Sunday 20 May 2012

Malice an intent to defame is a must for charge of defamation/it are absent/prosecution quashed.

Allahabad high court Criminal Revision No.2929 of 2006

Dr. Vishnu Dutt Agarwal .....................Revisionist


State of U.P. and another ................ Respondents.

Hon'ble Vinod Prasad, J.

Challenge in this revision by the revisionist Dr. Vishnu Dutt Agarwal is to his summoning order dated 12.4.2006 passed by C.J.M. Muzaffarnagar in Complaint Case No.1778/9/2006, Dr. Karan Pundir Vs. Dr. Vishnu Dutt Agarwal, for offence u/s 500 I.P.C. and entire proceeding of the aforesaid trial.
A brief resume of the unfolded background facts indicate that complainant Dr. Smt. Karan Pundir was a demonstrator (Gynaecology & Obstractics) in Swami Kalyan Dev Rajkiya Aurvedik College, Rampur District Muzaffarnagar, and was also running Aishwarya Nursing Home at her residence in house no.154 Mohalla Brahmpuri, P.S. Civil Lines, Muzaffarnagar. Revisionist accused was the acting principal and superintendent of the said college and hospital and resided in House No.189/27 Mohalla Ompuri, P.S. Kotwali City, District Muzaffarnagar. In her estimation complainant was educated and belonged to a respectable family. Her father Rajpal Singh Pundir is a practising advocate in district court, Muzaffarnagar, whereas her husband Rajesh Kumar Chauhan had superannuated from Supervisor post in Bharat Electronics in 2004. Complainant is an income tax payee and her PAN No. is ADAPP 1909 H. In the estimation of general public, she was a reputed doctor, a gentle human being and a courteous family doctor and was respected as such, her husband was also respected because of her reputation. To defame the complainant and tarnish her family prestige revisionist accused, who harboured animosity against her, had, knowingly, sent frivolous and false complaints against her to the Director, Ayurvedic and Unani Services, Lucknow, U.P., because of which, complainant was physically and economically tormented and her image was tarnished in estimation of general public. All this was done for faux pas and

