Delhi District Court
Complainant vs . on 27 October, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
WEST, TIS HAZARI COURTS,
NEW DELHI
Presided over by- Devanshu Sajlan, DJS
Ct. Case No. -: 2000/2016
Unique Case ID -: DLWT020011222010
No.
Police Station -: Paschim Vihar (East)
Section(s) -: 500 IPC
In the matter of -
ASHOK DRALL
.... Complainant
VS.
KANTA CHOUDHARY
.... Accused
1. Name of Complainant : Sh. Ashok Drall
2. Name of Accused : Ms. Kanta Choudhary
Offence complained of or
3. : 500 IPC
proved
4. Plea of Accused : Not Guilty
5. Date of Filing of case : 15.01.2008
6. Date of Reserving Order : 11.10.2022
7. Date of Pronouncement : 27.10.2022
8. Final Order : Convicted
Argued by -: Complainant in person.
Sh. P. K. Sharma, Ld. Counsel for the accused.
Digitally signed
DEVANSH by DEVANSHU
SAJLAN
U SAJLAN Date: 2022.10.27
15:14:06 +05'30'
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 1 of 28
BRIEF STATEMENT OF REASONS FOR THE DECISION-:
A. FACTUAL MATRIX:
Reputation, reputation, reputation! Oh, I have lost my
reputation! I have lost the immortal part of myself, and what
remains is bestial.
- William Shakespeare
1. The aforesaid lines, from William Shakespeare's famous play
"Othello", spoken by Cassio in a state of deep anguish, would
resonate with any person whose reputation has been lowered in the
eyes of the society.
2. The complainant in the present case, who is an advocate by
profession, claims to be similarly anguished due to the harm caused
to his reputation by the actions of the accused. Briefly stated, the
case of the complainant is that the accused filed a complaint against
the complainant before Bar Council of Delhi on 23.03.2007 (bearing
no. 17/2007) levelling serious and defamatory allegations against
him. The allegation which the complainant has alleged to be deeply
defamatory is reproduced hereinbelow:
Ashok Drall ne kaha ki mere to judges se bhi achhe sambandh
hai main to murder case bhi lakh do lakh me nipatwa deta hu yeh
to mamuli si bat hai. Mai Ashok Drall vai Neelam ki bataon mai
aa gayi.
3. The complainant has submitted that the said complaint, made
to the Bar Council of Delhi by the accused, is duly signed and sworn
by her. It has been submitted that the accused, by way of the
aforesaid allegation, has clearly imputed that the complainant acts as
a broker between judges and litigants for the purpose of facilitating
bribery. It has been further submitted that the accused has imputed
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 2 of 28
that the institution of justice is just a toy which can be sold and
purchased by people.
4. The complainant has further submitted that he has a good
reputation in legal fraternity and except for the present libel made
by the accused against him, there is no complaint or allegation
against the complainant in relation to his professional conduct. It
has been further submitted that the complaint of the accused was
dismissed by the Bar Council of Delhi on 30.05.2008 on the ground
that no prima-facie case of misconduct was found against the
complainant. Based on the same, it has been contended that the
allegation of the accused was made without any due care and
caution in order to harm the reputation of the complainant. It has
been further submitted that the defamatory allegation made by the
accused was made with an intention to lower the complainant's
reputation in the estimation of his fellowmen and judicial set-up,
and that due to the defamatory allegations of the accused, the
honesty and integrity of the complainant in the society and
profession has been impeached.
B. PRE-SUMMONING EVIDENCE & NOTICE
5. Pre-summoning evidence was led by the complainant and on
finding a prima-facie case, the accused was summoned to face trial
vide order dated 19.09.2011. Thereafter, the accused was served
with the notice of accusation under Section 251, Code of Criminal
Procedure, 1973 (hereinafter "CrPC") on 19.07.2013, to which the
accused pleaded not guilty and claimed trial.
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 3 of 28
C. COMPLAINANT EVIDENCE:
6. During the trial, complainant led the following oral and
documentary evidence against the accused to prove his case
beyond reasonable doubt-:
ORAL EVIDENCE
Sh. Virender Sirohi (Supervisor, BCD
CW-1 :
Office)
Sh. Hansraj (Ahlmad from the Court of
CW-2 :
Ld. Civil Judge-20, Central, THC, Delhi)
CW-3 : Sh. Ashok Drall (complainant)
DOCUMENTARY EVIDENCE
Ex. CW1/A Complaint dated 23.03.2007 filed by the
:
(OSR) accused before Bar Council of Delhi
Ex. CW1/B
: Copy of affidavit
(OSR)
Ex. CW1/C
: Copy of notice issued by BCD
(OSR)
Copy of order dated 30.05.2008 vide
Ex. CW1/D
: which complaint of the accused was
(OSR)
dismissed by BCD
Copy of plaint in the civil suit titled as
Ex. CW2/A :
Ashok Drall vs. Kanta Chaudhary
Copy of written statement in the civil suit
Ex. CW2/B : titled as Ashok Drall vs. Kanta
Chaudhary
D. STATEMENT OF ACCUSED:
7. Thereafter, before the start of defence evidence, in order to
allow the accused to personally explain the incriminating
circumstances appearing in evidence against her, the statement of
accused was recorded without oath under Section 281 read with
Section 313 CrPC. In reply, the accused denied all allegations and
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 4 of 28
stated that she wishes to examine herself in her defense.
