.
27. It has been contended by the learned Counsel for the complainant that the Film Facilities Officer was not competent under any provisions of any law to grant such permission and in these circumstances, the petitioners cannot take shelter of certificate or no protection can be claimed by the petitioners. On a bare look at the order dated October 8, 1987 in writ petition (supra), it would be obvious that permission accorded to the petitioners by the Film Facilities Officer was in the exercise of his executive authority. In Ram Jawaya v. State of Punjab , the orders in executive powers where held to be valid. The relevant observations read thus:
The executive indeed can exercise the power of departments of subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law. This is clear from the provisions of Article 154 of the Constitution but it does not follow from this that in order to enable the executive to function there must be a law already in existence and that the powers of the executive are limited merely to the carrying out of these laws.
It is thus clear that the story of the film, "Deceivers" was fairly examined by the Government of India and after scrutiny the permission was accorded to the petitioners with certain restrictions for shooting and in these circumstances it cannot be said that the petitioner were not legally to entitled to filminise the film, 'Deceivers'. The Cinematograph Act, 1952 provides no restriction imposed at the stage of shooting or script preparation. But, still the executive examined story and script of the film "Deceivers". In Raj Kapoor v. Laxman , their Lordships of the Apex Court observed as under:
Jurisprudentially viewed, an act may be an offence, definitionally speaking but a forbidden act may not spell inevitable guilt if the law itself declares that in certain special circumstances it is not to be regarded as an offence.
The Chapter on General Exceptions operates in this province. Section 79 of Penal Code makes an offence a non-offence. When? only when the offending act is actually justified by law or is bonafide believed by mistake of fact to be so justified. If, as here, the Board of Censors acting within their jurisdiction under Cinematograph Act, 1952 and on an application made and pursued in good faith, sanctions the public exhibition, the producer and connected agencies do en er the statutory harbour and are protected from prosecution under Section 292 of the Penal Code because Section 79 exeperates them at least in view of their bonafide belief that the certificate is justificatory. Thus, the trial court when it hears the case may be appropriately apprised of the certificate under the Act and, it fills the bill under Section 79 it is right for the court to discharge the accused as the charge is groundless. In the present case, the prosecution is unsustainable because Section 79 is exculpatory when read with Section 5A of the Cinematograph Act and the certificate issued thereunder.
28. After perusal of the entire record, it appears that the Government of India has, while granting permissions, acted with unmost care and caution and has created adequate machinery by subjecting the petitioners to restrictions a system similar to the provisions of the Cinematograph Act, 1952. The petitioners have not even alleged any breach of any obligations on their part. Criminal prosecution in such a situation is glaring misuse of the process of the Court.
29. In the light of the observations of the Supreme Court in Ram Jawaya v. State of Punjab (supra) it can safely be said that permission granted by the Film Facilities Officer has its legal entity and in these circumstances it was open for the complainant to have challenged it according to law in a legal forum but having failed to challenge this permission, I am of the opinion that such a permission cannot be challenged in an application under Section 482, Cr.PC.
30. A striking and peculiar feature of the complaint is that there is no allegation of publication by the petitioners. The complainant has assiduously laboured and used her investigative skills to have her feelings hurt. The petitioners had continued with the work without any involvement of the complainant. The original script of the film is not there with the complainant. No secondary evidence was adduced for the aforesaid script of the film. The complainant though mentioned certain portions which are claimed by her to be portions of the story of the film, "Deceivers".
31. A document marked as Exhibit I is filed along with complaint which claimed to be a copy of the script but it has neither been attested certifying it to be true copy of the script nor the same is admitted by the petitioners as true copy of the script. It has been contended by the learned Counsel for the petitioners that in the script of film, "Deceivers" there is nothing so as to make it obscene. The film, "Deceivers" is a creative and it emphasises the problems which all affect the society in various spheres. The learned Counsel further submitted that the story cannot be said to be obscene merely because slang and unconventional words have been used in the script of the film, the real object of which can be obviated after going through the entire story of the film, and no inference of obscenity can be drawn on the basis of so called portions of the film which had been quoted in the complaint and which are said to have been contained in document (Ex. 1) filed along with complaint.
