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Indian Penal Code, 1860 : Sections 295-A, 499, 500 r/w. 34-Defamation-Interview to a film magazine- Appellant making statements against a particular community-Alleged to be deliberate, malicious and outraging the religious feelings of that community-Complaint-Magistrate taking cognizance and issuing notice to appellant-Challenge before High Court which held that no offence under S.295A made out but the allegations constitute prima facie offence triable by Magistrate under S.500 =On appeal held the allegations do not contain essential facts constituting offence under S.295A-The complaint filed before the Judicial Magistrate Pune does not contain allegations to constitute an offence of defamation punishable under S.500-Hence that complaint quashed-Complaint filed before the Judicial Magistrate Nasik-High Court was right in refusing to quash the complaint under S.500. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1696 of 1996. =, 1996( 5 )Suppl.SCR 771, 1996( 6 )SCC 263, 1996( 6 )SCALE769 , 1997(10 )JT 469

Mumbai.HighCourt.1

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PETITIONER:
SHATRUGHNA PRASAD SINHA

Vs.

RESPONDENT:
RAJBHAU SURAJMAL RATHI & ORS.

DATE OF JUDGMENT: 10/09/1996

BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
FAIZAN UDDIN (J)
G.B. PATTANAIK (J)
ACT:

HEADNOTE:

JUDGMENT:
O R D E R
Leave granted.
Though the respondents were duly served and on an
occasion appeared in person, subsequently they did not
appear. Resultantly, we requested Shri Sushil Kumar Jain,
Advocate of the Bar to assist the Court as amicus curiae. We
place on record our deep appreciation for the valuable
assistance rendered by him.
This appeal by special leave arises from the judgment
and order of the High Court of Bombay made on January 21,
1991 in Crl.Writ Petition No. 1545 of 1990. The facts
relevant for the purpose of this case and we proceed on the
basis thereof are that allegations were made in the
complaint filed by the respondents in the Courts of
Magistrate at Pune and Nasik; we deal with those allegations
as they constitute offence for which the Judicial
Magistrate, Ist Class, could take cognizance. In paragraph 2
it is narrated that the complainant-respondent was a social
activist belonging to the Marwari Community, and that the
respondent second accused respectively is the editor and
publisher of Stardust, Film Magazine. An interview she had
with the appellant in June 1989, came to be published at
page 82 of that magazine. During the course of the
interview, the appellant was alleged to have made statements
outraging the religious feeling of the Marwari community and
also defamed the members of Marwari community as a class. In
the complaint filed at Pune, what he has stated is as under:
“The Complainant submits that in
June 89 the Accused No.1 has with
deliberate and malicious intention
of outraging the religious feelings
of Marwari Community made the said
statement. By the statement of the
Accused No,1, the structure of
National Integrity is being
paralysed. The feelings of Marwari
Community also being hurt by the
Statement made by the Accused No.1.
The Statement of Accused No.1 goes
to show that Marwari Community is
not a Class belonging to India and
they have not faith and love
towards India, their mother land.
It is implied from the said
statement that Marwaris are
traitors and enemies of India. So
also accused No.2 has also printed
and published the said statement in
‘Star Dust’ Magazine of 1989 with
deliberate and malicious intention
of outraging the religious feelings
of Marwari Community.”
The rest of the paragraphs are only the consequential
narration of the allegations in paragraph 3. According to
the respondents, these allegations constitute offence
punishable under Section 295-A and Section 500 read with
Section 34 of the India Penal Code [IPC, for short]. The
Magistrate had taken cognizance and issued notice to the
appellant for appearance. When it was challenged in the writ
petition, the learned single Judge of the High Court had
held that on a reading of the complaint as a whole, no
offence under Section 295A could be made out; however, the
allegations constitute prima facie offence triable by the
Magistrate under Section 500, IPC. Thus, these appeals by
special leave.
Section 295A of the IPC envisages the essential
ingredients of the punishment and provides that whoever,
with deliberate and malicious intention of outraging the
religious feelings of any class of citizens of India, by
words, either spoken or written, or by signs or by visible
representations or otherwise, insults or attempts to insult
the religion or the religious beliefs of that class, shall
be punished with imprisonment of either description for a
term which may extend to three years, or with fine, or with
both. The quoted para does not contain essential facts
constituting the offence.
Section 200 of the Code of Criminal Procedure, 1908
[Cr.P.C., for short] in Chapter XV provides as under:
“A Magistrate taking cognizance of
an offence on complaint shall
examine upon path the complainant
and the witnesses present, if any,
and the substance of such
examination shall be reduced to
writing and shall be signed by the
complainant and the witnesses, and
also by the Magistrate provided
that when the complaint is made in
writing, the Magistrate need not
examine the complainant and the
witnesses.”
The High Court may take cognizance of any offence under
Section 190(1) (a) upon receiving a complaint containing
facts which constitute such offence. It is a matter of
discretion. Criminal proceedings are initiated by a
Magistrate taking cognizance of the offence. Taking
cognizance of the offence would include the intention of the
Magistrate of initiating judicial proceedings against the
offender in respect of that offence or taking steps to see
whether there is any basis for initiating judicial
proceedings or for other purpose.
It would thus be seen that when a private complaint is
made to the Magistrate, before the Magistrate takes
cognizance of the offence on the complaint so as to take the
other steps, the complaint shall contain all the necessary
facts constituting the offence for which the complaint was
laid, so that the Magistrate can proceed further in taking
further steps after cognizance of the offence is taken by
issuing the process etc. It is seen from reading of para 3
of the complaint, which is the foundation to taking
cognizance of the offence, that the complainant-respondent
has concentrated mainly on the offence punishable under
Section 295A of IPC; the High Court had quashed the said
complaint and no appeal has been filed in this Court.
The next question is: whether the learned Judge was
right in holding that the complaint discloses offence
punishable under Section 500 IPC? Section 499 defines
‘defamation’ thus:
“Whoever by words either spoken or
intended to be read, or by signs or
by visible representations, makes
or publishes any imputation
concerning any persons intending to
harm, or knowing or having reason
to believe that such imputation
will harm, the reputation of such
person, is said, except in the
cases hereinafter excepted, to
defame that person”.
Explanation 2 to the said section envisages that it may
amount to defamation to make an imputation concerning a
company or an association or collection of persons as such.
Explanation 4 provides that no imputation is said to
harm a person’s reputation, unless that imputation directly
or indirectly, in the estimation of others, lowers the moral
or intellectual character of that person, or lowers the
character of that person in respect of his caste or of his
calling, or lowers the credit of that person, or causes it
to be believed that the body of that person is in a
loathsome state, or in a state generally considered as
disgraceful.
A reading of the complaint does not contain any of the
allegations constituting the offence of defamation
punishable under Section 500, IPC. The contents of the
magazine are alleged to be defamatory against the Marwari
community, lowering them in the estimate of the public or
their reputation is lowered in the society. But we do not
find any allegation made in the complaint. Accordingly, we
hold that the complaint filed in the Court of the Judicial
Magistrate, First Class in Court No.4 at Pune does not
contain any of the allegations so as to constitute the
offence of defamation defined in Section 499 and punishable
under Section 500. Consequently, the Magistrate was not
justified in issuing the process against the appellant. The
complaint is accordingly quashed.
As regards the allegations made against the appellant
in the complaint filed in the Court of Judicial Magistrate,
Ist Class, at Nasik, on a reading of the complaint we do not
think that we will be justified at this state to quash that
complaint. It is not the province of this Court to
appreciate at this stage the evidence or scope of and
meaning of the statement. Certain allegations came to be
made but whether these allegations do constitute defamation
of the Marwari community as a business class and whether the
appellant had intention to cite as an instance of general
feeling among the community and whether the context in which
the said statement came to be made, as is sought to be
argued by the learned senior counsel for the appellant, are
all matters to be considered by the learned Magistrate at a
later stage. At this stage, we cannot embark upon weighing
the evidence and come to any conclusion to hold, whether or
not the allegations made in the complaint constitute an
offence punishable under Section 500. It is the settled
legal position that a Court has to read the complaint as a
whole and find out whether allegations disclosed constitute
an offence under Section 499 triable by the Magistrate. The
Magistrate prima facie came to the conclusion that the
allegations might come within the definition of ‘defamation’
under Section 499 IPC and could be taken cognizance of. But
these are the facts to be established at the trial. The case
set up by the appellant are either defences open to be taken
or other steps of framing a charge at the trial at whatever
stage known to law. Prima facie we think that at this state
it is not a case warranting quashing of the complaint filed
in the Court of Judicial Magistrate, Ist Class at Nasik. To
that extent, the High Court was right in refusing to quash
the complaint under Section 500, IPC.
The appeal is accordingly allowed in part.

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