E. DEFENSE EVIDENCE:
8. The accused led the following oral and documentary
evidence in her defense evidence-:
ORAL EVIDENCE
DW-1 : Ms. Kanta Chaudhary (Accused)
9. I have heard both sides at length. I have also given my
thoughtful consideration to the material appearing on record.
Learned counsel for the accused has raised the following
contentions in the defense of the accused:
(i) A complaint made to a lawful authority (Bar Council in this
case) does not amount to publication of statement/ imputation;
(ii) The accused's complaint does not include any defamatory
imputation since it is based on truth;
(iii) The present case is covered within the scope of eighth
exception to section 499;
(iv) The undersigned court does not have territorial jurisdiction to
entertain the present complaint;
(v) The civil property dispute between the complainant and the
accused has already been decreed in favour of the accused by the
civil court, and the judgment of the civil court is binding on this
court.
10. The aforesaid contentions and ingredients of the offense are
discussed next.
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 5 of 28
F. INGREDIENTS OF THE OFFENCE:
11. The offence of defamation is defined under section 499 of the
IPC, which provides as follows:
Whoever, by words either spoken or intended to be read, or by
signs 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 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.
12. Punishment for the offence of defamation is provided under
Section 500 IPC as follows:
500. 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.
13. The sine-qua-non of the offence of defamation lies in one
word - "Reputation". The term reputation was defined in the case
titled as Kiran Bedi v. Committee of Inquiry, (1989) 1 SCC 494, by
the Hon'ble Apex Court of India in the following manner:
It is stated in the definition Person, 70 C.J.S.p. 688 note 66 that
legally the term "person" includes not only the physical body
and members, but also every bodily sense and personal attribute,
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 6 of 28
among which is the reputation a man has acquired. Blackstone in
his Commentaries classifies and distinguishes those fights which
are annexed to the person, jura personarum, and acquired fights
in external objects, jura rerum; and in the former he includes
personal security, which consists in a person's legal and
uninterrupted enjoyment of his life, his limbs, his body, his
health, and his reputation. And he makes the corresponding
classification of remedies. The idea expressed is that a man's
reputation is a part of himself, as his body and limbs are,
and reputation is a sort of fight to enjoy the goods opinion of
others, and it is capable of growth and real existence, as an
arm or leg. Reputation is, therefore, a personal fight, and the
right to reputation is put among those absolute personal
fights equal in dignity and importance to security from
violence. According to Chancellor Kent, "as a part of the rights
of personal security, the preservation of every person's good
name from the vile arts of detraction is justly included. The laws
of the ancients, no less than those of modern nations, made
private reputation one of the objects of their protection.
14. Further, in the case titled as Vishwanath Agrawal v. Sarla
Vishwanath Agrawal, (2012) 7 SCC 288, it was observed that:
Reputation is not only the salt of life, but also the purest
treasure and the most precious perfume of life. It is
extremely delicate and a cherished value this side of the
grave. It is a revenue generator for the present as well as for
the posterity.
15. The significance of reputation has also been emphasized by
the Hon'ble Supreme Court of India in Subramanian Swamy v.
Union of India, (2016) 7 SCC 221, in the following words:
34. The reference to international covenants has a definitive
purpose. They reflect the purpose and concern and recognise
reputation as an inseparable right of an individual. They
juxtapose the right to freedom of speech and expression and the
right of reputation thereby accepting restrictions, albeit as per
law and necessity. That apart, they explicate that the
individual honour and reputation is of great value to human
existence being attached to dignity and all constitute an
inalienable part of a complete human being. To put it
differently, sans these values, no person or individual can
conceive the idea of a real person, for absence of these
aspects in life makes a person a non-person and an
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 7 of 28
individual to be an entity only in existence perceived without
individuality.
195. . . . Right to free speech cannot mean that a citizen can
defame the other. Protection of reputation is a fundamental
right. It is also a human right. Cumulatively it serves the
social interest. Thus, we are unable to accept that provisions
relating to criminal defamation are not saved by doctrine of
proportionality because it determines a limit which is not
impermissible within the criterion of reasonable restriction. It
has been held in D.C. Saxena v. Chief Justice of India [D.C.
Saxena v. Chief Justice of India, (1996) 5 SCC 216], though in a
different context, that if maintenance of democracy is the
foundation for free speech, society equally is entitled to regulate
freedom of speech or expression by democratic action. The
reason is obvious viz. that society accepts free speech and
expression and also puts limits on the right of the majority.
Interest of the people involved in the acts of expression should
be looked at not only from the perspective of the speaker but
also the place at which he speaks, the scenario, the audience, the
reaction of the publication, the purpose of the speech and the
place and the forum in which the citizen exercises his freedom of
speech and expression. The Court had further observed that the
State has legitimate interest, therefore, to regulate the freedom of
speech and expression which liberty represents the limits of the
duty of restraint on speech or expression not to utter defamatory
or libellous speech or expression. There is a correlative duty not
to interfere with the liberty of others. Each is entitled to dignity
of person and of reputation. Nobody has a right to denigrate
others' right to person or reputation. (Emphasis Added)
16. Therefore, as observed by the Hon'ble Supreme Court,
protection of reputation has been held to be a fundamental right, and
that the same is universally recognized to be an integral and
important aspect of dignity of every individual. The right to
preservation of one's reputation is acknowledged as a right in rem, a
right good against all the world (see Shobhana Bhartia & Ors v.
