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Judgments of Supreme Court of India and High Courts

Sashanka Naidu W/O. Prakash Naidu vs Prakash Naidu S/O. M. Balkrishna … on 2 November, 2018

apl.774.17.jud 1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPLICATION [APL] NO.774 OF 2017

Applicant : X (Name withheld)
(Original Accused No.1)

— Versus —

Non-Applicant : Y (Name withheld)
(Original Complainant)

—————–
Shri G.L. Bajaj, Advocate for the Applicant
Shri R.M. Daga, Advocate for the Non-Applicant
—————–

CORAM : S.B. SHUKRE, J.

RESERVED ON : 30th AUGUST, 2018.

PRONOUNCED ON : 2nd NOVEMBER, 2018.

ORAL JUDGMENT :-

Admit. Heard finally by consent.

02] By this application, the legality and correctness of the

order of issuance of process, dated 24/07/2017, passed by the

Judicial Magistrate First Class, Court No.2, Nagpur, in Misc. Criminal

Complaint No.2286/2017 has been challenged. The applicant is

legally wedded wife of the non-applicant. A matrimonial dispute

has been brewing between the couple for quite some time and

before different fora one after another or simultaneously. Their

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relations got strained especially after the applicant left her

matrimonial house on 21/11/2016 taking along with her the

couple’s daughter. The applicant did not return home and it was

learnt by the non-applicant that she was staying at the house of

her parents at Rajahmundry (Andhra Pradesh). The non-applicant

tried his best to persuade the applicant to return to her

matrimonial home along with the daughter, but in vain. The

applicant too, on her part, filed a divorce petition bearing O.P.

No.7/2017 in the Court of Principal Civil Judge, Senior Division,

Rajahmundry. The Family Court on 26/04/2017 passed an order

directing, inter alia, grant of interim custody of the daughter for a

certain period of time to the non-applicant.

03] The order dated 26/04/2017 was challenged by the

applicant by filing a writ petition being Writ Petition No.2927/2017.

In this petition, certain statements were made by the applicant

casting aspersions on the potency and capacity of the non-

applicant. These statements disturbed the non-applicant and were

perceived by the non-applicant as per se defamatory.

04] Following the perception nurtured by the non-applicant,

the non-applicant filed a complaint case being Misc. Criminal

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Complaint No.2286/2017 for setting the law in motion for taking

action against the applicant for offences punishable under Sections

500 and 506 of Indian Penal Code (‘IPC’ for short). In the

complaint, a few more persons, being in-laws of the non-applicant,

were also added as accused persons and so the intervention of the

criminal court for taking action under Section 120-B of IPC against

all the accused persons was also sought. Section 34 of IPC was

also invoked.

05] Initially, the learned Magistrate deferred the issuance of

process and directed inquiry under Section 202(1) of the Code of

Criminal Procedure (‘Cr.P.C.’ for short). On perusal of the statement

of the non-applicant and statement of the witness examined by the

non-applicant and the allegations made in the complaint, the

learned Magistrate expressed his satisfaction that prima facie,

offences punishable under Sections 500 and 506(I) of IPC were

made out and, therefore, he issued process under these offences

against the applicant and other co-accused persons by the order

passed on 24/07/2017. Here, we are concerned only with the

applicant, who has been made accused No.1 in the criminal

complaint, as it is her, who has challenged in this application the

order dated 24/07/2017 passed by the learned Magistrate.

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06] Shri G.L. Bajaj, learned Counsel for the applicant

submits that this application filed under Section 482 of Cr.P.C. is

maintainable at law, as held in the case of Urmila Devi vs. Yudhvir

Singh – (2013) 15 SCC 624. He submits that the Hon’ble Apex

Court has made it clear that for challenging the order of issuance

of process, both remedies, one under Section 397 of Cr.P.C. and the

other under Section 482 of Cr.P.C., are available.

07] On merits of the matter, Shri Bajaj submits that the

impugned order has been passed without any application of mind.

