Himachal Pradesh High Court
Mohinder Nath Sofat Son Of Shri Ram ... vs Dr. Rajeev Bindal Ex-Health Minister Of ... on 7 December, 2016
Author: P.S. Rana
Bench: P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
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Cr.MMO No. 10 of 2016
Order Reserved on 21st November 2016
Date of Order 07 December 2016
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Mohinder Nath Sofat son of Shri Ram Krishan Sofat
....Petitioner/Accused
of
Versus
Dr. Rajeev Bindal Ex-Health Minister of H.P.
....Non-petitioner/Complainant
________________________________________________________
Coram
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The Hon'ble Mr. Justice P.S. Rana, J.
Whether approved for reporting?1 Yes.
______________________________________________________________ For Petitioner: Mr. H.S. Rana, Advocate.
For Non-petitioner: Mr. Sudhir Thakur Advocate. _____________________________________________________________ P.S. Rana, Judge Order Present petition is filed under Article 227 of Constitution of India read with Section 482 Cr.P.C. against summoning order dated 2.6.2012 passed by learned Chief Judicial Magistrate Solan District Solan H.P. in private complaint No. 49/2 of 2012 registered under Sections 499, 500, 501, 502, 503, 504, 505, 506 read with Section 177, 182 and 186 of Indian Penal Code and against order of learned 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:41:41 :::HCHP 2Additional Sessions Judge-I Solan District Solan passed in revision petition No. 17-S/10 of 2012 vide which learned .
Additional Sessions Judge partly accepted the revision petition and affirmed summoning order issued against petitioner qua criminal offence punishable under Section 500 IPC only.
Brief facts of the case
2. Dr. Rajiv Bindal Ex-Health minister of H.P. filed of private criminal complaint against Shir Mohinder Nath Sofat under Sections 500, 501, 502, 503, 504, 505 and 506 read rt with Section 177, 182, and 186 of Indian Penal Code alleging that at the time of filing of complaint complainant was Health Minister in Government of H.P. for the last four years and previously he was member of legislative assembly of Himachal Pradesh from Solan constituency (H.P.). It is alleged that complainant namely Dr. Rajiv Bindal enjoys very good reputation. It is further alleged that accused alleged false allegations of corruption against complainant namely Dr. Rajiv Bindal. It is further alleged that accused has alleged by way of publication in news that complainant was owning 300 metres of land only prior to elections and after elections complainant is owner of 160 bighas of land. It is alleged that accused has uttered words that complainant is brand ambassador of corruption. It is alleged that above stated act of accused is ::: Downloaded on - 15/04/2017 21:41:41 :::HCHP 3 highly defamatory and highly derogatory in nature. Prayer for punishment of accused in accordance with law sought.
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3. Learned Trial Court examined three witnesses in preliminary evidence namely CW1 Dr.Rajiv Bindal, CW2 Lokeshwar and CW3 Kanti Sarup. Learned Judicial Magistrate held that after perusal of oral statements of CW1 Dr.Rajiv Bindal, CW2 Lokeshwar and CW3 Kanti Sarup coupled with of documentary evidence Ext.P1 to Ext.P82 prima facie case is made out against accused under Sections 500, 504, 506 IPC.
rt Learned Chief Judicial Magistrate Solan held that no primafacie case against accused is made out qua criminal offence punishable under Sections 501, 502, 503, 505, 177, 182 and 186 IPC.
4. Feeling aggrieved against summoning order of learned Chief Judicial Magistrate accused Mohinder Nath Sofat filed revision petition No. 17-S/10 of 2012 before learned Additional Sesisons Judge-I Solan. On 29.10.2015 learned Additional Sessions Judge-I Solan District Solan H.P. partly allowed the revision petition. Learned Additional Sessions Judge held that no primafacie case under Sections 504 and 506 IPC is made out against accused Mohinder Nath Sofat.
However learned Additional Sessions Judge-I Solan District Solan H.P. held that primafacie case under Section 500 IPC is made out against accused.