NCT of Delhi, reported in AD (CR) (2007) 5 229).
17. Moving on, the ingredients of the offense of defamation were
discussed by the Hon'ble Supreme Court of India in Subramanian
Swamy (supra):
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 8 of 28
168. For the aforesaid purpose, it is imperative to analyse in
detail what constitutes the offence of "defamation" as provided
under Section 499 IPC. To constitute the offence, there has to
be imputation and it must have been made in the manner as
provided in the provision with the intention of causing harm
or having reason to believe that such imputation will harm
the reputation of the person about whom it is made. Causing
harm to the reputation of a person is the basis on which the
offence is founded and mens rea is a condition precedent to
constitute the said offence. The complainant has to show that
the accused had intended or known or had reason to believe
that the imputation made by him would harm the reputation
of the complainant. The criminal offence emphasises on the
intention or harm. Section 44 IPC defines "injury". It denotes
any harm whatever illegally caused to any person, in body,
mind, reputation or property. Thus, the word "injury"
encapsulates harm caused to the reputation of any person. It also
takes into account the harm caused to a person's body and mind.
Section 499 provides for harm caused to the reputation of a
person, that is, the complainant.
18. Further, in Google India (P) Ltd. v. Visaka Industries, (2020)
4 SCC 162, it was held that:
105. Under the said provision, the lawgiver has made the making
or publishing of any imputation with a requisite intention or
knowledge or reason to believe, as provided therein, that the
imputation will harm the reputation of any person, the essential
ingredients of the offence of defamation. What is the meaning to
be attached to the words "making of an imputation" and
"publishing of an imputation"? This question has been set out
with clarity in a recent judgment which is reported in Mohd.
Abdulla Khan v. Prakash K. [Mohd. Abdulla Khan v. Prakash
K., (2018) 1 SCC 615 : (2018) 1 SCC (Cri) 255] It was held as
follows : (SCC p. 620, para 10)
"10. An analysis of the above reveals that to constitute an
offence of defamation it requires a person to make some
imputation concerning any other person;
(i) Such imputation must be made either
(a) With intention, or
(b) Knowledge, or
(c) Having a reason to believe
that such an imputation will harm the reputation of the
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 9 of 28
person against whom the imputation is made.
(ii) Imputation could be, by
(a) Words, either spoken or written, or
(b) By making signs, or
(c) Visible representations
(iii) Imputation could be either made or published.
The difference between making of an imputation and publishing
the same is:
If 'X' tells 'Y' that 'Y' is a criminal -- 'X' makes an
imputation. If 'X' tells 'Z' that 'Y' is a criminal -- 'X' publishes
the imputation.
The essence of publication in the context of Section 499 is the
communication of defamatory imputation to persons other than
the persons against whom the imputation is made. [Khima Nand
v. Emperor, 1936 SCC OnLine All 307 : 1937 Cri LJ 806; Amar
Singh v. K.S. Badalia, 1964 SCC OnLine Pat 186 : (1965) 2 Cri
LJ 693] "
107. In the light of this discussion, we may only reiterate that the
criminal offence of defamation under Section 499 IPC is
committed when a person makes a defamatory imputation
which, as explained in Mohd. Abdulla Khan [Mohd. Abdulla
Khan v. Prakash K., (2018) 1 SCC 615 : (2018) 1 SCC (Cri)
255], would consist of the imputation being conveyed to the
person about whom the imputation is made. A publication, on
the other hand, is made when the imputation is communicated to
persons other than the persons about whom the defamatory
imputation is conveyed. A person, who makes the defamatory
imputation, could also publish the imputation and thus could be
the maker and the publisher of a defamatory imputation. On the
other hand, a person may be liable though he may not have made
the statement but he publishes it.
19. In light of the aforesaid decisions, the following two-fold
ingredients of the offence of defamation can be culled out:
(i) An imputation must be made or published by the accused
concerning the complainant.
(ii) Intention to cause harm to the reputation of the
Complainant: Such imputation must be made/ published either (a)
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 10 of 28
with intention, or (b) with knowledge, or (c) having a reason to
believe, that such an imputation will harm the reputation of the
person against whom the imputation is made. It is further pertinent
to note that the parameter to judge as to whether a particular
statement or imputation has harmed the reputation of a person or
not, as encoded in Explanation - 4 to Section 499 IPC, is whether
the imputation, directly or indirectly, in the estimation of others,
lowers the character or credit of that person or causes it to be
believed that the person is in a loathsome or disgraceful state.
I. PUBLICATION - Complaint made to lawful authority
amounts to publication
20. The first question that needs determination is whether an
imputation made by the accused has been published. The allegation
of the complainant is that the accused has made defamatory
imputations in her complaint filed with the Bar Council of Delhi.
