Delhi High Court
S.P. Satsangi vs Krishna Kumar Satsangi on 20 April, 2007
Equivalent citations: II(2007)DMC425
Author: A.K. Sikri
Bench: A.K. Sikri
JUDGMENT A.K. Sikri, J.
1. By means of this petition, the petitioner seeks quashing of the summoning orders passed by the Metropolitan Magistrate on 5.2.2000. These summoning orders are passed in the complaint filed by the respondent (hereinafter referred to as 'the complainant'). Complainant is the wife of the petitioner. Petitioner and the complainant were married on 23.1.1983. They lived together for few years and three female children, namely, Kanika (aged 161/2 years), Anupama Satsangi (aged 15 years) and Vasundha Satsangi (aged 10 years), were born out of this wedlock. It seems that the parties could not and did not live together peacefully. Some time in the year 1994, the petitioner herein was separated from the complainant. Thereafter, on 27.11.1997, the petitioner filed a petition for divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act'). In this petition, in order to prove the cruelty, the petitioner also filed, as Annexure-A, i.e. tape-recorded conversation. It is alleged that this annexure contains reproduction of the conversation between the petitioner and the complainant which was recorded by the petitioner. The case of the petitioner is that this conversation would amply demonstrate that the complainant was treating the petitioner with cruelty.
2. It may be mentioned that the complainant has vehemently denied the alleged telephonic conversation as contained in the said Annexure-A. However, on the basis of some of the utterances on the part of the petitioner in the said conversation, the complainant has filed complaints against the petitioner under Sections 499 and 500 of the Indian Penal Code alleging that the said utterances were defamatory in nature. To say it precisely, the complainant is feeling offended by the following imputation, which was uttered by the petitioner, in the purported tape-recorded conversation. He had said "Randi, Kotha kon chala raha hai" (English translation, 'You prostitute, who is running the brothel').
3. The complainant has stated that she is a doctor by profession and is a reputed gynaecologist. The aforesaid imputation against her made by the petitioner is extremely derogatory to her image and reputation. It is for this reason that the complainant submits that the petitioner be punished for committing offence of defamation in accordance with law. As aforesaid, summoning orders have been passed in this complaint.
4. The grounds which are taken to quash the proceedings and which were argued by learned Counsel for the petitioner may be summarised in the following manner:
(i) the tape-recorded conversation and the transcription thereof, in the form of Annexure-A to the petition filed under the Act, have been filed in support of the petitioner's case alleging cruelty against the complainant in those proceedings. It is the submission of learned Counsel for the petitioner that the tape-recorded conversation is one of the pieces of evidence which has been filed to prove the cruelty. This move of the petitioner is in good faith and the evidence is given to an authorised person, namely, the Court of law, who has lawful authority with respect to the subject matter of accusation;
(ii) the entire tape-recorded conversation, transcript whereof runs into 22 pages, would disclose that there is no defamation which has been caused to the complainant. The Court should read the entire transcription and the conversation between the parties and in that context only the sentence in question, which is attributed as defamatory, should be read and when the transcription is read in this manner it would clearly show that there is no defamation;
(iii) in any case the evidence produced before the matrimonial Court, in the form of Annexure-A, is not a 'publication' in the eyes of law and has been made to a lawful authority in good faith. There is no third party involved and mere submission of this transcription of the tape-recorded conversation as an evidence would not amount to publication; and
(iv) on the one hand, the complainant denies such conversation and on the other hand, she wants to take advantage of the same very conversation and has filed the case of defamation against the petitioner. The submission is that it is not open to the complainant to blow hot and cold when it comes to the proceedings under the Act. She categorically states that there was no such telephonic conversation and Annexure-A is not accepted and at the same time on the basis of the said Annexure itself she has filed the complaint case, which according to the petitioner is not permissible.
5. On the basis of these arguments, it is contended that case for defamation is not made out and summoning order be quashed. Learned Counsel for the petitioner also referred to the judgment of this Court in Dr. P. Sharma v. P.S. Popli and Anr. , and also that of the Supreme Court in the case of Rajendra Kumar Sitaratn Pande and Ors. v. Uttam and Anr. I (1999) CCR 82 (SC) : 1991 AD (SC) 609.
6. Let us first scan through these judgments to decipher the law laid down therein. In Dr. P. Sharma (supra), the complainant had filed a complaint against the petitioner under Sections 420/336/338, IPC and the petitioner was summoned as an accused in the said case. Against those summoning orders petitioner had gone up to the Supreme Court and proceedings were ordered to be quashed by the Supreme Court. In the SLP filed in the Supreme Court, in which the complaint proceedings were quashed, the petitioner had pleaded that complaint filed by the complainant was wholly mischievous and intended to blackmail him. On these averments contained in the SLP, the complainant filed a complaint under Section 500, IPC alleging that these were defamatory allegations and amounted to an offence under Section 499 and punishable under Section 500, IPC. The question was as to whether on the basis of such utterances made in the SLP by the petitioner against the complainant, the complainant was within his right to file a complaint under Section 500, IPC. This Court in the said judgment held that apparently the imputation was preferred in good faith by the petitioner to get the order of summoning quashed and it could not be said to have been made with the intention or knowledge to cause harm to the reputation of the complainant. It was also observed that the allegations were made before the Supreme Court, which undoubtedly had authority over the subject matter in dispute, and, therefore, the case was covered under Exception 8 provided to Section 499, IPC and no offence was made out and the complaint under Section 500 filed by the respondent was quashed.