32. In Samaresh Bose v. Amal Mitra their Lordships of the Supreme Court observed as under:
In judging the question of obscenity, the Judge in the first place should try to place himself in the position of the author and from the view point of the authority the Judge should try to understand what is it that the author seeks to convey and what the author conveys has any literary and artistic value. The Judge should thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have on the minds of the readers. A Judge, should thereafter apply his judicial mind dispassionately to decide whether the book in question can be said to be obscene within the meaning of Section 292 IPC by an objective assessment of the book as a whole and also of the passage complained of as obscene separately.
It has further been observed that a novel written by a well known writer of novels and stories, by which the author intends to expose various evils and ills pervading the society and to pose with particular emphasis the problems which all affect the society in various spheres, cannot be said to be obscene merely because slang and unconventional words have been used in the book in which there have been emphasis on sex and description of female bodies and there are the narrations of feelings, thoughts and actions in vulgar language.
33. In view of the aforesaid said observations it is thus clear that the objectional matter can be judged only when the original or its authentic copy is before the Court & that too not in parts. The whole matter should be before the Court and in that situation the Court can form its opinion as to judge whether the matter in dispute is obscene or not, because vulgar writing is not always obscene. Vulgarity arouses a feeling of disgust and revulsion and also boradom but does not have the effect of depraving, debasing and corrupting the morals of any reader of the novel, the Apex Court further added in Samaresh Bose v. Amal Mitra (supra).
34. In order to constitute an offence under Section 292 IPC, the matter complained of as obscene must be so gross and its obscenity is so pronounced that it is likely to deprave and corrupt those minds are open to influence of this sort and into whose hands the book is likely to fall. The concept of obscenity is moulded to a very great extent by the social outlook of the people who are generally expected to read the book which usually differs from country to country depending on the standards of morality of contemporary society in differents countries. When the out look of the Judge may differ from another Judge on the question of obscenity in as much as even in the matter of objective assessment the subjective attitude of the Judge hearing the matter is likely to influence, even though unconsciously, his mind and his decision on the question.
35. It is thus clear that an over-all view of the obscene matter in the setting of the whole work, would of course be necessary but the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to corrupt those whose minds are open to influence and this is only possible when the original script is before the Court because, on a bare reading of Sub-section (1) of Section 292, IPC, it is obvious that the matter should be deemed to be obscene (i) if it lascivious (ii) tends to deprave and corrupt persons who were likely to read it.
36. In view of the aforesaid observations, it is thus clear that the matter in dispute was not before the Court in its original form still the Subordinate Court form its opinion and came to the conclusion that the matter was obscene and the petitioners committed offence under Section 292. IPC. I am of the opinion that in the aforesaid circumstances, no opinion can be expressed as to whether the petitioners committed offence as is defined in Section 292 or Section 268, IPC. Moreover, the matter mentioned in the complaint was also subject matter of the writ petition and that writ petition was dismissed holding that the story has been approved by the Film Facilities Officer and various conditions have been imposed on the petitioners for shooting. In these circumstances, this Court observed that the complainant can not be said to an aggrieved person with the contents of the script of the film, "Deceivers". As stated earlier, after the decision of the writ petition no otherwise inference can be drawn by the Criminal Court and in this view of matter, the learned Subordinate Court was not justified in arriving at different conclusion. I do not agree with the contention of the learned Counsel for the complainant that this Court should not take notice of the order passed by this Court in the writ petition (supra) because this is in an important piece of evidence and demolishes the whole case of the complainant. When such important material is brought to the notice of the Court the same cannot be ignored. Obviously, the basic ingredients of the offences alleged against the petitioners are lacking and as such prosecution is untenable.
37. During the course of arguments, it has not been disputed that the Film Facilities Officer permuted shooting of the Film "Deceivers" In the writ petition, the complainant has stated that the action of the State Government which without going to the very root of the matter and without reading script of the film, "Deceivers" without applying mind, appears to have Iran ed permission to petitioners for shooting in or around Jaipur City, is illegal and arbitrary against the safeguards enshrined by the Constitution under Article 25 and after haying aggrieved by the said action, the complainant had submitted the writ petition before this Court. In these circumstances, it is admitted position that the permission was given to the petitioner for shooting of the film.