21. The accused has not denied making the complaint to the Bar
Council of Delhi. In her examination-in-chief during defense
evidence, the accused has specifically deposed that she filed the said
complaint with the Bar Council of Delhi. Further, in her cross-
examination, the accused has admitted that she had drafted the said
complaint herself and that the said complaint was accompanied with
an affidavit sworn by her. The copy of the said complaint has been
exhibited in evidence as Ex. CW1/A (OSR) and the copy of the
affidavit is Ex. CW1/B (OSR). Accordingly, filing of the complaint
with Bar Council of Delhi is not in dispute.
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 11 of 28
22. It has been contended by the complainant that a complaint
filed before the Bar Council of Delhi amounts to publication
whereas learned counsel for the accused has contended otherwise. I
humbly agree with the contention of the complainant. The scope of
'publication' in criminal law is broader than civil law (see Sanjay
Mishra v. NCT of Delhi, 2012 SCCOnLine Del 1779). Further, it is
a settled position of law that a publication to an institution which
has authority over the person against whom the imputations are
made would amount to publication. In this regard, reliance can be
placed upon the decision in Madhuri Mukund Chitnis v. Mukund
Martand Chitnis, 1990 SCC OnLine Bom 410, in which the
Hon'ble High Court of Bombay has held that:
13...In the present case the imputations are made in a
proceeding which is filed in Court and therefore publication is
definitely clear. Even a publication to an authority over the
person against whom the imputations are made must be held
to be sufficient publication which falls within the purview of
the said Section 499 of the Penal Code, 1860.
23. Similarly, it has been held by the Hon'ble Kerala High Court
in Prabhakaran v. Gangadharan, 2006 SCC OnLine Ker 302 that
once a statement has been filed in a court of law, that statement can
be taken as published:
7. Admittedly, the complainant was not a party to the
proceedings in O.S. No. 481 of 2000. It is alleged in the written
statement that the father of the first petitioner trusting the
plaintiff-his sister and her husband, the complainant who was a
practicing lawyer, affixed his signature wherever he was asked
to sign which was misused by the complainant for creating
materials to appropriate the plaint schedule properties. It can be
seen that the complainant never conducted any case as alleged in
the written statement filed in O.S. No. 481 of 2000. Annexue C
complaint would show that the imputation now made against the
complainant is susceptible to harm his reputation. The stand now
taken by the petitioners is that the statements contained in the
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 12 of 28
written statement can be justified by taking a defence as
contemplated under the exceptions to S. 499 I.P.C. Once a
statement has been filed in a court of law, that statement can
be taken as published and if such a statement amounts to per
se defamatory, it is the duty of the accused to establish that
they are justified in making such a statement under any of
the exceptions to S. 499 I.P.C...
24. Lastly, the Hon'ble Madras High Court, in Thangavelu
Chettiar v. Ponnammal, 1965 SCC OnLine Mad 248, has also held
that:
4. ... But in this case, the defamatory matter contained in the
plaint was admittedly signed and filed by the petitioner.
There can be no doubt that there was publication of the
defamatory matter.
25. Therefore, it is evident that publication includes pleadings,
complaints, and affidavits made before a lawful authority.
Therefore, the first ingredient (i.e., making/ publication of an
imputation) of the offense of defamation stands proved in the
present case.
II. INTENTION/ KNOWLEDGE TO CAUSE HARM TO
REPUTATION
26. Once publication of an imputation has been proved, the next
ingredient which requires satisfaction is that defamatory imputation
was made by the accused intending to harm or knowing or having
reason to believe that such imputation will harm the reputation of
the complainant. The said ingredient is required to be read together
with Explanation 4 to Section 499 IPC, which requires that the
imputation, directly or indirectly, in the estimation of others, lowers
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 13 of 28
the character or credit of that person or causes it to be believed that
the person is in a loathsome or disgraceful state. Therefore, the onus
on the complainant is to prove that (i) the accused had an intention/
knowledge/ reason to believe to cause harm to the reputation of the
complainant; and (ii) the imputation made by the accused actually
caused harm to the reputation of the complainant.
II.1 In case of a per se defamatory statement, burden to prove
harm to reputation stands discharged.
27. It is pertinent to note that the standard of proof is different in
the case of a per se defamatory imputation as opposed to any other
imputation. The said distinction has been succinctly explained by
the Hon'ble Supreme Court of India in the case of John Thomas v.
K. Jagadeesan (Dr), (2001) 6 SCC 30:
10. Shri Sivasubramaniam, learned Senior 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 libellous. 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 the 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.
28. Therefore, once a statement is held to be per se defamatory,
the complainant is not required to prove loss to his reputation
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 14 of 28
separately and he/ she stands discharged of the said burden. This
position of law was first laid down by the Hon'ble Allahabad High
Court way back in 1887 in the case of Queen Empress v. McCarthy
(ILR 9 All 420):
The explanation does not apply where the words used and
forming 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 IV of Sec. 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 Sec. 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.
29. The aforesaid position of law has also been re-iterated by the
Hon'ble Bombay High Court in the case of Sopullo Datta Naik
Dessai v. Yeshwant Govind Dessai, 2009 SCC OnLine Bom 1400,
wherein the imputation made by the accused referred to the
complainant as a person who does things under influence of liquor
and as a person who was locked up because of "goondagiri" during
a drama festival. These imputations were held to be per se or
distinctly defamatory and the complainant was discharged of the
burden to prove loss/ harm to reputation. Similarly, even the
Hon'ble Gujarat High Court has agreed with the position of law that
in case of a per se defamatory statement, harm to reputation is not
required to be proved (see Rohini Singh v. State of Gujarat, 2018
SCC OnLine Guj 209).