He submits that it is well settled law that the alleged defamatory

statement must appear to be apparently defamatory and not upon

it’s minute consideration. He submits that it is not permissible in

law to read a few words from the whole sentence in isolation and

draw a convenient meaning. He submits that when a statement

was made by the applicant in Writ Petition No.2927/2017 that the

non-applicant was an impotent person, the applicant only meant

that due to some medical problem, the conception of the child was

not possible and that is the reason why after the words “impotent

person”, the applicant has also asserted like “the child was born by

medical ovulation period technique as was suggested by the

Gynecologist”. According to him, this statement, when read in it’s

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entirety, would not appear to be defamatory per se. On the

contrary, he maintains that it is a fact that the child was born

through a technique of medical ovulation period and it was

required to be resorted to because of some medical issues faced

by the non-applicant.

08] Shri Bajaj further submits that it is also well settled law

that whenever an allegation made in a litigation is found to be

true, it does not amount to defamation within the meaning of

Section 499 of IPC. He places his reliance upon the cases of Smt.

Raminder Kaur Bedi vs. Shri Jatinder Singh Bedi – ILR (1988) II

Delhi 633 and Kallumatam Gurubasayya vs. Sanna Setra

Siddalingappa in Criminal Revision Case No.1094 of 1939 decided

by Justice Lakshmana Rao on 22nd February, 1940.

09] Shri R.M. Daga, learned Counsel for the non-applicant,

taking an objection on the maintainability of this application filed

under Section 482 of Cr.P.C., submits that when the order of

issuance of process is revisable under Section 397 of Cr.P.C. and

that being the settled law, this application deserves to be

dismissed on the sole ground of not being maintainable before this

Court due to availability of alternate remedy. For his such

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submission, he places reliance upon the cases of (i) Om Kumar

Dhankar vs. State of Haryana another – (2012) 11 SCC 252; (ii)

Girish Kumar Suneji vs. Central Bureau of Investigation – (2017) 14

SCC 809; (iii) Rajendra Kumar Sitaram Pande vs. Uttam another

– (1999) 3 SCC 134.

10] The next submission of the learned Counsel for the non-

applicant is upon the merits of the case. According to him, no

interference from this Court in exercise of it’s power under Section

482 of Cr.P.C. is warranted in the present case for the reason that

when examined from any angle, the impugned order cannot be

considered to be an order, which is perverse or patently illegal or

contrary to law or causing grave prejudice or injustice to the

parties. He submits that when the complaint discloses that the

statements were made by the accused, which were defamatory

per se and were made, with intention or knowledge to harm that

such imputations will harm the reputation of the complainant,

prima facie case would have to be said as made out against the

applicant and, therefore, this Court should be very slow in

interfering with the order impugned here. He further submits that

whether there is sufficient evidence to establish guilt of the

accused for the offences for which process has been issued is a

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question that needs to be examined only after recording of

evidence at trial and it can never be a subject matter of a

proceeding under Section 482 of Cr.P.C. He also submits that even

such issues as to whether or not the statement has been made in

good faith or was for public good would only raise questions of fact

which, for their resolution, require evidence and therefore,

examination of such questions of fact at the stage of considering

the legality and correctness of order of issuance of process is not

permissible in law.

11] For the submissions so made on merits of the matter,

Shri Daga has relied upon the following cases :

i. Mohd. Abdulla Khan vs. Prakash K – 2018(2) Mh.L.J.

(Cri.)(S.C.)721.

ii. M.N. Damani vs. S.K. Sinha others – AIR 2001 SC
2037.

iii. Jeffrey J. Diermeier another vs. State of West Bengal
another – (2010) 6 SCC 243.

iv. Trichinopoly Ramaswamy Ardhanani, Bombay others
vs. Kripa Shanker Bhargava – 1990 CRI.L.J. 2616 (M.P.
High Court).

v. Thangavelu Chettiar vs. Ponnammal – 1966 Cri.L.J.

1149 (Madras High Court).

vi. Shri Sopullo Datta Naik Dessai vs. Shri Yeshwant Govind
Dessai another – 2010 ALL MR (Cri) 151.

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vii. M.K. Prabhakaran another vs. T.E. Gangadharan
another – 2006 CRI.L.J. 1872.