temerity as an abash. Revisionist accused had also publicised those allegations and had even tendered them before the City Magistrate, in an inquiry, which was being conducted against him, when the City Magistrate had no concern with such writings. This was done by the accused revisionist only with the motive to bring down and lower complainant's social prestige about which many rumours were being aired. In one of the applications, dated 25.4.2005, it was mentioned" subordinating administrative authorities because her husband and his caste Thakur he had got lots of influence on the local goons." In another application dated 6.5.2005, it was mentioned "otherwise nursing home has got illegal income and property and therefore, had no need for any loan and because of being a woman and her husband having influenced with the local goons, to harass the principal that she had applied to withdraw GPF." Complainant had further alleged that for a period of an entire month she was under mental shock and stress for which she had got herself treated medically. After reading such allegations general public started thinking of complainant and her husband as anti-social elements, who earn livelihood by illegal means. Her nursing home income dwindled because of aforesaid allegations.
With above allegations complaint was filed by respondent complainant against the revisionist, in which two persons, Taraspal Singh, Advocate and Arvind Kumar, Advocate, were cited as witness.
Learned C.J.M., registered the complaint as complaint case no. 1778/9/2006, Dr. Karan Pundir Vs. Dr. Vishnu Dutt Agarwal and recorded the statement of the complainant under Section 200 Cr.P.C. on 28.1.2006, in which, complainant reiterated her allegations inked in her complaint. During an inquiry, under section 202 Cr.P.C., learned C.J.M., recorded statements of Arvind Kumar, Advocate, P.W.1 and Taras Pal Singh, P.W.2, who had supported complainant's allegations. As documentary evidences, complainant had filed copies of letters written by the accused to the Director Ayurvedic and Unani Services, Lucknow, U.P. and to the City Magistrate, Muzaffarnagar and some other letters.
Learned C.J.M. on the strength of oral and documentary evidences opined that, prima facie, offence of defamation was disclosed and there was sufficient ground to proceed against accused revisionist, and therefore, had summoned him to stand trial for charge u/s 500 IPC, for defamation, vide impugned summoning order dated 12.4.2006, which is now the subject matter of the instant revision.
I have heard learned counsel for the revisionist as well as Sri P.S. Pundir, learned counsel for the complainant respondent and Sri Patanjali Mishra, learned AGA for the State in support and opposition of this revision.
Learned counsel for the revisionist submitted that from the mentioned words in the complaint no defamation of the complainant is disclosed. It was evident that, in fact, the words mentioned in the complaint, were extracts of letters written by the revisionist to the higher departmental officer, Director, Ayurvedic and Unani Services, Lucknow, U.P., with a motive to curb insalubrious practise of not taking classes and devoting time to the hospital and instead running a nursing home, with desired objective for better functioning of the hospital and college. A copy of those letters have been annexed by the revisionist as annexure Nos. 5 and 6 to this revision. Inviting attention of the Court on these annexures, it was submitted that, the truth of the matter was that the complainant had applied for withdrawing of her GPF money but the same could not be paid to her, as her application was pending before the Director's office and for getting that money, she was pressuring the revisionist Principal with the help of staff and students. It was further mentioned in one of the letters that because of her pressure tactics, administration of the college and the hospital had become difficult. It was further disclosed that complainant used to run her own nursing home and she did not take any classes. For the said activities, even, oral complaint was made against her. In annexure No.5, it was mentioned that complainant Karan Pundir had used derogatory language in her application for withdrawing GPF money, especially when she was well aware of the fact that her pass book had not been received in the college. Accused revisionist had sought directions from Director, Ayurvedic and Unani medicine, in that respect. It was also sketched by the revisionist, in those annexures, that, on 19.4.2005 complainant had absented herself till 11 a.m., when she was marked absent by the revisionist, but inspite of that, subsequently at 11 a.m., she had signed on the attendance register, showing her presence at 9 a.m. Similarly, on 25.4.2005 at 10.30 a.m. she was marked absent, but subsequently, she signed attendance register showing her presence at 9.30 a.m. Revisionist had further elicited in those letters that the activities of Dr. Karan Pundir(Complainant) indicated that she likes to "disobey Administrative Officers and because of thakur caste her husband has got great influence in local goons" and therefore, no patient or employee is ready to narrate truth against her. Annexure No.5, also slated that complainant used to come to the hospital at 2 p.m. and returns back without devoting much time and when an explanation was called for from her regarding such dereliction of duty, she replied alleging malafides. It was further mentioned that some women employees also follow complainant's suit and disobey orders by accused revisionist, the Acting Principal. These allegations were also repeated in annexure no.6, wherein it was also mentioned that purpose for withdrawing GPF was not mentioned by the complainant and her passbook was not available and she had used derogatory and defamatory language. It was also penned down, in annexure no.6, that complainant had no requirement of her GPF funds, and, had her requirement being genuine, she would have applied for it on a correct proforma form meant for the said purpose. Besides above, it was also mentioned in that letter, annexure no. 6, that nursing home had got illegal income and property and her (complainant's) husband being a thakur had got influence over local goons, therefore, to torment and harass the Principal, that she had applied for withdrawal of her GPF, which is clear from the language used by her. It was also mentioned therein that, in respect of bigamy committed by her and regarding other properties, she(Complainant) had not intimated the college, which was a breach of Employees Conduct Rules, 1956. It is in these two complaints, which was filed by the revisionist, that extracting one or two lines, that present complaint was filed and hence in fact there was no case of defamation. Complaint was made to the higher officer for taking correctional measures against the complaint and therefore, no offence is disclosed against the revisionist accused and his case is squarely covered under seventh, eighth and ninth exceptions of section 499 IPC. It is further pointed out that, prior to the filing of complaint, revisionist accused had already filed applications against her before the Director, Ayurvedic and Unani Services, Lucknow, U.P. and therefore, to seek vengeance and with vindictive intention that the complaint was filed by the complainant. It was concludingly submitted that the present proceedings is nothing but vexatious, purposive, malafide and was instituted only to seek vendetta and therefore, impugned summoning order be quashed including revisionist prosecution.