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 15 of 28
II.2 In case of a per se defamatory statement, burden to prove
intention/ knowledge to cause harm stands discharged.
30. In addition to the aforesaid, it is pertinent to note that in case
of a per se defamatory statement, necessary mens-rea/ knowledge to
cause harm is also required to be presumed. The said position of law
has been specifically laid down by the Hon'ble Gujarat High Court
in the case of Narottamdas L. Shah v. Patel Maganbhai Revabhai,
1984 SCC OnLine Guj 100:
31. If the imputation is defamatory per se, necessary mens
rea will be presumed. No resultant harm may be proved, if
the expression itself is defamatory per se. The maker of the
statement must know that it will harm the reputation of one
concerning whom the same is made. Explanation 1 includes
even a dead person. We are not concerned with this explanation.
Explanation 2 embraces imputation concerning a company or
association or collection of persons as such. The gist of the
offence is dissemination of harmful imputation concerning a
person. It is not necessary to refer to other explanations for our
purposes.
31. Therefore, the twin-fold burden upon the complainant (i.e., to
prove that (i) the accused had necessary intention to cause harm or
had knowledge or reason to believe that such imputation will harm
the reputation of the complainant; and (ii) harm to reputation was
actually caused due to the imputation made by the accused) stands
discharged in case the imputation is held to be defamatory per se.
II.3 Parameters of a per se defamatory statement
32. The definition of the phrase "defamatory per se" has been
explained in the case of Rohini Singh (supra). In the said case,
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 16 of 28
Hon'ble Justice, J.B. Pardiwala, Single Judge, Hon'ble Gujarat High
Court, as he then was, has relied upon the book 'Clerk and Lindsell
on Torts (Tenth Edition)' to define the said phrase:
12.2 The meaning of the words "defamatory per se" and their
definition, scope and effect have been copiously discussed in
Clerk and Lindsell on Torts (Tenth Edition). At page 711 of the
said book it is stated that:
Language is defamatory on the face of it, either when the
defamatory meaning is the only possible meaning, or when it
is the only natural and obvious meaning.
33. Therefore, it has to be seen whether the defamatory meaning
is the only possible meaning from the imputation made by the
accused. At the cost of repetition, the statement of the accused is
reproduced hereunder:
Ashok Drall ne kaha ki mere to judges se bhi achhe sambandh
hai main to murder case bhi lakh do lakh me nipatwa deta hu yeh
to mamuli si bat hai. Mai Ashok Drall vai Neelam ki bataon mai
aa gayi.
34. The complainant has denied ever making such a claim to the
accused. He has contended that the said claim has been imputed to
him with an ill-intention to project him as a corrupt and venal
person. I am of the considered view that the only possible meaning
of the said statement is that the complainant has been projected as a
person who claims to be a broker between judges and litigants for
the purpose of facilitating bribery. There is no other meaning that
can be attributed to the said statement. This imputation undoubtedly
is calculated to lower in the estimation of others the ethical
character of the complainant as a lawyer. Questioning the honesty of
a person is the worst form of accusation and the same can have a
serious detrimental effect on the reputation of a person. It would
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 17 of 28
definitely harm the reputation of any person, and especially an
advocate, in the estimation of the right-thinking members of the
society. There is no doubt that such a statement is per se
defamatory.
35. Since the statement of the complainant is per se defamatory,
the complainant is discharged of the burden to prove mens rea and
harm to reputation. Accordingly, the second ingredient also stands
proved in the present case.
III. Defence of the accused - Whether the present case is
covered within the scope of Exception 8 to section 499 IPC?
36. Since both the ingredients of the offense of defamation have
been proved, the only means by which the accused can escape
conviction is by proving that her case is covered within any of the
exceptions to section 499 IPC. Learned counsel for the accused has
taken the defence that the present case is covered within the scope
of Exception 8 to section 499 IPC. The said exception is reproduced
hereunder:
31. Eighth Exception.--Accusation preferred in good faith
to authorised 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.
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-A is within this exception.
37. It has been contended that the Bar Council of Delhi has
lawful authority over the complainant and since a complaint was
filed to the said lawful authority by the accused, the accused enjoys
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 18 of 28
complete immunity in the present case in terms of the eighth
exception since a statement made to a person, who has lawful
authority over the person against whom defamatory statement has
been made, enjoys absolute privilege.
38. The parameters of the eighth exception were explained by the
Hon'ble Supreme Court of India in the case of Subramanian
Swamy v. Union of India, (2016) 7 SCC 221:
188. Again in M.C. Verghese v. T.J. Poonan [M.C. Verghese v.
T.J. Poonan, (1969) 1 SCC 37], it has been ruled that a person
making libellous statements in his complaint filed in court is not
absolutely protected in a criminal proceeding for defamation, for
under the Eighth Exception and the illustration to Section 499
the statements are privileged only when they are made in
good faith. . .
