Sunday, 11 November 2018

Whether calling husband impotent in pleading amounts to offence of defamation?

 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.

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

CORAM : S.B. SHUKRE, J.

PRONOUNCED ON : 2 nd NOVEMBER, 2018.



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

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 nonapplicant.
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

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.

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

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

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 nonapplicant
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

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.

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.

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.

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.

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 :

[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.

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

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

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

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.”

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

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

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.)

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