Harsha Liladhar Rane vs Rupali Kailas Rane And Anr on 21 December, 2017

(1) Cri. W.P. No. 1217-2017

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION
NO.
1217
OF 201
7

1. Sau. Harsha Liladhar Rane,
Age : 25 Years, Occ. Housework,
R/o. C/o Laxman Yadav Mahajan,
N-9, K-42, Pawan Nagar, CIDCO
Sambhaji Nagar, (Aurangabad) ..PETITIONER

VERSUS

1. Sau. Rupali Kailas Rane,
Age : 28 Years, Occ. Household,
R/o. Ganabappa Nagar, Dharangaon,
Tal. Dharangaon, Dist. Jalgaon

2. The State of Maharashtra. ..RESPONDENTS.
….
Mr. A.G. Talhar, Advocate for the Petitioner.
Mr. V.B. Patil, Advocate for Respondent No.1.
Mr.G.O.Wattamwar, APP, for Respondent No.2
….

CORAM : PRAKASH D.NAIK, J.

Date of reserving the Judgment : 08.11.2017
Date of pronouncing the Judgment : 21.12.2017

JUDGMENT

1. Heard learned counsel for the parties.

2. The petition takes exception to the prosecution initiated by

::: Uploaded on – 21/12/2017 23/12/2017 02:38:01 :::
(2) Cri. W.P. No. 1217-2017

Respondent No.1 for the offence punishable under Section 500 of the

Indian Penal Code. The petitioner has assailed the order dated 5 th

April, 2017, passed by the learned Additional Sessions Judge, Jalgaon

in Criminal Revision Application No. 202 of 2015.

3. Respondent No.1 is the complainant in Summary Criminal Case

No. 454 of 2015. The said complaint was filed on 17 th August, 2015

before the Court of Judicial Magistrate, First Class, Dharangaon.

Respondent No.1 is the sister-in- law of the petitioner ( wife of the

brother of the husband of petitioner).

4. Brief facts as alleged in the complaint are as follows :-

(a) The complainant is a reputed person. Her husband is in

employment with Government. The family of the complainant is

respected in the society.

(b) The accused is the sister in law of the complainant. Without any

reason, the accused has held grudge against the complainant and

her husband. There are differences between the accused and her

husband, Shri. Liladhar Rane, which has resulted in initiating the

Court proceedings, which are pending in the Court. The accused

::: Uploaded on – 21/12/2017 23/12/2017 02:38:01 :::
(3) Cri. W.P. No. 1217-2017

presently is residing at her parental home.

(c) In March 2015, the husband of the accused had issued notice to

the accused through his Advocate for restitution of conjugal rights.

The said notice was replied by the accused on 4 th April, 2015 through

her Advocate. In the said reply, it was stated that her husband should

discontinue his illicit relationship with his Sister-in-law and on that

condition, she is willing to cohabit with her husband. The said reply

was handed over by the husband of the accused to the complainant.

She was mentally shocked to read the said reply.

(d) The reply forwarded by the accused was read by the family

members of the complainant in her house as well as her relatives and

by the family members of her brother-in-law, which has caused harm

to the reputation of the complainant. The said reply has resulted in

causing damage to the image of the complainant. At the relevant

time, the complainant was pregnant and the reply has caused her

enormous mental tension.

(e) The complaint was lodged to Dharangaon Police Station on 10th

August, 2015, however, no action was taken by the police. The

accused has deliberately made the averments in the reply with an

::: Uploaded on – 21/12/2017 23/12/2017 02:38:01 :::
(4) Cri. W.P. No. 1217-2017

intention to cause harm to the reputation of the complainant in the

society. Hence, the complaint was filed alleging the offence under

Section 499 of the Indian Penal Code, punishable under Section 500

of the Indian Penal Code.

5. The learned Magistrate vide order dated 25th August, 2015

called the report under Section 202 of the Code of Criminal

Procedure. The said report was called by considering the fact that the

accused is residing beyond the jurisdiction of the trial Court.

6. The trial Court thereafter heard Advocate for the complainant

and dismissed the complaint under Section 203 of the Code of

Criminal Procedure. The trial Court was pleased to observe that the

notice was issued to Shri. Liladhar Rane and the question of

publication of the reply does not arise. It was also observed that the

accused having made the said averments in ”good faith” there was no

intention to cause defamation of the complainant. The accused did

not make publication of the allegations in the society. The complaint

was dismissed on 26.10.2015.