38. In the Complaint, it has been stated that the complainant along with Raghvendra Singh went to the petitioners and objected to the shooting of the film, "Deceivers", upon this, the petitioners used defamatory words and uttered objectionable language on the character of the complainant In the complaint, actual words alleged to have been spoken by the petitioners have not been mentioned. It has also not been mentioned as to what were the allegations made against the complainant.
39. In her statement under Section 200 Cr.PC the complainant stated the following versions:
^^ nksuks us esjs lkFk viekutud O;ogkj fd;k A fVeoku ,oa bZLekbZy us dgk fd rqe fgUnqLrkuh vkSjrks dk D;k pfj= gS ^^ ^^17 vDVwcj dks fVeoku jsfYte us ;g Hkh dgk fd rqEgkjh D;k dher gS A^^ Raghvendra Singh in his Statement under Section 202, Cr.PC stated as follows:
^^lqu;kuk dks fVeoku ,oa bZLekbZy us dgk fd rqEgkjh D;k dher gS A^^ Looking to the aforesaid version given out by the complainant and her witness, Raghvendra Singh, the learned Subordinate Magistrate was of the opinion that prima facie case is made out against the petitioners for the offence under Section 500, IPC Under Section 199, IPC, no court shall take cognizance of offence of defamation except upon a complaint made by a person aggrieved by the offence. In these circumstances, the complainant could have filed the complaint only for the grievance of herself and not for the others in general. The complainant in her complaint alleged that sentences uttered by the petitioners were defamatory in nature and the sentence which has been quoted by the complainant is as to what was her cost. Now it is to be seen as to whether this sentence is sufficient to constitute an offence under Section 500, IPC.
40. The question whether an imputation or accusation is defamatory or not, is a timed question of law and fact. If there is controversy as to whether the material complained of is defamatory or not, the Court Will first have to decide, as a question of law, as to whether the said material is capable of being understood in a defamatory sense. If the Court will first have to decide, as a question of law, as to whether the said material is capable of being understood in a defamatory sense. If the Court decides the question in the affirmative, it will then only proceed to determine whether the said material containing a defamatory potential had in fact harmed the reputation of the complainant. Court, in every case is required to decide whether or not alleged words are reasonably capable of bearing defamatory meaning in the particular circumstances in which they have been published or spoken. The essence of the offence of defamation consists in calling that description of pain which is felt by a person who knows himself to be the object of the unfavourable sentiments of his follow creatures and those inconveniences to which a person who is the object of such unfavourable sentiments is exposed. The words of visible representations, therefore, complained of must contain an imputation concerning some particular person or persons whose identity can be established. If they contain no reflection upon a particular individual or individuals, but equally apply to others although belonging to the same class, an action for defamation will not lie.