189. In Chaman Lal [Chaman Lal v. State of Punjab, (1970) 1
SCC 590 : 1970 SCC (Cri) 253] the Court has opined that
good faith requires care and caution and prudence in the
background of context and circumstances. The position of
the persons making the imputation will regulate the
standard of care and caution. . . In M.A. Rumugam v. Kittu
[M.A. Rumugam v. Kittu, (2009) 1 SCC 101 : (2009) 1 SCC
(Civ) 35 : (2009) 1 SCC (Cri) 245], it has been held that for the
purpose of bringing the case within the purview of the Eighth
and the Ninth Exceptions appended to Section 499 of the Penal
Code, it would be necessary for the accused to prove good
faith for the protection of the interests of the person making
it or of any other person or for the public good.
39. Further, in the case of Chaman Lal v. State of Punjab, (1970)
1 SCC 590, it was held that:
Good faith requires care and caution and prudence in the
background of context and circumstances. The position of
the persons making the imputation will regulate the
standard of care and caution. Under the Eighth Exception
statement is made by a person to another who has authority to
deal with the subject-matter of the complaint whereas the Ninth
Exception deals with the statement for the protection of the
interest of the person making it. Interest of the person has to be
real and legitimate when communication is made in protection of
the interest of the person making it.
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 19 of 28
40. Further, in the case of M.C. Verghese v. T.J. Poonan, (1969)
1 SCC 37, it was observed that:
11. In Tiruvengadda Mudali v. Tripurasundari Ammal [ILR 49
Mad 728] a Full Bench of the Madras High Court observed that
the exceptions to Section 499 IPC, must be regarded as
exhaustive as to the cases which they purport to cover and
recourse can be had to the English common law to add new
grounds of exception to those contained in the statute. A person
making libellous statements in his complaint filed in Court is
not absolutely protected in a criminal proceeding for
defamation, for under the Eighth Exception and the
illustration to Section 499 the statements are privileged only
when they are made in good faith. There is therefore authority
for the proposition that in determining the criminality of an act
under the Penal Code, 1860 the Courts will not extend the scope
of special exceptions by resorting to the rule peculiar to English
common law that the husband and wife are regarded as one.
41. Therefore, there is no absolute privilege granted to
complaints/ statements made to a lawful authority. It is required to
be proved that the said statement was made in good faith. The word
"good faith" has been defined in Section 52 of the IPC to mean:
52. 'Good faith'--Nothing is said to be done or believed in
'good faith' which is done or believed without due care and
attention.
42. Therefore, the eighth exception shall only apply when it is
proved that the complaint made to the lawful authority was made
with due care and attention.
43. The onus to prove that the statement was made with due care
and attention was on the accused. In this regard, reliance can be
placed upon M.A. Rumugam v. Kittu, (2009) 1 SCC 101:
19. For the purpose of bringing his case within the purview of
the Eighth and the Ninth Exception appended to Section 499 of
the Penal Code, it would be necessary for the appellant to prove
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 20 of 28
good faith for the protection of the interests of the person
making it or of any other person or for the public good.
20. It is now a well-settled principle of law that those who
plead exception must prove it. The burden of proof that his
action was bona fide would, thus, be on the appellant alone.
44. Similarly, in Maroti v. Ramkrushna, 2021 SCC OnLine Bom
2184, it has been held that:
10. . . In the case of Chaman Lal v. State of Punjab (supra),
specifically in the context of Eighth Exception to section 499 of
the IPC, in paragraph-8 it has been specifically held that
'good faith' has also to be established as a fact. In paragraph-
16 of the said judgment, it was held that in the facts of the said
case, the Court found that there was utter lack of 'good faith' in
the accusation...
12. In the case of Chanan Singh v. Tarak Singh (supra), the
Lahore High Court specifically dealt with a question pertaining
to Eighth Exception to section 499 of the IPC. It was held that a
complaint for defamation would be maintainable in respect of
allegations made before a public servant and that the burden of
proof would lie on the accused person to show that his case
fell within Eighth Exception to section 499 of the IPC. It was
specifically held that when an accused claims benefit of
Eighth Exception to section 499 of the IPC, it has to be
proved as a fact.
45. Therefore, the onus to prove the existence of eighth exception
is upon the accused. However, the accused has failed to establish the
same, even on the scale of preponderance of probabilities. The
accused has failed to give any reasonable explanation behind
making the concerned accusation against the complainant. It is
pertinent to mention here that in the entire cross-examination of the
complainant, not even a single suggestion has been made to the
complainant that he had indeed made the concerned claim (that he
has links with judges, and he can bribe them to get case disposed of)
to the accused. There is no cogent evidence (oral or documentary) to
show that the accused made the said imputation based on truth or
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 21 of 28
after exercising due care and attention. In order to prove that the
said claim was indeed made by the complainant, the accused could
have summoned the wife of the complainant, since the said claim
was alleged to have been made in the presence of the wife of the
complainant. However, the accused neither summoned the wife of
the complainant as a witness nor cross-examined the complainant on
this aspect.