::: Uploaded on – 21/12/2017 23/12/2017 02:38:01 :::

(5) Cri. W.P. No. 1217-2017

7. Respondent No.1 challenged the said order by preferring

Criminal Revision Application No. 202 of 2015 before the Court of

District and Sessions Judge at Jalgaon. The Sessions Court vide

order dated 5th April, 2017, allowed the revision application and set-

aside the order dated 26th October, 2015, and restored the criminal

complaint. The parties were directed to appear before the trial Court

on 4th May, 2017. The Sessions Court has observed that the learned

Magistrate has committed an error in holding that the imputations

are made in good faith.

8. In pursuance to the aforesaid order, the learned Judicial

Magistrate, First Class, Dharangaon, issued the process against the

accused for the offence punishable under Section 500 of the Indian

Penal Code. The learned Magistrate relied upon observations of the

Sessions Court and had issued the process. The petitioner has

therefore, approached this Court challenging the said proceedings.

9. In accordance with the order dated 20th September, 2017, passed

in these proceedings, the parties were heard for final disposal of this

::: Uploaded on – 21/12/2017 23/12/2017 02:38:01 :::
(6) Cri. W.P. No. 1217-2017

petition.

10. The learned counsel for the petitioner advanced the following

submissions :-

(I) The Revisional Court had committed an error in setting-aside

the order passed by the Trial Court dismissing the complaint under

Section 203 of the Code of Criminal Procedure. The Sessions Court

failed to take into consideration the mandate of Sections 499 and 500

of the Indian Penal Code.

(II) The learned Sessions Court has not considered the fact that the

main dispute was between petitioner and her husband. The reply was

forwarded by the accused to her husband and there is no question of

publication of the said statements so as to defame the complainant in

the society. This fact is over looked by the Sessions Court.

(III) The Sessions Court failed to appreciate that matrimonial

dispute was going on between Liladhar Rane the husband of the

petitioner and the petitioner and the statement was made in the reply

forwarded to the husband. It is submitted that the reply was not

addressed to any other person and hence the question of defamation

::: Uploaded on – 21/12/2017 23/12/2017 02:38:01 :::
(7) Cri. W.P. No. 1217-2017

of Respondent No.1 does not arise.

(IV) The Sessions Court considered the fact that alleged averments

were in reply to the notice forwarded by the husband of the accused,

wherein the accused has shown inclination to cohabit with her

husband subject to husband destituting from continuing illicit

relationship with his Sister-in-law. It is submitted that averments are

required to be considered in the context in which the same are made

and there was no intent to defame the complainant. The main

ingredients to constitute the offence of the defamation is that the

imputation must be made with intent to defame. On reading

averments, it appears that the wife was trying to maintain her

matrimonial relationship subject to her husband refraining from

continuing alleged relationship with sister-in-law.

(V) The finding recorded by the Sessions Court in respect of

address, by mentioning ” care of”, the Court has committed an error

since the said observation is contrary to the record. The Court did

not verify the documents while making such observations. Notice

issued by the husband of the accused dated 25 th March, 2015

::: Uploaded on – 21/12/2017 23/12/2017 02:38:01 :::
(8) Cri. W.P. No. 1217-2017

disclosing two addresses one at Pune and another at Nande Tq.

Dharangaon was not considered by the Sessions Court. It is

submitted that, there was no reason to set-aside the order of

dismissal of the complaint. It is further submitted that the complaint

does not make out offence under Section 499 of the Indian Penal

Code and, therefore, order issuing process as well as proceeding

initiated against the petitioner be quashed and set-aside.

(VI) The learned counsel for the petitioner relied upon following

decisions in support of his arguments :-

(a) Sudhir Parihar Vs. Ravi Shankar Singh Bhadauria Ors.

( 2007(2) Bom.C.R.(Cri.)205)

(b) Sopan Vithal Shinde Vs. State of Maharashtra
2008(2) Bom.C.R. (Cri.) 463.

(c) Mrs. Kumudesh Bhandari Vs. Ms. Gopika Tapuriah and
another. (1995 (3) Bom.C.R. 534)
(d) Gopi R. Mallya Vs. Pushpa (Smt.)
(1997 DGLS(Kar.) 233.)

(e) Balia Vs. Heerji
(1968 DGLS(Raj.)26.)