41. If the instant case is judged in the light of the aforesaid observations, I am of the opinion that the essential ingredients required to constitute the offence of Section 500, IPC appears to be lacking both in the allegations set out in the complaint and in the statement of the witnesses. As stated earlier, in para 1 of the complaint, it has been averred that the complainant along with Raghvendra Singh went to the petitioners and objected about the film and on this, the petitioners used obscene language and gave threats to the complainant and used defamatory language before Raghvendra Singh and levelled charges against the character of the complainant. In this paragraph it has not been mentioned as to what were the actual wordings spoken by the petitioners, in order to constitute offence under Section 500, IPC. It has also not been averred as to what sort of charges were levelled against the complainant and her character. In her statement under Section 200, Cr.PC the complainant has given out version that both the petitioners had shown discourteous conduct, and further uttered words as to what was the character of an Indian woman. The complainant further deposed that the petitioner, Tim Van Rellim uttered words as to what was her cost. Raghvendra Singh who has also been examined under sect on 200, Cr.PC did not support the statement of complainant to effect that, "what was the character of an Indian woman", was spoken by the petitioner. This witness merely deposed that the petitioner told the complainant as to what was her cost and what was the costs of Indian woman. The complainant in her statement deposed that only Tim Van Rellim told her, "what were her costs". But the witness has stated that these words were spoken by the petitioner, Ismail and Rellim. It is thus clear that on this point, the statement of both the witnesses is discrepant and no reliance can be placed on the statements of these witnesses. Moreover, the aforesaid sentences which are said to have been uttered by the petitioners are ambiguous. It for the complainant to explain as to what was the sense of the petitioners in uttering aforesaid sentences. It has not been clarified in in the statement of the aforesaid witnesses as to in what sense the aforesaid sentences were uttered, and without any clarification in this regard it cannot be said that the aforesaid sentences were defamatory in nature because, the words spoken by the petitioners must come within the definition of 'Imputation' and, 'imputation' must have bee made with an intention to harm or knowing or having reasons to believe that it will harm reputation of the person concerned against whom it is made. The imputation means accusation against a person and it implies allegation of fact not, merely a term of abuse. In the instant case, there is no allegation whatever of any imputation which is alleged to have been made by the petitioners.
42. In these circumstances, I am of the opinion that the ingredients of the offence of Section 500. IPC are lacking in the present case. Thus it is clearly a case where the allegations contained in the complaint do not constitute any offence and the learned Subordinate Judicial Magistrate was certainly in error in taking cognizance of the complaint of this type and in issuing process against the petitioners.
43. My attention has been drawn to a very recent decision of the Supreme Court in State of Punjab v. Dharam Singh and Ors. 1987 Cr.LR SC 618 where, as it appears from the decision, the High Court allowing a petition under Section 482, Cr.PC quashed the first information report registered against the accused, therein, and the proceedings taken in pursuance thereof However, their Lordships of the Supreme Court observed that the order of the High Court cannot be sustained because the police authorities enjoined by law to register a case and conduct investigation when ever information is laid regarding the commission of cognizable offences and as such, the quashing of a first information report will amount to restraining the police authorities from performing the duties enjoined upon them by law.
44. Obviously, the aforesaid decision is, therefore, distinguishable from the present case because, here the process has been issued against the accused on the complaint after recording some evidence under Section 200, & 210, Cr.PC for the offence of sections 292, 292. 268, & 500/34 IPC. And, these proceedings have been been challenged before this High -Court under Section 482, Cr.PC on manifold grounds including one, that the facts alleged in the complaint before the Magistrate have been finally adjudicated by this High Court under Article 226, of the Constitution of India, in writ petition which was rejected, and even before the Subordinate Magistrate, this fact was concealed in order to procure the order of issuance of the process against the accused-petitioner. Second ground for challenge in the present case is that the process on the complaint has been issued without substance because the complaint did not constitute any offences alleged therein.
45. The cited authority, however, was of a case where the Supreme Court observed that the High Court had not confined its scrutiny of the averments contained in the first information report but has traversed beyond and examined the case in the light of the contentions put forth by the respondents in their petition under Section 482, Cr.PC. Then their Lordships observed that by indulgence in such exercise what the High Court has done is to go far beyond the contents of the first information report. But here in the present case, as discussed above the circumstances are different. With the deepest reverence, I would like to observe that the decision cited is never an authority on the questions involved in the present case and those observations, to my mind, do not create any bar to the jurisdiction of this Court under Section 482, Cr.PC in the present set of circumstances. The case cited by Shri Kuhad is thus distinguishable and is of no help to the complainant.
46. I am, therefore, of the view that the learned Subordinate Magistrate ought not to have taken cognizance of the proceedings for reasons herein indicated in respect of different offences. I consider it to be a fit case to invoke jurisdiction under Section 482, Cr.PC. I accordingly, allow this criminal misc. petition, set aside and quash the proceedings before the learned Subordinate Magistrate, which have been initiated by him, being abuse of process of the Court and, therefore, the complaint in question deserves to be dismissed and thus the same is dismissed. The petitioners are discharged. Their bail bonds stand cancelled.