12] Shri Daga has also relied upon the case of State by the

Inspector of Police, Chennai vs. S. Selvi another – AIR 2018 SC

81, wherein it is held that in an application filed for discharge of

the accused, it is not permissible for the court to appreciate the

entire material on record as if the court is trying the criminal case

and the duty of the court is only to find out whether or not a prima

facie case has been made out.

13] In the cases relied upon by Shri Daga, learned Counsel

for the non-applicant, which are referred to in the paragraph No.9

it has been consistently held that an order of issuance of process is

revisable under Section 397 of Cr.P.C. This would make it clear to

us that remedy in the nature of a criminal revision application filed

under Section 397 of Cr.P.C. before the Sessions Court is certainly

available for an accused aggrieved by the order of issuance of

process against him. But the question is, whether availability of

such a remedy would, by itself bar the entry of the accused in this

Court through the door of Section 482 of Cr.P.C. or not.

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14] The answer to the question could be found out by

referring to the observations of the Hon’ble Apex Court in the case

of Urmila Devi (supra). The Hon’ble Apex Court by referring to it’s

various judgments rendered earlier has held that an order of

issuance of process or summons to an accused in exercise of it’s

power under Sections 200 to 204 of Cr.P.C. can always be a subject

matter of challenge under the inherent jurisdiction of the High

Court under Section 482 of Cr.P.C. Considering it’s previous cases,

Hon’ble Supreme Court held that in such a matter even the

revisional jurisdiction under Section 397 of Cr.P.C. would be

available to the aggrieved party. The exposition of the Hon’ble

Supreme Court in this regard appears in paragraph 21 to 23.

These paragraphs are reproduced thus :

21. Having regard to the said categorical position
stated by this Court in innumerable decisions resting
with the decision in Rajendra Kumar Sitaram Pande, as
well as the decision in K.K. Patel, it will be in order to
state and declare the legal position as under :

21.1. The order issued by the Magistrate deciding to
summon an accused in exercise of his power under
Section 200 to 204 Cr.P.C. would be an order of
intermediatory or quasi-final in nature and not
interlocutory in nature.

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apl.774.17.jud 10

21.2. Since the said position viz. Such an order is
intermediatory order or quasi-final order, the
revisionary jurisdiction provided under
Section 397,
either with the District Court or with the High Court can
be worked out by the aggrieved party.

21.3. Such an order of a Magistrate deciding to issue
process or summon to an accused in exercise of his
power under
Sections 200 to 204 Cr.P.C. can always be
subject-matter of challenge under the inherent
jurisdiction of the High Court under
Section 482 Cr.P.C.

22. When we declare the above legal position without
any ambiguity, we also wish to draw support to our
above conclusion by referring to some of the
subsequent decisions. In a recent decision of this court
in
Om Kumar Dhankar v. State of Haryana, the
decisions in Madhu Limaye, V.C. Shukal, K.M. Mathew,
Rakesh Kumar Mishra v. State of Bihar ending with
Rajendra Kumar Sitaram pande, was considered and by
making specific reference to para 6 of the judgment in
Rajendra Kumar Sitaram Pande, this Court has held as
under in para 10: (Om Kumar Dhankar Case)

In view of the above legal position, we hold, as it
must be, that revisional jurisdiction under
Section 397
Cr.P.C. was available to Respondent 2 in challenging the
order of the Magistrate directing issuance of summons.

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The first question is answered against the appellant
accordingly.

23. Therefore, the position has now come to rest to
the effect that th revisional jurisdiction under
Section
397 Cr.P.C. is available to the aggrieved party in
challenging the order of the Magistrate, directing
issuance of summons.

15] So, the position of law now is that both remedies, one

under Section 397 of Cr.P.C. and other under Section 482 of Cr.P.C.,

are available. The applicant-accused No.1 has chosen the latter

remedy and in view of the law laid down by the Hon’ble Apex Court

in the case of Urmila Devi, it is not possible to hold that the choice

so exercised by the applicant is bad in law or was something not at

all available to her at the threshold itself. The objection about the

maintainability of this petition is, therefore, rejected.