11. The learned Advocate for the respondent No.1-complainant

opposed grant of any relief to the petitioner. The respondent No.1-

::: Uploaded on – 21/12/2017 23/12/2017 02:38:01 :::

(9) Cri. W.P. No. 1217-2017

complainant has also tendered the affidavit-in-reply opposing the

prayers in this petition. The learned counsel made the following

submissions :-

(I) The Trial Court had committed an error in dismissing the

complaint under Section 203 of the Code of Criminal Procedure. The

said order has been set-aside by the Sessions Court. There is no

reason to interfere in the order passed by the Sessions Court.

(II) Verification statement of the complainant is recorded under

Section 202 of the Code of Criminal procedure and documents on

record prima facie make out a case for issuance of process under

Section 499 of the Indian Penal Code. This factor was considered by

the Sessions Court, while setting-aside the dismissal order and in

pursuance to that the Trial Court has rightly issued the process

against the petitioner.

(III) The accused has deliberately made the defamatory averments in

the reply forwarded by her to her husband. The parties are related to

each other and known to each other. The accused was required to

believe that the averments in the reply were tainted to cause harm to

the reputation of the complainant. The averments in the reply have

::: Uploaded on – 21/12/2017 23/12/2017 02:38:01 :::
( 10 ) Cri. W.P. No. 1217-2017

caused enormous mental torture and also it has caused harm to the

reputation of the complainant in the society and among their

relatives.

(IV) It is submitted that at the stage of issuance of process, the

trial Court is required to consider the material on record and on the

basis of prima facie case, the cognizance of the complaint has to be

taken. The defence of the accused is that there was no intention or

that the averments were made in good faith, are required to be

considered at the stage of trial. Hence, the initial order passed by the

learned Magistrate was contrary to the law and the same has been

rightly set-aside by the Sessions Court. The learned Advocate for the

respondent No.1 relied upon the decision in the case of Jeffery

J.Diermeier And Another Vs. State of W
est
Bengal 2010

DGLS(Cri.) Soft 1307 (Supreme Court)
.

12. The complainant and the petitioner are related to each other, as

stated herein above. Admittedly, there is matrimonial dispute

between the petitioner and her husband. The complainant is sister-

in-law of petitioner-husband. In the complaint, it is stated that the

accused was having grudge against the complainant and her husband

::: Uploaded on – 21/12/2017 23/12/2017 02:38:01 :::
( 11 ) Cri. W.P. No. 1217-2017

without any reason. At the same time, there were disputes between

the petitioner/accused and her husband, which has resulted into the

Court proceedings. The petitioner’s husband forwarded a notice dated

25th March, 2015, through his Advocate, to the petitioner. It was

stated that she has left the matrimonial home. It was also stated that

she should return home within seven days from the receipt of the

notice with four respected persons and she would give assurance that

she would behave properly. In case of failure, the husband would be

compelled to initiate appropriate proceedings in the Court. The said

notice was replied by the petitioner, through her Advocate. The said

reply was addressed to the husband on the address, which was

mentioned in the notice by the petitioner’s-husband. In the said reply

alleged objectionable averments were made. It was stated that the

petitioner is willing to cohabit with her husband, if he resides with

her at Pune. It was stated that there should not be intervention of his

parents, brothers and sister-in-law, since the petitioner is

apprehending danger to her life at their instances. It was further

stated that the husband shall also discontinue the illicit relationship

with sister-in-law, and on this condition, the petitioner wife is willing

::: Uploaded on – 21/12/2017 23/12/2017 02:38:01 :::
( 12 ) Cri. W.P. No. 1217-2017

to cohabit with the husband. The learned Magistrate, after recording

the verification statement, called for report under Section 202 of the

Code of Criminal Procedure. On perusing the documents as well as

the Police report, the learned Magistrate was pleased to observe that

no case is made out under Section 499 of the Indian Penal Code.

There was no intention to cause harm to the reputation of the

complainant nor there was publication of defamatory statement. The

Court also observed that there is family dispute between the

petitioner and her husband. Notice sent by her husband was replied,

wherein the disputed statement was made. It was further observed

that the notice was specifically issued to the husband and therefore,

there was no question of publication of the statement made therein.

The reply was not published and it is specifically sent to the husband.

Hence, the complaint was dismissed. The decision of the trial Court

therefore, was based on sound reasoning and interference was not

called for in the revision application preferred by the complainant.