Refuting revisionist submissions and snipping it, complainant's counsel submitted that the words mentioned in the complaint were defamatory and derogatory in nature and therefore, the complaint cannot be quashed and revisionist prosecution should be allowed to proceed. It was next submitted that, to establish the protection of exceptions, trial must be permitted to proceed as, at it's threshold, it cannot be accepted as gospel truth to scuttle a legitimate prosecution.
I have considered rival submissions and have vetted oral and documentary evidences including affidavits filed by both the sides. Some common facts, which are not disputed are that the accused is the Principal (Acting) of Swami Kalyan Dev Rajkiya Aurvedik College, in which complainant was working as Instructor (Gynaecology & Obstractics). It is also not disputed that respondent complainant runs a nursing home in her house namely Aishwarya Nursing Home. It is also not disputed that the offending words are extracts of two complaints made by the accused revisionist to the higher superior officer i.e.: Director, Ayurvedic and Unanai medicine, which were dispatched prior to the filing of the complaint by respondent complainant. From the contents of these letters, the genuineness of which are not denied, it is evident that the same were in respect of professional conduct of the complainant respondent no.2 and her behaviour. It is also admitted that respondent complainant had applied for withdrawal of her GPF money but she was not getting it, as her pass book was not with the college and the matter was pending with the Director, regarding which some directions were also sought by the accused revisionist. In such background facts, letters written by the accused revisionist, has to be read a whole to decipher true intention of the writer to determine as to whether he wanted to defame the complaint or his intention was only to curb the insalubrious, unethical practise. For determining above aspects, letters written by the accused revisionist has to read, not in isolation, but as whole with prefix and suffixes of extracted words. Summating from that point of view, it becomes evident that whatever was mentioned by the accused revisionist was that, being thakur by caste complainant's husband had got influence over local goons, because of which nobody was ready to divulge the truth against the complainant, who was not taking interest in teaching classes and was not attending the hospital and was marking her attendance ante timed. This expression was mentioned by the accused revisionist not with the idea to defame the complaint but to tune-in the working of the college and the hospital in it's functioning. It also transpires that the complainant was more worried because of dwindling nursing home income rather than the uttered words. According to her own version, she waited for a whole month, as she was mentally tormented. She herself is a doctor by profession and such her ipse dixit does not appeal to common sense. Her father-in-law is an advocate and therefore, she has an easy access to the courts of law. Being a Principal, it was the responsibility of the accused revisionist to maintain the decorum, dignity, smooth running of the college and the hospital. With such an idea in mind if the accused revisionist had written above referred sentences, while pointing out malpractices adopted by the complainant, it was not because he wanted to defame her, but because he was imbibed with the idea of rectifying the misdeed for the betterment of the institution. No personal allegation was levelled by the accused against complainant except that she had signed ante time on attendance register. As argued, case of the accused revisionist is covered in more than one exceptions of Section 499 IPC. The Director Medical Services is a superior authority and if a letter was addressed to him by the Principal of an institution, it does not necessarily mean that the Principal wanted to defame the demonstrator, who was a subordinate staff. This is absolutely clear from the illustrations, which is mentioned in seventh exception to Section 499 IPC. Case of the revisionist accused is also covered under eighth exception, as the Director has got a lawful authority over the Principal and the Demonstrator in Ayurvedic and Unani Medical College.
Moreover, I am of the view that ingredients for making out offence of defamation u/s 500 IPC are lacking in the instant case. This aspect is also clear from the statutory illustrations mentioned in eighth exception to Section 499 IPC. On such evidences, as is mentioned herein above, allowing the revisionist to face trial and go through the rigmarole of criminal trial procedure will be doing injustice to him. No doubt exceptions to section 499 IPC has to be established during a proper trial but this does not divest this court to exercise it's revisional power to curb a malafide prosecution when no offence is disclosed against the accused and the summoning order was passed in a cursory manner. This is a dispute between a Principal and a demonstrator. Accused revisionist had no personal axe to grind against the complainant. It seems that because of the strict attitude by the Principal and some technical difficulties in disbursing GPF funds that the complaint was lodged with ulterior motives. Letter written by the revisionist only expresses his apprehensions that because of connection of complainant's husband no body is ready to state the truth against her. This was only with an intention to tone down working of the college and the hospital. In this respect some of the exemplar decisions, which can be relied upon are as follows:-
In G. Janardhana Reddy v. A. Narayana Reddy and Anr:2010 Cr.L.J. 2660 it has been held as under:-