46. Further, the complainant has proved on record the decision of
the Bar Council of Delhi, by which the complaint of the accused
was dismissed by the Bar Council of Delhi. The said decision is
exhibited as Ex. CW1/D (OSR). It is pertinent to mention that the
accused, till date, has not challenged the said order of the Bar
Council of Delhi and the said order has attained finality. Learned
counsel for the accused has contended that the said order was
exhibited in evidence by a clerk who had no authority to depose on
behalf of the Bar Council of Delhi. However, I am afraid that
objection to mode of proof of a document cannot be taken at the
stage of final arguments and is required to be taken at the stage of
exhibition of documents. No objection was raised regarding the
mode of proof of the order of the Bar Council of Delhi at the stage
of exhibition of the said order. Therefore, the said order has been
duly admitted in evidence and its exhibition in evidence cannot be
challenged now.
47. Absence of any challenge to the decision of the Bar Council
itself indicates absence of any good faith on part of the accused in
making the complaint to the Bar Council. The accused has failed to
bring any cogent evidence on record which shows that the statement
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 22 of 28
made to the Bar Council was made with due care and caution.
Therefore, I am of the humble opinion that the accused has not been
able to prove that her case is covered within the eighth exception of
section 499 IPC.
48. Learned counsel for the accused has contended that good faith
of the accused can be ascertained from the fact that the civil case
filed by the accused has been decreed in her favour by two courts of
law. However, I do not agree with the said contention. The said civil
suit pertains to the property dispute between the parties which has
no concern with the present defamation complaint. The accused may
or may not have sold a plot to the complaint. This Court is not
concerned with the property dispute in any manner and is only
concerned with the allegation made to the Bar Council of Delhi by
the accused. The accused was required to prove that the said
allegation was made in good faith (i.e., with due care and caution).
The civil property dispute between the parties has no connection
with the defamatory imputation made against the accused.
Accordingly, I am of the opinion that the fate of the civil property
dispute has no bearing on the facts of the present case. Therefore, in
absence of any cogent material that the imputation against the
accused was made in good faith, I am of the view that eighth
exception cannot be availed in the present case.
IV. Defence of the Accused - No Territorial Jurisdiction
49. Last argument of the learned counsel for the accused is that
the undersigned court does not have territorial jurisdiction in the
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 23 of 28
present case since the defamatory statement was not published
within the jurisdiction of the undersigned court. However, I am of
the considered view that this objection cannot be raised at this stage
for the reasons discussed hereinafter.
50. Firstly, it is a settled position that the objection regarding
question of territorial jurisdiction must be raised at the earliest and
at any rate, before adducing evidence/examination of witnesses in
the Court. In this regard, it is apposite to refer to the following
decision of the Division Bench of the Hon'ble Kerala High Court in
K. Ramanujan Nair v. S. Sarojini Amma, 1970 SCC OnLine Ker
79, wherein the objection to territorial jurisdiction after recording of
evidence was held to be non-maintainable:
2. . . All the prosecution witnesses were examined; and on
12th September 1969 the Magistrate discharged accused persons
2 to 5 and adjourned the case for defence evidence of the
petitioner to 13th February 1970. Thereafter, the petitioner
filed a petition questioning the territorial jurisdiction of the
Court to try the offence. It was on that petition that the
impugned order was passed, the Magistrate holding that the
petition was belated and that the Court had jurisdiction to
proceed with the trial. The revision petition has been placed
before a Division Bench by a learned Judge of this Court since
he felt that the question involved was one of importance.
6. In the special circumstances we have already pointed out at
the commencement of this judgment, namely, that the petitioner
did not take the objection of lack of territorial jurisdiction
until the entire prosecution evidence was over and even until
four of the five accused persons were discharged, we feel that
this case may be taken out of the expression "ordinarily" in
S. 177 of the Criminal P.C. The petitioner has not even
alleged that he is prejudiced by the trial being continued
before the Court at Trivandrum: in fact, the circumstances
pointed out at the bar indicate, that the trial of the cage in the
Trivandrum Court might probably be more convenient to the
petitioner.
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 24 of 28
51. Similarly, in another case titled as Meenakshi v. Udaya
kumar, 2007 SCC OnLine Ker 435, it was held that the
preponderance of judicial opinion is to the effect that if an objection
regarding territorial jurisdiction has not been raised at the earliest
opportunity, then it will not be entertained by the court:
3. The learned Magistrate took cognizance of the offence and
recorded the sworn statement of the complainant and took the
case on file as S.T. No. 143/2006. On receipt of summons, the
accused entered appearance. The trial of the case was later on
commenced. After the evidence in the case was over, the
accused was examined under S. 313 Cr. P.C. and the case
was posted for arguments when the first respondent accused,
for the first time, raised a contention that the said Magistrate
lacks territorial jurisdiction to entertain and try the
complaint since the place where the revision petitioner
complainant is residing and the place where the cheque was
presented and the place where the accused is residing are not
within the local limits of the JFCM-II, Haripad.
7. [I]t is pertinent to note that the objection regarding
territorial jurisdiction was raised only at the fag end of the
trial and that too for the first time when the arguments were
heard. Even though there is no provision in Cr. P.C.
analogous to one contained in S. 21 of the Code of Civil
Procedure, the preponderance of judicial opinion is to the
effect that if an objection regarding territorial jurisdiction
has not been raised at the earliest opportunity, then it will
not be entertained by the court. The position is almost
analogous to what is obtained under S. 21 C.P.C.