16] The principles of law which I find to be useful for

considering merits of the case and which arise from such cases,

relied upon by the learned Counsel for the non-applicant, as that

of Mohd. Abdulla Khan, Jeffrey J. Diermeier, Trichinopoly

Ramaswamy Ardhanani, Thangavelu Chettiar, Sopullo Datta Naik

Dessai, M.K. Prabhakaran and S. Selvi (paras 11 and 12 supra) are

as follows :

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[I] The essentials of offence of defamation are that

there should be some imputation harming the reputation of a

person and publication of such imputation by communicating it to

a person other than a person against whom the imputation is

made.

[ii] Existence of the aforestated two essentials of the

offence of defamation must be ascertained from the allegations

made in the complaint and other material produced on record, if

any, by applying the test of face value or prima facie worth of the

material on record taken as it is, and a detailed analysis of the

material available on record is not permissible.

[iii] The question as to whether or not there is

sufficient evidence to establish guilt of the accused or the question

as to whether or not the imputation has been made in good faith

or for public good or the question as to whether or not the

imputation depicts the factual position, all are the questions which

must be answered on merits of the case after a detailed evidence

is available and not at the stage of issuance of process.

[iv] A defamatory statement made in the plaint or

written statement or a reply gets published the moment such

plaint or written statement or reply is filed in a Court of law.

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These principles of law would have to be borne in mind

while examining the impugned order for it’s legality or otherwise.

17] Of course, Shri Bajaj, learned Counsel for the applicant

relying upon the case of Raminder Kaur Bedi has submitted that

when the alleged defamatory imputation is made a ground for

seeking divorce and is upheld by the civil court, conviction of the

accused for an offence of defamation would not be possible and,

therefore, the interest of justice would require that the criminal

case is stayed till disposal of the divorce case. The learned

Counsel for the non-applicant submits that this case does not

involve any issue about stay of the criminal proceedings.

18] I think, the learned Counsel for the respondent is right.

What has been challenged in this application is the order of

issuance of process and no issue about the necessity of staying the

trial of the criminal case has arisen in these proceedings and,

therefore, the case of Smt. Raminder Kaur Bedi would not help the

applicant in any manner.

19] Shri Bajaj has also submitted that when the complaint

is founded on an allegation in a plaint filed in a civil proceeding

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and has been found to be false, the offence would not be that of

defamation punishable under Section 500 of IPC, but an offence

relating to giving of false evidence punishable under Section 193

of IPC as held in the case of Kallumatam (supra). The learned

Counsel for the non-applicant would like to express his disapproval

to the submission so made by the learned Counsel for the

applicant.

20] The disagreement expressed by the learned Counsel for

the non-applicant, here also, I would say, is not misplaced. Giving

of false evidence is a different and distinct offence from that of the

offence of defamation punishable under Section 500 of IPC. The

offence of giving of false evidence made punishable under Section

193 of IPC has been defined under Section 191. The definition

indicates that any person who is bound by law or oath to state the

truth or who is bound by law to make a declaration upon any

subject, makes any statement which is false and which he either

knows or believes to be false is said to give false evidence. So, it

is clear that the offence of false evidence is committed when the

person is required to give evidence or make a declaration upon a

subject, as mandatorily required under the law. This offence is

about making false declaration or statement knowing it to be false

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apl.774.17.jud 15

at a time when the law or the oath administered to such a person

binds him to give a true disclosure of a fact and such a person,

inspite of knowing his responsibility under the law, when chooses

to speak or declare falsehood, is said to commit offence of giving

false evidence. So, the offence is essentially of something which is

a matter of evidence or law and not of pleadings. If any

defamatory statement is made in pleadings, what would arise

would be an offence of defamation punishable under Section 500

read with Section 499 of IPC and not of offence of giving false

evidence punishable under Section 193 read with Section 191 of IPC.

21] In the present case, the offence of defamation has,

prima facie, arisen from pleadings and not from evidence. In

Kallumatam, the facts are not stated, but what can be inferred

from the observations of Court is that no offence of defamation

was involved and only offence of giving of false evidence was

attracted as during course of evidence, a false allegation was

made by a party. For the offence of giving of false evidence,

complaint by Court is necessary or otherwise cognizance cannot

be taken. But, no complaint was filed by the Court and, therefore,

the Court observed that a party cannot be permitted to evade that

provision of law which requires Court to file a complaint by filing a

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complaint of defamation. These facts would indicate that

Kallumatam has no application to the facts of this case.