"In the case on hand, intention of the petitioner is evident that he made the same with an intention to preserve the disputed site to the deity and not with an intention to harm reputation of the first respondent. In that view of the matter, pleadings i.e., written statement, counter and appeal grounds and evidence by way of affidavit in this case cannot be defamatory in nature."
In Rajendra Kumar Sitaram Pande and others vs. Uttam and another: AIR 1999 SC 1028 it has been held by the apex court as under:-
"7. The next question that arises for consideration is whether reading the complaint and the report of the Treasury Officer which was obtained pursuant to the Order of the Magistrate under sub-section (1) of Section 201 can it be said that a prima facie case exist for trial or exception 8 to Section 400 clearly applies and consequently in such a case, calling upon the accused to face trial would be a travesty of justice. The gravamen of the allegations in the complaint petition is that the accused persons made a complaint to the Treasury Officer, Amravati, containing false imputations to the effect that the complainant had come to the office in a drunken state and abused the Treasury Officer, Additional Treasury Officer and the Collector and circulated in the office in the filthy language and such imputations had been made with the intention to cause damage to the reputation and services of the complainant. In order to decide the correctness of this averment, the Magistrate instead of issuing process had called upon the Treasury Officer to hold inquiry and submit a report and the said Treasury Officer did submit a report to the Magistrate. The question for consideration is whether the allegations in the complaint read with the report of the Magistrate make out the offence under Section 500 or not. Section 499 of the Indian Penal Code defines the offence of defamation and Section 500 provides the punishment for such offence. Exception 8 to Section 499 clearly 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. The report of the Treasury Officer clearly indicates that pursuant to the report made by the accused persons against the complainant, a departmental inquiry had been initiated that the complainant was found to be guilty. Under such circumstances the fact that the accused persons had made a report to the superior officer of the complainant alleging that he had abused to the Treasury Officer in a drunken state which is the gravamen of the present complaint and nothing more, would be covered by exception 8 to Section 499 of the Indian Penal Code. By perusing the allegations made in the complaint petition, we are also satisfied that no case of defamation has been made out. In this view of the matter, requiring the accused persons to face trial or even to approach the Magistrate afresh for reconsideration of the question of issuance of process would not be in the interest of Justice. On the other hand in our considered opinion this is a fit case for quashing the order of issuance of process and the proceedings itself. We, therefore, set aside the impugned order of the High Court and confirm the order of the learned Sessions Judge and quash the criminal proceeding itself."
In Vedurumudi Rama Rao vs. Chennuri Venkat Rao and another:1997 Cr.L.J. 3851 it has been held as under:-
"9th exception :- Imputation made in good faith by person for protection of his or others interest. - It is not defamation to make an imputation on the character of another provided that the imputation has to be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good."
This exception relates to private communications which a person makes, in good faith, for the protection of his own interest, or of any other person, or for the public good. Admittedly, the petitioner-accused herein issued the said Circular only on the instructions from the Central and Zonal offices by repeating what he was asked to communicate to his Branch Managers in the region. The learned counsel for the petitioner also made available the letters issued by the Central and Zonal Offices directing the Regional Managers to issue the said Circular. Therefore, there is nothing on record to hold that the petitioner-accused had issued the said Circular with any malice against this complainant or to cause any damage to his reputation as such. He issued the said Circular at the instance of the Central and Zonal Office. Moreover, it is a confidential Circular not meant for the public at large, but to his Branch Managers to be cautious while dealing with the complainant and others mentioned in that Circular in their business transactions. Moreover, the said Circular had emanated after due investigation done by the Vigilance Department of the Central Office of Andhra Bank. There cannot be any doubt that such a Circular was issued only in good faith and also for the public good and to safeguard the interest of the public at large. In a case of this type, the truth of the imputations made against the complainant need not be proved by an accused person claiming the privilege under exception 9. Therefore, even if the allegations made in the complaint are taken to be true, the offence under Section 500, I.P.C. is not made out as the exception No. 9 is squarely applicable to the facts in this case and as laid down in "State of Haryana v. Bhajan Lal, 1992 Suppl (1) SCC 335 : (1992 Cri LJ 527 quoted supra, the proceedings are liable to be quashed."
In Darusing Durgasing v. State of Gujarat and Anr:2006 CR.L.J. 720 it has been held as under:-

