HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgement reserved on 6.10.2017.
Jugment delivered on 2.11.2017
Court No. – 13
Case :- APPLICATION U/S 482 No. – 26948 of 2017
Applicant :- Kuldeep Singh And 3 Others
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Vikrant Rana
Counsel for Opposite Party :- G.A.
Hon’ble Dinesh Kumar Singh-I,J.
This application under section 482 of the Criminal Procedure Code has been moved with a prayer that the proceedings in complaint case No. 984 of 2016 (Jasveer Singh Khalsa vs Sardar Jagmeet Singh and others) be quashed whereby the accused applicants have been summoned to face trial under section 500 IPC.
The contention of the learned counsel for the accused applicants is that due to a dispute of Committee of Management between the accused applicants and the opposite party No. 2, both the sides have filed criminal cases against each other and the dispute was also placed before the Registrar Firms, Societies and Chits, Lucknow, Uttar Pradesh and the present complaint under section 500 of the Criminal Procedure Code is also filed by the opposite party No. 2 against the accused applicants by way of creating pressure upon them. It has been mainly argued that the case of the applicant accused is covered under seventh exception as provided under section 499 IPC. The learned counsel has relied upon a large number of rulings in support of his contentions which would be cited at the relevant place.
The record reveals that the applicants have narrated the background of dispute as follows to expose the intention of opposite party No. 2 to malafidely file cases against the accused applicants to create pressure. There is a Society by the name Shri Guru Singh Sabha, situated at Thapar Nagar, Meerut, registered under the Societies Registration Act, which also controls the Management of Khalsa Inter College, Meerut. The election of the Society was held in the year 2007 – 08, in which Sardar Tilak Singh was elected as President and Sardar Jagmeet Singh Meet (applicant No. 2) was elected General Secretary and Jasveer Singh Khalsa (opposite party No. 2) was elected as one of the secretaries. The term of the aforesaid Committee of Management was 5 years, which was illegally extended by the opposite party No. 2 and his associates up to 2015. Applicant No. 2 made a complaint about this against the opposite party No. 2 before District Inspector of Schools, Meerut. In the meantime the President of the Society, Sardar Tilak Singh expired in the month of June, 2015 which resulted in rescheduling of elections to be held in the year 2015. No election of the Society was held after the death of the President. The opposite party No. 2 in collusion with his associates submitted a list of elected office bearers of the Society for the year 2015 – 16 in the office of Sub- Registrar, Firms, Societies and Chits, Meerut (to be referred as Registrar in short) for renewal of the Society, in which the elder brother of the opposite party No. 2 was shown elected as the President. When the applicant No. 2 came to know about the submission of the list of the office bearers by opposite party No. 2 in the office of Sub-Registrar, Firms, Societies and Chits, he immediately filed a complaint on 26/9/2015 before the authority concerned requesting to take action against opposite party No. 2 and also to appoint a receiver. A meeting of general body was decided to be convened to conduct the election of the Management Committee of the Society, in which among other agenda items, the illegal activities of opposite party No. 2 was also discussed. On 1/10/2015 the election proceedings of the society were held, in which applicant No. 2 was elected as President, applicant No. 1 as Senior Vice President, applicant No. 3 as Executive Member and applicant No. 4 as Press Secretary. The intimation was given on 5/10/2015 of the election to the Sub-Registrar and the District Inspector of Schools, Meerut about the newly elected members/office bearers. On 8/9/2015 the opposite party No. 2 illegally, without informing the members of the Society in collusion with his associates, held a meeting without any authority, in which only few members participated and passed a decision, by which the membership of the General Secretary (applicant No. 2) was terminated and the name of Sardar Ranjit Singh Nanda was proposed for the post of President and the name of Surjeet Singh Goldi was proposed for General Secretary. Both the persons were illegally elected on the said posts through a forged election proceedings. The opposite party No. 2 was also elected as one of the secretaries of the society along with other office bearers. The opposite party No. 2 along with his associates formed a new Committee of Management of the Society in the meeting on 8/9/2015. The opposite party No. 2 always desired to take over control of the Management of the Society as well as Khalsa Inter College in pursuance of his ill motive. The applicant No. 2 made a complaint before the Registrar on 28/4/2016 apprising about illegal activities of opposite party No. 2 and his associates, whereon the State Government passed an order for enquiry to be conducted on 28/4/2016. Since 14/12/2015 and 21/1/2016 the opposite party No. 2 is continuously committing frauds in the documents of the Society, and filed an application under section 156 (3) of Cr. P.C. before the Chief Judicial Magistrate, Meerut against the applicants to create pressure, which was treated as