The Sessions Court has observed that the accused was fully aware

that her husband was residing at Pune and in spite of that, the notice

was sent on the address of husband of the complainant. The

::: Uploaded on – 21/12/2017 23/12/2017 02:38:01 :::
( 13 ) Cri. W.P. No. 1217-2017

accused has, therefore, defamed the complainant. The Sessions

Court also observed that in the event of such statement being made

in the plaint or written statement, filing of such plaint or written

statement amounts to publication. Filing of the application under the

Protection of Women From Domestic Violence Act by accused also

comes under the category of publication. So also sent notice on the

address of the complainant. It was addressed in the name of the

complainant’s husband as ”care of”. Therefore, there was possibility

that the complainant’s husband may read the same. The imputation

in the reply forwarded by the accused appears to be defamatory in

nature, said observation appears to be contrary, to averments in the

complaint. The complaint does not refer to the fact that reply to the

notice was also sent on the address of the husband of the

complainant. The complaint does not involve issue of causing

defamation, by filing the complaint under the Protection of Women

From Domestic Violence Act or filing the plaint or written statement.

The revisional court also inferred that the husband of the

complainant may read the communication, which was sent to the

complainant at ” care of”’ address of her husband. The order of the

::: Uploaded on – 21/12/2017 23/12/2017 02:38:01 :::
( 14 ) Cri. W.P. No. 1217-2017

Sessions Court depicts non application of mind.

13. The dispute is primarily between the petitioner and her

husband, and the alleged imputation was made in the reply sent to

the husband. There was no intention to cause defamation to the

complainant. Since the reply was forwarded to the husband of the

accused, there was no question of publication of the same to the

other persons. On the contrary, the complainant submitted the

complaint to the Police Station with regard to the alleged imputation.

The complainant, therefore, does not justify the prosecution under

Section 499 of the Indian Penal Code. The complaint was filed

apparently to cause harassment to the petitioner. The complainant

has alleged that reply forwarded by the accused was read over by the

relatives in the house of the complainant and the husband of the

accused, which has resulted in mental agony to the complainant.

Apart from the fact that statement is vague, the reply which was

forwarded to the husband by the accused cannot be read over in

public. The complainant is trying to implicate the accused in the said

proceedings by exhortation. The finding of the Sessions Court in

respect of address by mentioning ” care of” is contrary to the record

::: Uploaded on – 21/12/2017 23/12/2017 02:38:01 :::
( 15 ) Cri. W.P. No. 1217-2017

and without verification of the notice issued by the husband of the

petitioner dated 25th March, 2015, through his Advocate, which

discloses that two addresses one at Pune and another at Nande Tq.

Dhangaon. The complaint is, therefore, filed with mala fide intention

to cause harassment to the petitioner. It would be abuse of process of

law to continue such a prosecution.

14. In the case of Sudhir Parihar Vs. Ravi Shankar Sing

Bhadauria And Others 2007(2) Bom.C.R. (Cri.) 205 there was

matrimonial dispute between the parties and in view of that, notices

were sent through their Advocates. On account of reply to the notice,

the complaint for defamation was filed. This Court observed that the

alleged defamatory statements were conveyed by the accused

involving intention in the dispute. The Court therefore observed as

under :-

” The essence of the offence of defamation, is the harm

caused to the reputation of a person, to makes out a case of

defamation, publication must be with intention to harm prestige of a

person and it is to be shown that it has affected his prestige of the

complainant in the society.

::: Uploaded on – 21/12/2017 23/12/2017 02:38:01 :::

( 16 ) Cri. W.P. No. 1217-2017

15. In the case of Sopan Vithal Shinde Vs. State of Maharashtra

2008(2) Bom.C.R. (Cri.) 463, this Court has observed that there

must be publication of imputation intending to harm reputation of

the person, who is defamed. The person who alleged defamation

must prove that in estimation of others, his moral or intellectual

character is lowered down as a result of false such false imputations.

16. In the case of Mrs. Kumudesh Bhandari Vs. Ms. Gopika

Tapuriah and Another 1995 (3) Bom. C.R. 534 this Court has dealt

with the complaint of the defamation. There was matrimonial dispute

between the parties. The complainant has alleged that the accused

had filed a petition for custody of the children, wherein allegations of

unchastity were made with view to dis-entitle the complainant, to the

custody of the children. The Court observed that the case would fall

within the ambit of Exception 8 of Section 499 of the Indian Penal

Code.

17. Similarly, in the case of Gopi R. Mallya Vs. Pushpa (Smt.

1997 DGLS( Karnataka High Court.) 233, it was observed that the

statement made in the divorce petition cannot be said to be irrelevant

as the case of the accused was based on the said statement.