::: Downloaded on - 15/04/2017 21:41:41 :::HCHP 45. Feeling aggrieved against order of learned Additional Sessions Judge-I Solan District Solan H.P. accused .
Mohinder Nath Sofat filed present petition under Article 227 of Constitution of India read with Section 482 of Code of Criminal Procedure 1973 before High Court of H.P.
6. Court heard learned Advocate appearing on behalf of petitioner and learned Advocate appearing on behalf of of non-petitioner and also perused the entire record carefully.
7. Following points arises for determination in this petition:-
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1. Whether petition filed under Article 227 of Constitution of India read with Section 482 of Code of Criminal Procedure is liable to be accepted as per grounds mentioned in petition?
2. Final Order.
8. Findings upon Point No.1 with reasons 8.1 CW1 Dr. Rajiv Bindal has stated in preliminary evidence that he is doctor by profession and he is private practitioner. He has stated that he is also social worker. He has stated that he was elected as legislature from Solan in the year 2000. He has stated that thereafter he was again elected as legislature in the year 2003. He has stated that thereafter he was again elected as legislature in the year 2007. He has further stated that thereafter he was appointed ::: Downloaded on - 15/04/2017 21:41:41 :::HCHP 5 as Health Minister in H.P. Government w.e.f. 9.1.2008. He has stated that he belongs from reputed family and his father .
used to pay income tax. He has stated that accused is his political rivalry. He has stated that accused contested the assembly elections against him in the year 2003 but he was defeated. He has stated that accused started giving defamatory statement against him in the media. He has of stated that defamatory statement was also published in newspaper against him. He has stated that accused uttered rt false defamatory statement against him with intention to defame him in general public. He has further stated that his reputation was effected in general public due to defamatory statement given by accused in press. He has tendered into evidence news items Ext.P1 to Ext.P86 placed on record. He has stated that thereafter he issued notice Ext.PX to accused.
He has also stated that postal receipt is Ext.PY and reply of notice is Ext.PZ. He has stated that accused be punished in accordance with law.
8.2 CW2 Lokeshwar has stated in preliminary evidence that complainant Dr.Rajiv Bindal is known to him and accused namely Mohinder Nath Sofat is also known to him. He has stated that doubt has created in his mind about integrity of Dr.Rajiv Bindal after allegations of corruption levelled by accused Mohinder Nath Sofat against Dr.Rajiv Bindal. He has ::: Downloaded on - 15/04/2017 21:41:41 :::HCHP 6 stated that after allegations of corruption he did not generally meet Dr.Rajiv Bindal. He has stated that Dr.Rajiv Bindal was .
not called in social functions due to allegations of corruption levelled against Dr.Rajiv Bindal in press and media by accused Mohinder Nath Sofat.
8.3 CW3 Kanti Sarup has stated that he remained as Pardhan of Gram Panchayat continously for two times and of remained Up-Pardhan of Panchayat for one time. He has stated that complainant Dr.Rajiv Bindal is known to him. He rt has stated that Dr.Rajiv Bindal complainant is honest person and he has great reputation in society. He has stated that complainant Dr.Rajiv Bindal has won assembly elections due to good reputation. He has stated that accused Mohinder Nath Sofat levelled false allegations against Dr.Rajiv Bindal relating to acquirement of property in illegal manner. He has stated that defamatory statements were published in papers and media. He has further stated that Mohinder Nath Sofat accused visited village to village and spread defamatory statements against Dr.Rajiv Bindal. He has stated that when he read defamatory statement against complainant Dr.Rajiv Bindal in newspaper he stopped meeting with Dr.Rajiv Bindal.
He has stated that reputation of Dr.Rajiv Bindal effected due to defamatory statements published in newspaper.
::: Downloaded on - 15/04/2017 21:41:41 :::HCHP 78.4 Complainant also tendered into preliminary evidence news publications Ext.P1 to Ext.P86.