a Complaint Case by the Magistrate. On 18/3/2016 the ACJM, Court No. 3, Meerut issued summons against the applicants under sections 420, 467, 468, 471 and 120 – B IPC. The said summoning order was challenged by filing Criminal Revision No. 1685 of 2010 on 1/6/2016, in which opposite party No. 2 was issued notice and interim order was also passed. Thereafter, the opposite party No. 2 with a view to harassing the applicants also lodged an NCR No. 34 of 2016 under sections 323, 504 and 506 IPC, PS Sadar Bazar against the applicants on false and frivolous allegations with a view to creating pressure in the dispute of Committee of Management of the Society. The opposite party No. 2 moved an application on 4/7/2016 under section 155 (2) of Cr. P.C. before C.J.M., Meerut with the prayer that the police of Sadar Bazar, Meerut may be directed to register the case and start investigation in NCR No. 34 of 2016. On 8/11/2016 the police submitted charge- sheet in the said case against the applicants under sections 323, 504 and 506 IPC before the Court of C.J.M, Meerut. Thereafter on 11/5/2016, the opposite party No. 2, with a view to harassing the applicants and 5 other persons, filed a complaint under section 500 IPC in the Court of ACJM, Court No. 3, Meerut registered as Complaint Case No. 984 of 2016, which is the case in which the summoning order is being sought to be quashed in the present proceedings.
The version of the complainant (O P No. 2) in the complaint is that he is Secretary of Gurdwara Guru Singh Sabha and Secretary of Khalsa Inter College and has good reputation in Society. Besides this he also has been running a decent hotel and restaurant in Meerut for a long time. On 21/4/2016 the accused applicants gave an application to the District Inspector of Schools on 21/4/2016 levelling false allegation that in the hotel belonging to the O P No. liquor was being consumed openly; gambling was also resorted to: brothel was being run. On receipt of the said letter the District Inspector of Schools, Meerut summoned the complainant (O P No. 2) in his office, where there were Managers and of various schools, presspersons and other related officers and in front of them the complainant (O P No. 2 ) was questioned regarding the aforesaid allegations. In view of this all, the persons present there looked down upon the complainant which resulted in defamation of the complainant and in lowering his image in society. It is further mentioned that the SHO, PS, Sadar Bazar, Meerut had found all the allegations concerning hotel as baseless. The main object of the accused applicants was to capture the Management of Gurdwara Guru Singh Sabha and Khalsa Inter College. The complainant had also got the notice issued through his counsel to the accused applicants on 26/4/2016, but instead of sending its reply, the threat to beat and kill him was issued, regarding which he had to lodge a report at PS, Sadar Bazar under sections 323, 504 and 506 IPC. In the end, a prayer was made to summon the accused under section 500 IPC to face trial. These allegations have been supported by the statement on oath of the complainant under section 200 Cr. P.C. as well as by 2 other witnesses namely Har Mohan Singh (PW 1) and Dinesh Agarwala (PW 2). Based on this evidence the impugned order has been passed finding primafacie case made out under section 500 IPC against the accused applicants, to face trial.
It would be pertinent to see whether the ingredients of defamation under section 499 IPC which is punishable under section 500 IPC, are satisfied in the present case or not,
Section 499 IPC is defined 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 excepted, to defame that person.
Seventh Exception. – it is not defamation if a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure or the conduct of that other in matters to which such lawful authority relates.
A Judge censuring in good faith the conduct of a witness, or of an officer of the Court; a Head of a Department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children;a high school master whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissness in service; a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cashier – are within this exception.”
From the above definition of defamation it is clear that following ingredients need to be satisfied for accused to be summoned to face trial under section 500 IPC: –
(i) Making or publishing any imputation concerning any person;
(ii) Such imputation must have been made by
(a) words, either spoken or intended to be read; or
(b) Signs; or
(c) Visible representations
(iii) Such imputation must have been made with the intention of harming or with knowledge or reason to believe that it will harm the reputation of the person concerning whom it is made.
Now, the Court has to see whether the above ingredients are satisfied in the present case or whether the case falls under seventh exception as is urged by the learned counsel for the applicants- accused.
The complaint finds mention that the accused persons had written a letter dated 21/4/2016 making filthy allegations against the opposite party No. 2 with a view to maligning his reputation and defaming him, on the basis of which he was summoned in office of the District Inspector of Schools, Meerut in front of various other Managers and Principals of the other schools for being interrogated, which lowered his image in the estimation of so many persons who were present there.