22] Keeping in mind the principles of law, discussed earlier

and found to be applicable, let us now consider the merits of the

case.

23] A perusal of the complaint and the statements of the

non-applicant and his one witness, both made on oath, show that

there is an imputation made by the applicant in the writ petition

that she filed in this Court, which was Writ Petition No.2927/2017.

They also show that prior to filing of the petition, the applicant had

issued a threat of doing something so as to injure reputation of the

non-applicant, if the non-applicant conducted himself the way he

was asked not to by the accused persons. The imputation made

against the non-applicant, in order to comprehend it’s prima facie

worth, requires consideration at this stage. It reads thus :

“The petitioner wanted to avoid writing this in this
petition but the conduct of the respondent compels her
to write that the respondent is an impotent person and
the child was born by medical ovulation period
technique as was suggested by the gynecologist.”

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24] Reading the aforestated allegation as it is and without

adding anything to it or subtracting anything from it prima facie,

one gets an impression that it is per se defamatory in character

and has been, prima facie, calculated to cause harm or injury to

the reputation of the non-applicant. It also gives an impression that

apparently it has been made with consciousness about the

repercussion that such a statement would have on the life of the

non-applicant. Even if the expression “impotent person”, as the

learned Counsel for the applicant would like this Court to do, is

read in all its contextual setting, in particular, in the context of the

birth of the child by adopting a medical procedure on the

suggestion of the Gynecologist, still the apparent harm that the

expression “impotent person” causes, is not diluted or washed out.

This is for the reason that prima facie the word “impotent” when

understood in it’s plain and grammatical sense, reflects adversely

upon the manhood of a person and has a tendency to invite

derisive opinions about such person from others and, therefore,

use of such word and its publication as contemplated under

Section 499 of IPC would be sufficient to constitute, in a prima

facie manner, the offence of defamation punishable under Section

500 of IPC. Now, if the non-applicant submits that this word has

been used by her in some different sense denoting medical

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condition of the non-applicant affecting the process of conception,

it would be a matter of evidence to be proved accordingly. At this

stage, the meaning apparently indicated by the word would have

to be taken as it is. Then, such imputation has been made by filing

a writ petition and, therefore, the other ingredient of publication is

also fulfilled in the present case. Therefore, prima facie, the offence

punishable under Section 500 of IPC is made out in this case.

25] As regards the offence punishable under Section 506 of

IPC, which is about criminal intimidation of the complainant, I must

say, even on this count, the allegations contained in the plaint and

the material available on record, prima facie, are sufficient to show

that this offence too has been constituted in the present case.

There are allegations supported by the material brought on record

that prior to the filing of the writ petition, the applicant had issued

threat to the non-applicant to damage or injure his reputation. The

offence of criminal intimidation has been defined under Section

503 of IPC and it requires a threat given by the accused to the

complainant of such nature as would cause injury to the

complainant’s reputation or property or another person in whom

the complainant is interested and it must be done with intent to

cause alarm to the complainant or such other person or make the

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complainant or such other person do or omit to do something

which otherwise he would not do or would omit to do under the law

of land. The material as disclosed by the allegations in the

complaint and the statement of the witnesses, in my view, is

sufficient to prima facie make out the case for proceeding further

in the matter under Section 506(I) of IPC as well.

26] All these aspects of the matter have been properly

considered by the learned Magistrate and, therefore, I do not see

any reason to make any interference with the impugned order.

The application stands dismissed.

(S.B. SHUKRE, J.)

At this stage, the learned Counsel for the applicant
makes a prayer that the exemption granted by this Court to the
applicant from her personal appearance before the trial Court be
extended for a further period of eight weeks.

The prayer is opposed by the learned Counsel for the
non-applicant.

Considering the fact that Diwali festival is round the
corner, it is appropriate that the prayer is granted.

Prayer is granted.

(S.B. SHUKRE, J.)
*sandesh

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