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9. Submission of learned Advocate appearing on behalf of petitioner that there is no sufficient ground for summoning the accused under Section 500 IPC in present case is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused of testimonies of CW1 Dr.Rajiv Bindal, CW2 Lokeshwar and CW3 Kanti Sarup recorded under preliminary evidence and Court rt has also carefully perused documentaries evidence Ext.P1 to Ext.P86 placed on record. After careful perusal of testimonies of CW1 Dr.Rajiv Bindal, CW2 Lokeshwar and CW3 Kanti Sarup in preliminary evidence and after careful persual of documentaries evidence Ext.P1 to Ext.P86 annexed with complaint Court is of the opinion that there are sufficient grounds to proceed against accused under Section 500 IPC.
10. Submission of learned Advocate appearing on behalf of petitioner that accused did not commit any offence punishable under Section 500 IPC and on this ground petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. It is held that judicial findings whether accused committed criminal offence punishable under Section 500 IPC or not cannot be given at this stage of case and judicial findings relating to fact whether accused has ::: Downloaded on - 15/04/2017 21:41:41 :::HCHP 8 committed criminal offence or not will be given by learned Trial Court after giving due opportunities to both parties to .
lead evidence in support of their case. It is well settled law that at the time of summoning accused learned Trial Court is not under legal obligation to weigh evidence in meticulous consideration. It is held that at the stage of summoning the accused Magistrate is mainly concerned with allegations made of in complaint and preliminary oral evidence and documentaries evidence adduced in support of complainant. It is well settled rt law that Magistrate should not enter into detailed discussion of merits and demerits of case and Magistrate should primafacie satisfy whether there are sufficient grounds for proceeding against accused or not at the summoning stage of case. See AIR 1976 SC 1947 Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi. See AIR 1963 SC 1430 Chandra Deo Singh vs. Prokash Chandra Boase. See AIR 2016 SC (Weekly) 122 Madan Razak vs. State of Bihar.
11. Submission of learned Advocate appearing on behalf of petitioner that complainant did not examine publisher or auditor in preliminary evidence and on this ground petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that oral testimonies of CW1 Dr.Rajiv Bindal, CW2 Lokeshwar and CW3 Kanti Sarup are prima facie sufficient ::: Downloaded on - 15/04/2017 21:41:41 :::HCHP 9 grounds to proceed against accused under Section 500 IPC because CW2 Lokeshwar has specifically stated when he .
appeared in witness box that after publication of defamatory statement in newspaper reputation of complainant CW1 Dr.Rajiv Bindal lowered down in his eyes and he ceased his links with Dr.Rajiv Bindal. Similarly CW3 Kanti Sarup has also stated that after publication of defamatory statement against of complainant Dr.Rajiv Bindal in press reputation of Dr.Rajiv Bindal lowered down in his eyes and he stopped meeting rt Dr.Rajiv Bindal. It is held that oral testimonies of CW2 Lokeshwar and CW3 Kanti Sarup are sufficient to proceed against accused Mohinder Nath Sofat under Section 500 IPC.
12. Submission of learned Advocate appearing on behalf of petitioner that testimonies of CW1 Dr.Rajiv Bindal, CW2 Lokeshwar and CW3 Kanti Sarup are not sufficient to proceed against accused because none of witnesses has stated that they have seen the petitioner issuing statement in press or public and on this ground petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. CW2 Lokeshwar and CW3 Kanti Sarup have specifically stated in preliminary oral evidence that when they read the news in newspaper that complainant Dr.Rajiv Bindal has acquired illegal property by way of corruption after becoming Health Minister of H.P. Government then reputation ::: Downloaded on - 15/04/2017 21:41:41 :::HCHP 10 of Dr.Rajiv Bindal lowered down in their eyes. There are direct allegations against accused Mohinder Nath Sofat that news .
were published in newspaper at the instance of accused Mohinder Nath Sofat. It is held that in view of above stated facts primafacie there are sufficient grounds to proceed against accused under Section 500 IPC.