A perusal of the said letter dated 21/4/2016 would make it clear that it has been signed by the 4 accused applicants and also various other persons, who are not made accused by the opposite party No. 2. This letter contains the course of events of the elections of the Committee of Management and allegations, against the opposite party No. 2 made therein which need not be mentioned in detail here. But the relevant portion requires to be cited that the business of Jasveer and his family was abominable from the social angle, because he mainly runs Singh Hotel, Singh Chicken, Libra Hotel, Lion Hotel and has also made illegal constructions and runs illegal businesses. In these hotels he openly serves liquor, arranges for people to gamble, runs brothel. To put a curtain on these abominable activities, Jasveer Singh and his whole family is having hold over the Management of Khalsa Inter College since 1998 by forming forged Committees and a huge amount has been earned by him in appointments of the teachers.
The above allegations would certainly fall in the definition of section 499 IPC and would not be covered under its seventh exception nor under the guideline No. 7 of Bhajan Lal’s case, in the estimation of this Court. Such kind of filthy allegations against any person would constitute a case of defamation. The argument of the learned counsel that this is a case of fair criticism by the accused persons, of the activities of the opposite party No. 2 and hence would fall in seventh exception because such things were alleged in good faith, does not sound reasonable. Any person of common prudence would deduce from it nothing but that these are extremely malicious allegations not to be condoned at any cost. Even if there was rivalry between the two sides that would not mean that either of them should stoop so low as to make such dirty allegation.
The learned counsel for the accused applicants has relied upon following case law.
(i) Doctor Vishnu Dutt Agarwal vs State of U.P. and another, 2012 (5) ADJ 480: In this case the accused was a Principal (Acting) of the Government Ayurvedic College and the complainant was working as an instructor; several letters were written to Director-General that complainant was running a nursing home in her house and was not taking interest in discharging duties; it was considered that there was no intention to defame her, it was responsibility of the accused revisionist to maintain decorum, dignity, for smooth running of college and hospital; there were no personal allegations levelled by accused against the complainant except that she had signed anti-timed on attendance register; the case of accused revisionist was found covered by exceptions 7 and 8 of section 499; it was held that summoning order was passed in a cursory manner; the letter written by the revisionist only expressed his apprehension that because of high connection of complainant’s husband nobody was ready to state truth against complainant; there was no intention found to defame complainant and hence the prosecution was held to be malafide and an abuse of process of Court.
(ii) (Smt.) Usha vs Yashpal Singh, Advocate (H . C .), 2006 (54) ACC 776: Applicant Usha, Principal of a college was summoned under section 500 IPC on a complaint made by opposite party, Yashpal Singh, ex-Manager of the Institution; the allegation in the complaint was that one teacher, Kumari Shimla had filed a Writ Petition No. 11463 of 1992 which was decided in her favour on 29/9/1994 on the footing that, Shimla was working without any break since 2/3/1988 as an LT grade teacher; in that case, the complainant claimed that he was also made a party and had filed a counter affidavit on the basis of true facts and documents shown by the Principal; the applicant is said to have written a letter on 9/1/2002 to the Accountant and Finance officer, Muzzaffarnagar, wherein he stated maliciously with an intention to defame the complainant that in the counter affidavit of the complainant in the writ petition of Kumari Shimla, incorrect facts had been mentioned for personal gain in a dishonest and collusive manner, which amounted to criminal act and in this manner she had defamed the complainant lowering his reputation in society. The Court held that prosecution appeared to have been initiated for a collateral purpose inasmuch as there appeared to be a dispute between the parties over running of the Institution and it was for this reason that a mountain appeared to have been made out of a mole hill, hence an abuse of process of Court.
(iii) Criminal Appeal No. 67 of 1995, Rajendra Kumar Sitaram Pandey and others vs Uttam and another decided on 11/02/1999 by the Supreme Court: The Respondent No. 1 had made a complaint that accused persons had made a false complaint to the Treasury Officer, Amarawati, containing false imputation to the effect that complainant had come to office in a drunken state and abused Treasury officer and thereby had committed an offence under section 500 read with section 34 IPC; it was held that the case was covered under exception 8 to section 499, which indicates that it is not a defamation to prefer, in good faith, an accusation against any person, to any of those who have lawful authority over that person with regard to the subject matter of accusation. In this case the report of Treasury officer clearly indicated that pursuant to the report made by the accused against the complainant, a departmental enquiry was held and the complainant was found guilty. Under these circumstances, if the accused person had made a report to the superior officer of the complainant alleging that he had abused the Treasury officer in drunken state, which is the gravamen of the present complaint, the same would be covered by exception 8.
