(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
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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
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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
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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.
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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
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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
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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
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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-
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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
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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
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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
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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
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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
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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
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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.
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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.
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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
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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
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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
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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/
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