::: Uploaded on – 21/12/2017 23/12/2017 02:38:01 :::

( 17 ) Cri. W.P. No. 1217-2017

18. In the decision relied upon by the Advocate for the respondent

in the case of Jefffrey J. Diermeier And Another Vs. State of West

Bengal 2010 DGLS(Cri.)Soft. 1307, the Hon’ble Supreme Court has

observed that to constitute the defamation under Section 499 of the

Indian Penal Code, there must be imputation and such imputation

must have been made with intention to harming or having reason to

believe that it will harm the reputation of the person about whom it is

made. By the offence of the defamation, harm is caused to reputation

of the person. It would be sufficient to show that the accused is

involved or known or reason to believe that imputation made by him

would harm the reputation of the complainant irrespective of whether

the complainant actually suffered directly or indirectly from the

allegedly imputation. It was also observed that no imputation is said

to harm the person’s reputation unless that imputation directly or

indirectly lowers the moral or intellectual character of that person or

lowers the character of that person in respect of his caste or his

calling or lowers the credit of that person in the estimation of others.

The Hon’ble Supreme Court has also observed that, the stage of

recording of evidence had not reached and, therefore, in the absence

::: Uploaded on – 21/12/2017 23/12/2017 02:38:01 :::
( 18 ) Cri. W.P. No. 1217-2017

of any evidence on record, it is difficult to give a finding that the

accused has satisfied the requirement of ” good faith” and public

good” so as to fall within the ambit of the Tenth Exception to Section

499 of the Indian Penal Code. It will neither be possible nor

appropriate for this Court to comment on the allegations levelled by

Respondent No.2 and record a final opinion whether these allegations

do constitute defamation. Reading the complaint as a whole, I find it

difficult to hold that a case for quashing of the complaint under

Section 482 of the Code has been made out.

19. In the present case, on reading the complaint itself, it can be

seen that the required ingredients to constitute the offence of the

defamation are not made out. The primary requirement i.e. intention

to cause harm, is completely absent in the complaint. The reply was

addressed to the husband by the accused. There is matrimonial

dispute between the parties. The imputation was not addressed to

the complainant or her husband. The attempt of the accused was to

join the society of her husband for cohabitation. In the aforesaid

decision of the Hon’ble Supreme Court, it is also observed that it is

neither feasible nor possible to lay down rigid test for deciding

::: Uploaded on – 21/12/2017 23/12/2017 02:38:01 :::
( 19 ) Cri. W.P. No. 1217-2017

whether accused person acted in ” god faith” and for ” public good’

under the Exceptions. The question has to be considered on the facts

and circumstances of each case having regard to the nature of

imputation made, the circumstance on which it came to be made and

the status of the person, who makes the imputation as also the

status of the person against whom, imputation is rightly made. These

and most of other considerations would be relevant and required to be

considered for deciding the plea of ” good faith” and ”public interest”.

It was also observed that all these are questions of fact and a matter

for evidence.

20. In the present case on appreciating the factual aspects the

learned Magistrate dismissed the complaint, which decision was

reversed by the Sessions Court. In the facts and circumstances of the

present case, I find that the Sessions Court has committed an error

in setting-aside the order of the trial Court. The order passed by the

Trial Court was based on the complaint, verification statement, report

under Section 202 of the Code of Criminal Procedure, and, therefore,

interference in such an order was not warranted. The order of the

::: Uploaded on – 21/12/2017 23/12/2017 02:38:01 :::
( 20 ) Cri. W.P. No. 1217-2017

revisional Court also appears to be extraneous as it contains the

material, which was not spelt out in the complaint. The order of the

Sessions Court, therefore, requires to be set-aside. It would be abuse

of process of law to prosecute the petitioner. This is a fit case to

exercise inherent powers under Section 482 of the Code of Criminal

Procedure. Hence, I pass the following order.

ORDER

1. Criminal Writ Petition No. 1217 of 2017 is allowed.

2. The order passed by the learned Additional Sessions

Judge, Jalgaon, in Criminal Revision Application No. 202

of 2015 dated 5th April, 2017, is hereby quashed and set-

aside.

[PRAKASH D.NAIK, J.]

YSK/

::: Uploaded on – 21/12/2017 23/12/2017 02:38:01 :::

Leave a Comment

Your email address will not be published. Required fields are marked *