(iv) G Sagar Suri and another vs State of U.P. and others , (2000) 2 Supreme Court Cases 636: Respondent No. 2, GM of a Finance Company, lodged an F.I.R. against 7 persons including the appellants, alleging that they as directors of an automobile company, had taken a short-term loan of Rs. 50 lakhs from the Finance Company, but the cheques drawn by them by way of repayment of the loan with interest, on presentation, were dishonoured by the bank for insufficient funds. The police submitted charge- sheet under sections 406/420 IPC against the 2 appellants and their family members describing all of them as Directors of the said Automobile Company. During investigation the appellants were found to be not Directors of the said Company. In counter affidavit filed on behalf of the complainant, apart from making an omnibus statement that the first appellant, with dishonest intention and misrepresentation, got the loan, nothing had been said as to what those misrepresentations were, how the Finance Company was duped, what were the roles played by the appellants and others in the alleged offence and why the charge- sheet was filed against the appellants and their family members only leaving aside the other Directors of the Auto-Mobile Company. A Criminal Complaint under section 138 of the Negotiable Instruments Act was already pending at the time of filing the F.I.R., but the charge- sheet relating to the alleged offence under sections 406/420 IPC, did not show if the investigating agency looked into the complaint filed under section 138 of the said Act. The Court held that the whole attempt of the complainant was evidently to rope in all the members of the family of the appellants, who included parents of the Managing Director of the Automobile Company, without regard to their role of participation in the alleged offences, with the sole purpose of getting the loan due to the Finance Company by browbeating and tyrannising the appellants with criminal prosecution, hence it was found an abuse of process of Court.
(v) Baijnath Jha vs Sita Ram and another, (2008) 8 Supreme Court cases 77: A raid was conducted on 4/1/1994 in the premises of Respondent No. 1, by 4 officers of Bihar State Electricity Board. The appellant was a member of the raiding party in each of the criminal appeal along with others and one Shri Ravindra Kumar Singh, who was then functioning as executive engineer. Respondent No. 1 was arrested on the basis of F.I.R. that was lodged with the police officials; allegation against respondent No. 1 was that he had committed theft of electricity, attracting penal consequences under section 379 IPC; respondent No. 1 filed a complaint before Judicial Magistrate, alleging that appellant in each case and Ravindra Kumar Singh, had demanded illegal gratification, without mentioning the date in the complaint as to when the demand was indicated; the Court held that the proceedings were instituted with malafide intention; no reason was disclosed as to why the complainant chose not to proceed against one of the four persons initially named; the case was found to be covered in the category (7) of Bhajan Lal’s case.
(vi) Sunder Babu and others vs State of Tamil Nadu, (2009) 14 Supreme Court cases 244: The complainant was married to the Appellant No. 1 on 25/11/1998, Sunder Babu; Appellant No. 2 and 3 are parents of Sunder Babu; Appellant 4 is his sister; Appellant No. 1 left for USA on 1/7/1999; complaint was filed on 6/2/2000 without any basis alleging commission of an offence punishable under section 498 – A IPC and section 4 of Dowry Prohibition Act, 1961; charge sheet was filed on 8/6/2000; a divorce petition was filed by complainant and appears to have been granted ex parte on 12/7/2001. According to the appellants, complainant had remarried on 24/8/2002 ; appellant No. 1 had left for USA after about 6 months of the marriage; Long thereafter on 6/2/2000, the complaint was filed without any explanation of delay. It was held that a bare cursory perusal of the complaint would show that the case at hand would fall within category (7) of the illustrative parameters highlighted in Bhajan Lal’s case.
(vii) Mahindra and Mahindra Financial Services Ltd and another vs Rajiv Dubey, 2009 (64) ACC 669: Complainant – Respondent had filed a complaint alleging offences under section 406 and 420 IPC, after the appellants had filed a complaint against the respondent for offence under section 138 of Negotiable Instruments Act; the respondent’s complaint was only in the nature of a counterblast; respondent did not dispute issuance of cheques to the appellant; offence under section 506 IPC was not made out at all; allowing the appeal it was held that the filing of complaint by the respondent was an abuse of process of Court which was squarely covered under the guidelines (category 7) laid down by the Supreme Court in the Bhajan Lal’s case.