13. Submission of learned Advocate appearing on of behalf of petitioner that dcouments were released to media on behalf of H.P. Lokhit Paty a breakaway group of BJP and on rt this ground petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Accused Mohinder Nath Sofat at the time of release of news item was member of Lokhit party a breakaway group of BJP and Mohinder Nath Sofat had released the documents to media directly and direct active participation of accused is primafacie proved at this stage of case as per testimonies of CW2 Lokeshwar and CW3 Kanti Sarup and as per documents Ext.P1 to Ext.P86 adduced in preliminary evidence.
14. Submission of learned Advocate appearing on behalf of petitioner that complainant did not implead Lokhit party as co-accused in present case and on this ground petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. There are direct allegations against accused Mohinder Nath Sofat that accused ::: Downloaded on - 15/04/2017 21:41:41 :::HCHP 11 Mohinder Nath Sofat directly took active part and used defamatory statement against complainant. It is well settled .
law that learned Trial Court can implead a person as co-
accused at any stage of case if learned Trial Court comes to conclusion that other persons have also committed criminal offence.
15. Submission of learned Advocate appearing on of behalf of petitioner that complainant Dr.Rajiv Bindal has also filed civil suit for damage to the tune of Rs.fifteen lacs and rt parallel civil and criminal proceedings relating to similar facts cannot continue is rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that suit for damage to the tune of Rs.fifteen lacs and criminal complaint under Section 500 IPC are two distinct civil and criminal offence. It is well settled law that harm to reputation of person defamed is common ground in both civil and criminal proceedings and truth of imputation is defence in both civil and criminal proceedings. It is well settled law that damage is granted in civil defamation proceedings and conviction and sentence of imprisonment are granted in criminal proceedings of defamation. It is well settled law that defamation is of two kinds. (1) Libel (2) Slander. It is well settled law that libel is by way of (1) Writing (2) Printing (3) Picutres (4) Effigies. It is well settled law that slander ::: Downloaded on - 15/04/2017 21:41:41 :::HCHP 12 defamation is always made by spoken words. See AIR 1967 Calcutta (DB) 178 Ashok Kumar Sarkar vs. Radha Kanto Pandey and .
others. It is well settled law that if two remedies are distinct then notwithstanding the fact that allegations of facts into two remedies are substantially similar then two parallel civil and criminal proceedings would be continued. See AIR 1961 SC 578 State of Bombay vs. S.L. Apte and another.
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16. Submission of learned Advocate appearing on behalf of petitioner that accused is innocent person and he has been falsely implicated in present case and on this ground rt petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Judicial findings whether accused is guilty or not cannot be given at this summoning stage of case. Judicial findings about absence of mensrea or actus reus would be given by learned Trial Court after giving due opportunities to both parties to lead evidence in support of their case. Accused would be at liberty to take all defences available to him as provided in exception first to tenth exception provided under Section 499 of Indian Penal Code during trial of case. It is held that at the stage of summoning the accused the Magistrate has to simply see whether primafacie there are sufficient grounds to proceed against accused or not. It is held that at the stage of summoning the accused Magistrate is not under legal obligation to ::: Downloaded on - 15/04/2017 21:41:41 :::HCHP 13 meticulously discuss merits and demerits of case. In view of above stated facts point No.1 is answered in negative.
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Point No. 2 (Final Order)
17. In view of findings upon point No. 1 above petition is dismissed. Parties are directed to appear before learned Trial Court on 20.12.2016. Observations made in this order will not effect merits of case in any manner and will strictly of confine for disposal of petition. File of learned Trial Court and learned Additional Sessions Judge-I Solan District Solan H.P. be rt sent back forthwith along with certify copy of order. Learned Trial Court will dispose of petition expeditiously within three months because private criminal complaint is pending since 2012 and requires expeditious disposal. Cr.MMO No. 10 of 2016 is disposed of. Pending miscellaneous application(s) if any also stands disposed of.
December 07,2016 (P.S. Rana)
ms. Judge
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