Rajendra Kumar (supra) was a case where the official had made complaint to the Treasury Officer, Amravati, alleging that the complainant had come to office in a drunken state and abused the Treasury Officer, Additional Treasury Officer and the Collector and circulated in the office in the filthy language. These accusations made in the complaint were treated by the complainant as defamatory and on the basis of this, alleging it to be a false imputation, the complainant had filed a complaint under Section 500, IPC contending that the accused persons had committed the offence of defamation. The Supreme Court pointed out that the question for consideration was whether the allegations in the complaint, read out with report of the Magistrate, make out the offence under Section 500, IPC or not. In that case, on the basis of complaint of the accused persons, a departmental inquiry had been initiated and the complainant was found guilty. In these circumstances, the Supreme Court held that the fact that the accused persons had made a report to the superior officer of the complainant alleging that he had abused the Treasury Officer in a drunken state, which was the gravamen of the complaint, would be covered by Exception 8 to Section 499 of the IPC as the complaint was made to a lawful authority over that person with regard to the subject matter of accusation.
7. When we examine the present case keeping in view the aforesaid legal position, it can safely be concluded that a case of defamation is not made out at this stage. Few things which need to be considered and which are not disputed need to be highlighted. The petitioner has filed a petition for divorce. He is seeking decree of divorce on the ground of cruelty. In support of this allegation he has filed the tape-recorded conversation between him and the complainant, transcription whereof is filed as Annexure-A. Copy of this transcription is filed on record and I have gone through the same. When one reads the entire conversation it would be found that there were heated exchange of words between the parties. The complainant appeared to have been aggrieved against the conduct of the petitioner and in the entire conversation she has abused the petitioner for his behavior which had led to the neglect of the complainant and the parties' children. In the process she had made various utterances which are in filthy and abusive language. In this heated moment the petitioner has also uttered the aforesaid sentence. That apart, the annexure is filed in the Court of law, which is seized of the matter. It is yet to be decided as to whether the tape-recorded conversation is in fact between the parties and whether the claim of the petitioner that the complainant was treating the petitioner with cruelty is sustainable or not. The Annexure is filed with the Court of law which undoubtedly has the authority over the subject matter in dispute. Therefore, at this stage, it cannot be said that the intention was to defame the complainant. Matter is still pending before the matrimonial Court, which is yet to take a view in the matter. It would be significant to mention here that the complainant has otherwise denied the entire conversation. If this conversation is denied would it be open to the complainant to rely upon the same conversation and file the case of defamation? I am of the view that filing of a case of this nature at this stage would be premature. In a matter like this it would be prudent to first wait for the outcome of the proceedings filed by the petitioner under Section 13 of the Act, as evidence is yet to be led.
8. During the course of arguments it was informed that the case is at the stage of petitioner's evidence. It is only after the judgment in the said case is rendered, the matrimonial Court gives its findings in the case and in the process decides about the admissibility or otherwise of Annexure-A and depending upon the said outcome, it would be known whether there is any cause of action for the complainant to filed such a complaint under Section 500, IPC.
9. I may, at this stage, take note of some of the arguments which were addressed by learned Counsel for the complainant. In the first instance, it was submitted that communication between the husband and wife is not privileged and provisions of Section 122 of the Indian Evidence Act, 1872, would not apply in a case like this inasmuch as exceptions to Section 499, IPC must be regarded as exhaustive as to the cases in which they purport to cover and recourse cannot be had to English Common Law to add new grounds of exception to those contained in the Statute and for this strong reliance was placed on the judgment of the Supreme Court in the case of M.C. Verghese v. T.J. Ponnan and Anr. . This judgment would not be of any avail to the complainant as this is not the issue involved or even raised by the petitioner, namely, the petitioner has not tried to take umbrage under Section 122 of the Indian Evidence Act, 1872, and has stated that whatever was uttered between him and the complainant is a privileged communication. On the contrary, the petitioner has himself relied upon this conversation insofar as proceedings under the Hindu Marriage Act are concerned.
10. Learned Counsel for the complainant also referred to the judgment of the Punjab and Haryana High Court in the case of Balwant Singh v. Balwinder Kaur 1994 (2) Recent CR (P&H) 294. That was a case where the husband had written letters calling his wife a vagabond, characterless and having intimacy with another person. This was treated as defamatory. But what is to be seen is that in addition to writing these letters to his wife the husband had sent photocopies of these letters to relations of wife as well which amounted to publication of the said letters containing defamatory imputations. Another case on which the complainant's Counsel placed reliance was the judgment of Bombay High Court in Pravinchand Jagjivandas Gandhi and Anr. v. Ibrahim Mohammad Merchant and Anr. 1987 Crl.L.J. 1795. That was a case where, during the proceedings in the Court room, defamatory words were uttered by the accused person. The Court held that publication of defamatory words in the proceedings in Court room or outside Courtroom would not make any difference so long as such defamatory words are intended to harm reputation. What is to be noted is that this observation was made by the Court in the facts of that case where such defamatory words or defamatory utterances were heard and listened by people in the Court, which as per the Court amounted to 'publication'. In the present case, apart from filing Annexure-A on the judicial record there is not even an indication by the complainant that the petitioner has circulated the tape-recorded version to any other person, relations, friends, etc. In any case the issue of 'publication' is not to be gone into as the complaint itself is premature.
11. I am, thus, of the considered view that this was not the stage where the complainant could file a complaint under Section 500, IPC and the Court could take cognizance thereof. The summoning order is, accordingly, quashed and the complaint filed by the complainant is dismissed as premature. However, liberty is given to the complainant to file such a complaint depending upon the outcome of the proceedings in the matrimonial case, if occasion arises, for filing of such a complaint.
12. This petition is allowed with the aforesaid observations. No costs.