(viii) Ramesh Rajagopal vs Devi Polymer’s Private Limited, (2016) 6 Supreme Court Cases 310: The respondent initiated criminal proceedings against appellant – accused under sections 409, 468 and 471 IPC read with sections 65 and 66, IT Act, read with section 120 – B IPC; the Court held that it was not possible to view the contents of the website as a Concern, which was separate from the Company concerned, in view of the contents of the website; it was not possible to impute any intent to cause damage or injury or to enter into any express or implied contract or any intent to commit fraud in the making of the said website; appellant had not committed any act which fits the above description; admittedly he had not received a single rupee nor had he entered into any contract in his own name on the basis of above website; as regards the offence under IT Act, the same was not made out as there was no allegation that any computer source code had been concealed, destroyed or altered; accordingly the prosecution was quashed holding it to be abuse of process of Court.
(ix) Rajiv Thapar and others vs Madan Lal Kapoor, (2013) 3 Supreme Court cases 330: It is laid down that in exercise of its jurisdiction under section 482, the High Court must make just and rightful choice; at this stage neither truthfulness of allegations levelled by the complainant can be evaluated, nor can the weight of evidence be determined; where allegations bring out all ingredients of charges levelled, and material placed before Court primafacie shows truthfulness of allegations, trial must proceed even when accused is successful in raising some suspicion or doubt in allegations levelled; this is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The High Court has to be fully satisfied that material produced or relied on by accused (a) leads to conclusion that his/their defence is based on sound, reasonable and indubitable facts; (b) rules out and displaces assertions contained in charges levelled against accused without necessity for recording any evidence; (c) should not have been refuted, or alternatively, cannot be justifiably refuted, being of the sterling and impeccable quality i.e. a reasonable man should be persuaded to dismiss and condemn actual basis of accusations as false; and (d) whether proceeding with the trial would result in an abuse of process of the Court, and would not serve the ends of justice. It was held on these parameters that the evidence produced by the appellant-accused husband viz. post-mortem report, chemical analysis, findings by Central Forensic Science Laboratory, inquest report, letter written by brother of deceased just 4 days before her death, and telephone bills substantiating consistent and regular and amicable/cordial contact between families of husband and deceased wife, were not refuted or contested by respondent complainant (father of the deceased wife) ; complainant himself was uncertain about manner in which his daughter had allegedly died i.e. whether by poisoning or strangulation; High Court in such circumstances should have viewed matter, keeping in mind likelihood of hurt caused to a father who had lost his daughter within one year of marriage (due to heart disease) and ascertained whether complaint was actuated by malice and ulterior motive for wrecking vengeance; mother of deceased despite repeated opportunities, had failed to appear in inquest proceedings; High Court erred in not exercising its judicial conscience by invoking its inherent powers and quashing the proceedings, rather quashed discharge order passed by the Sessions Judge, accordingly discharge order was restored and the proceedings quashed.
(x) Prashant Bharti vs State (NCT of Delhi), (2013) 9 Supreme Court Cases 293: Pursuant to registration of F.I.R. and recording of statement of complainant/prosecutrix by Magistrate under section 164 Cr. P.C., charge- sheet was filed by police under sections 328, 354 and 376 IPC against the accused – appellant, although from investigation police could not find any proof in support of offences alleged; material relied upon by the appellant in support of his plea for quashing the proceedings was found to be sound, reasonable and indubitable, sufficient to reject factual assertions, contained in charges levelled against him and not refuted by complainant; it was held that the proceedings would result in abuse of process of Court and would not serve the ends of Justice; it was held that the judicial conscience of High Court ought to have persuaded it to quash the criminal proceedings; proceedings were accordingly quashed.
It is apparent from a perusal of above case laws that the facts of these cases are totally different from the facts of the case on hand. In the case on hand the kind of allegations which have been brought in writing are not being denied by the applicants, rather it is being argued that they were highlighted with a view to protecting interest of the Management Committees by way of making healthy comment so that the complainant would improve and stop indulging in such kind of activities in future. Further it also seems beyond comprehension as to how it could be taken as a malicious prosecution when such kind of allegations are consciously made. The burden would lie upon the accused applicants to prove by adducing defence that whatever they have stated is truthful failing which the offence would stand proved against them, of section 500 IPC. Therefore it certainly requires full trial in which both the sides will have opportunity of adducing evidence. The proceedings need not be nipped in the bud. The application deserves to be dismissed.
This application under 482 of the Criminal Procedure Code is rejected, having no force.
Order Date :- 2.11.2017