"In any case, in judicial proceeding certain facts are stated on oath and in the interest of T.L.A. and all other workers. Moreover, the said averments were made in good faith and without any malice. This Court is the proper forum where the proceedings are pending and ultimately, the Company Application No. 364 of 1998 filed by the Respondent No. 2 was rejected by this Court. The alleged averments and allegations in the affidavit-in-reply are, therefore, covered by the exceptions 7, 8, 9 to S. 499 and hence, no case is made out for defamation punishable under Section 500 of IPC.
14. Looking to the authorities relied upon by Mr. Naik, it appears that the petitioner's case is squarely covered by Exceptions 7, 8 and 9 of Section 499 of the Criminal Procedure Code and since the complaint does not disclose any offence against the present petitioner there is no need to send the petitioner to face the trial, as it would amount to travesty of justice. When submissions are made in good faith without any malicious motive, the person should not be sent to face criminal trial.
15. Looking to the overall facts and circumstances of the case and considering the relevant law on the subject, the Court is of the view that the complaint filed by the respondent No. 2 does not disclose any offence punishable under Section 500 of IPC against the present petitioner and complaint is accordingly quashed and set aside."
In Valmiki Faleiro vs. Mrs. Lauriana Fernandes and others, etc.:2005 CR.L.J. 2498 it has been held by the apex court as under:-
"22. The essence of offence of defamation is the harm caused to the reputation of a person. Character is what a person actually is and reputation is what neighbours and others say he is. In other words, reputation is a composite hearsay and which is the opinion of the community against a person. Everyone is entitled to have a very high estimate of himself but reputation is the estimation in which a person is held by others. The commission of offence of defamation or publishing any imputations concerning any person must be "intending to harm or knowing or having reason to believe that such imputation will harm, the reputation of such person (emphasis supplied.). The notice in question on the face of it does not contain any such imputation which could be said to harm the reputation of the complainant. On the other hand, a bare reading of the said notice shows that it has been published by accused Nos. 1 and 2 with a view to protect the right to the property which they believe they have a right. A person reading the said notice may at first flush be a little amused that the said accused are claiming a set of villages rather than think that it is published with a view to defame the complainant. All that the said accused have conveyed by the said notice is that the property/properties do not belong to the complainant but belong to them and that anyone dealing with the complainant will be doing so at their own risk. The contention that the said notice is per se defamatory and that it attributes dishonest intention that the complainant lacks business character and propriety appears to be a figment of the complainant's imagination. Such a conclusion cannot be culled out by a normal prudent person from a reading of the said notice which apparently was published by the said accused Nos. 1 and 2 to protect a right which they believe they have to the property and with a view to warn others that in case they enter into any transaction of sale with the complainant they would be doing so at their own risk and consequences. A reading of the notice, on the face of it, does not show that it was published with intention or knowledge to harm the reputation of the complainant. In my view, the learned Sessions Judge was right in exercising his discretion to quash and set aside the Order issuing process against the aforesaid accused."
In Harbhajan Singh versus State of Punjab :AIR 1966 SC 97 it has been held observed by the apex court as under:-
"21. Thus, it would be clear that in deciding whether an accused person acted in good faith under the Ninth Exception, it is not possible to lay down any rigid rule or test. It would be a question to be considered on the facts and circumstances of each case - what is the nature of the imputation made; under what circumstances did it come to be made; what is the status of the person who makes the imputation, was there any malice in his mind when be made the said imputation; did he make any enquiry before he made it; are there reasons to accept his story that he acted with due care and attention and was satisfied that the imputation was true ? These and other considerations would be relevant in deciding the plea of good faith by an accused person who claims the benefit of the Ninth Exception."
In view of above exposition of law, when the facts of the present case are summated and vetted, there remains no doubt that the words mentioned in the complaint were not with an intention to defame the complainant or harm her reputation or lower her prestige in estimation of general public and there was total absence of any malice and mens rea and it were inked with an idea to bring about a betterment in the college and the institution and to curb the unholy practice, if at all, it was continuing. A principal was entitled to express his apprehension to the Director, Ayurvedic Unani Medical Services and, therefore, in my humble opinion, it is not a case for criminal prosecution of the revisionist accused , as there is absence of material to disclose offence u/s 500 I.P.C. It is one of those cases which falls in more than one category of apex court decision in State of Haryana Versus Bhajan Lal :AIR 1992 SC 604 wherein apex court has held as under:-
"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F. I. R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
Revisionist prosecution seems to be tainted with malafide and vexatious which seems to have been launched with ulterior motives besides the fact that no offence is disclosed in the complaint.
Concluding discussion, revision is allowed. Impugned summoning order and the proceedings of the Complaint Case No.1778/9/2006, Dr. Karan Pundir Vs. Dr. Vishnu Dutt Agarwal, u/s 500 I.P.C. are hereby quashed.
Let a copy of the judgment be certified to the trial court for it's intimation.
Dt.11.4. 2012
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