8. The court below was not justified in entertaining the
objection regarding territorial jurisdiction at the belated
stage as aforesaid especially when no prejudice was pleaded
or proved. The impugned order dated 5.2.07 is accordingly set
aside and JFCM-II, Haripad is directed to proceed with S.T. No.
143/06 and dispose it of in accordance with law.
52. Most recently, the aforesaid position of law has been re-
iterated by the Hon'ble Kerala High Court in Nishad Mathew v.
State of Kerala, 2022 SCC OnLine Ker 4847:
12. Reading the decisions referred by the learned Additional
Sessions Judge, it is crystal clear that, when there is no
inherent lack of jurisdiction, lack of territorial jurisdiction
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 25 of 28
or ground of irregularity of procedure an order or a
sentence awarded by a competent court could not be set
aside unless a prejudice is pleaded and proved, which would
mean failure of justice. In the case on hand, the accused
conceded the jurisdiction of the N.I. Court, Ernakulam and
accordingly, trial was completed and the accused raised question
of territorial jurisdiction at the fagant. Since the law is settled
that, if the Court has otherwise jurisdiction or the Court
does not lack inherent jurisdiction, the Court has the power
to dispose of the matter wherein, the evidence already
recorded, since the question of jurisdiction was not raised
before start of trial.
13. In this view of the matter, C.C. No. 154 of 2016 of the N.I.
Court, Ernakulam shall be disposed of by the said Court and the
transfer ordered by the said court to JFCM, Kalamassery is not
necessary.
14. In view of the matter, the learned Sessions Judge set aside
the order of transfer, with direction to the of the N.I. Court,
Ernakulam to hear and dispose of the matter within a period of
three months. I find no illegality in the order and therefore, the
order impugned herein is liable to be confirmed.
15. In view of the facts discussed, there is no merit in this
petition. Accordingly, this revision petition is dismissed,
directing the Judicial First Class Magistrate Court (NI Act),
Ernakulam to deliver judgment, after hearing both sides, within a
period of one month from the date of receipt or production of a
copy of this order.
53. Based on the aforesaid pronouncements, it is evident that the
objection regarding lack of territorial jurisdiction is required to be
taken at the earliest stage. Once the trial has concluded after
recording of entire evidence, the accused cannot be allowed to raise
the objection of lack of territorial jurisdiction for the first time,
especially when no prejudice has been shown to have been caused
to the accused.
54. In light of the aforesaid discussion, I am of the humble
opinion that the accused cannot be allowed to raise this objection at
the stage of final arguments when it was not raised during any stage
of trial. The trial proceedings have lasted for more than fourteen
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 26 of 28
years. The accused has participated in the trial proceedings for
fourteen years without raising any objection to the territorial
jurisdiction of the undersigned court. Evidence was recorded in
detail during trial. Learned counsel for the accused has not
contended that any prejudice/ failure of justice has been caused/ has
occasioned on account of the trial having been conducted before the
undersigned court. It is not the case of the accused that recording of
evidence was hampered in any manner on account of the trial
having been conducted before the undersigned court. In absence of
any prejudice having been caused to the accused, I am of the
considered view that the accused cannot be allowed to raise this
objection at this stage.
55. Further, it is pertinent to note that there is a difference
between inherent lack of jurisdiction and lack of territorial
jurisdiction. Competence of a court to try a case goes to the very
root of the jurisdiction, and where it is lacking, it is a case of
inherent lack of jurisdiction. On the other hand, an objection as to
the territorial jurisdiction of a court is a curable irregularity. It is
well settled that the objection as to territorial jurisdiction of a court
does not stand on the same footing as an objection to the
competence of a court to try a case. Section 462 of Cr.P.C.
specifically mentions that:
No finding, sentence or order of any Criminal Court shall be set
aside merely on the ground that the inquiry, trial or other
proceedings in the course of which it was arrived at or passed,
took place in a wrong sessions division, district, sub-division or
other local area, unless it appears that such error has in fact
occasioned a failure of justice.
Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 27 of 28
56. Therefore, since the objection regarding lack of territorial
jurisdiction was not raised at the first instance or before recording of
evidence, it cannot be allowed to be raised at this stage and the said
contention stands dismissed on account of belatedness.
G. CONCLUSION:
57. To recapitulate the above discussion, the complainant has
been successful in establishing his case beyond reasonable doubt.
The accused has failed to rebut the case of the complainant by
raising a probable defence. The defence of the accused that her case
is covered within the scope of eighth exception to section 499 IPC is
not proved, even on the standard of preponderance of probabilities.
58. Resultantly, the complaint of the complainant is allowed,
and the accused Ms. Kanta Chaudhary is hereby convicted of
the offence under Section 500 of the Indian Penal Code, 1872.
Let the convict be heard separately on quantum of sentence.
59. A copy of this judgment be given free of cost to the
convict.
ORDER :- CONVICTED.
Pronounced in open court on 27.10.2022 in presence of the accused. This judgement contains 28 pages, and each page has been signed by the undersigned.
DEVANSHU Digitally signed by DEVANSHU SAJLAN SAJLAN Date: 2022.10.27 15:13:40 +05'30' (DEVANSHU SAJLAN) Metropolitan Magistrate - 07 West District, Tis Hazari Courts, New Delhi/ 27.10.2022 Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 28 of 28