Research › Browse › Judgment

Bombay High Court · body

1989 DIGILAW 173 (BOM)

Sandeep Pal Dessai v. Feliciana Tomacinba

1989-07-07

G.F.COUTO

body1989
JUDGMENT G. F. Couto. J.-This is an application under section 482 of the Criminal Procedure Code, whereby the petitioner challenges the Order dated 27th December, 1988. passed by the learned Judicial Magistrate, First Class, Quepem, issuing process against him and the respondents Nos. 2 onwards. 2. The said Order was passed by the learned Magistrate, First Class, Quepem, in a criminal complaint, being the Criminal Case No. 15/S/88 filed by the first respondent for offences punishable under section 500 of Indian Penal Code. It was her case that she is running a poultry farm at Xeldem, Quepem, and that her farm has been valued at Rs. 8,22,500/-. She applied for subsidy to the Block Development Officer, but the said Officer started demanding a sum of Rs. 15,000/-. She declined to give the said amount of money and asked the said Officer to process her application. As the Block Development Officer was not taking any action, she took up the matter to the higher authorities, and ultimately, an inquiry was instituted at the instance of the Director of Industries against the said Officer. Then, the said Officer released a report to the newspaper 'Herald' alleging that the first respondent had looted the Directorate of Mines and Industries by getting subsidies and loans for her poultry farm. This was published in the issue of 16th January, 1988. As this report caused ham to the reputation of the first respondent, she issued a clarification stating that she was entitled to the subsidy and the Block Development Officer was blocking the said subsidy with a demand of a bribe of Rs. 15,000/-. Sometime later, the petitioner and the respondents Nos. 2 onwards published a full page advertisement in the same newspaper 'Herald' under the caption "Corruption in Quepem BDO the other Side". Some serious allegations were made, according to the first respondent against her, namely that she was indulging in malpractices and that the clarification has been made by her as she had been unable to cheat the Government and !o obtain a false subsidy. 3. The learned Judicial Magistrate, First Class, after recording the statement of the complainant who thereby verified her complaint, issued the impugned Order. He issued process under section 500, I.P.C. read with section 34, against all the accused except the accused Nos 1 and 2, i.e. the Block Development Officer, and the Joint Director of Industries. 4. Mr. 3. The learned Judicial Magistrate, First Class, after recording the statement of the complainant who thereby verified her complaint, issued the impugned Order. He issued process under section 500, I.P.C. read with section 34, against all the accused except the accused Nos 1 and 2, i.e. the Block Development Officer, and the Joint Director of Industries. 4. Mr. Rebello, the learned counsel appearing for the petitioner, contends before me that the learned Judge has materially erred in issuing process in this case, since he failed to appreciate that the complainant has not established prima facie the ingredients of an offence of defamation. He urged that it was not sufficient for the complainant to prove or to establish that some allegations had been published against her by the petitioner and other accused, but she ought to have also established prima facie that, as a result of the said publication, her reputation had been lowered in the estimation of other persons. The complainant alone verified her complaint and did not examine any witness in order to prima facie establish that there was a lowering, in the estimation of others, of her reputation. Therefore, according to the learned counsel, there was no case for issuing process. S. Mr. Viegas, the learned counsel appearing for the first respondent, however, joined issue and he urged that the publication in the newspaper 'Herald' by itself was likely to lower the reputation of the complainant in the estimation (1f others. He invited my attention to the relevant portion of the defamatory advertisement and he submitted that it Bows clearly from the said advertisement that the petitioner and the other accused in the case had been charging the first respondent of malpractices, of malicious behaviour and of cheating. Such, kind of allegations are naturally likely to lower the reputation of the complainant in the esteem of other people. That apart, he submitted that the inquiry to be held by the Court before issuing the process is quite limited and restricted only to find out whether a prima facie case had been established to justify the issuance of process. 6. In turn, the learned Public Prosecutor, Mr. Bhobe, agreeing with Mr. Viegas, submitted that the question of the trial Court going into a deep inquiry before issuing process was not at all arising. In this connection, he placed reliance in Hareram Satpathy v. Tikaram Agarwala and others1. 6. In turn, the learned Public Prosecutor, Mr. Bhobe, agreeing with Mr. Viegas, submitted that the question of the trial Court going into a deep inquiry before issuing process was not at all arising. In this connection, he placed reliance in Hareram Satpathy v. Tikaram Agarwala and others1. He also submitted that, at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he has only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused, as laid down by the Supreme Court in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others2. 7. The portions of advertisement which, allegedly, are defamatory read as under : "We have come across complainants of certain malpractices, allegedly indulged in by the author of the said letter Felie Luis Coutinho wife of Simon Coutinho owner of Franco Tereza Farm; perhaps because of the honesty and integrity of the Industries Officer Mr. Martinho D'Souza, the author of the malicious letter was unable to cheat the Government, with false subsidy claim and therefore levelled these wild allegations and revenge. We strongly condemn this attitude and demand that the Government should fully investigate the subsidy claim of Franco Tereza poultry farm. We also appeal to Mr. Francisco Mont.) Cruz, the Hon. Minister of State for Industries who has shown great--interest to reduce cheating of subsidy funds, to look into this case personally." It is clear from the above quoted portion of the advertisement that ,an allegation is made that the complainant/first respondent herein has been indulging in malpractices and that she wrote a malicious letter, as she was unable to cheat the Government and that she had raised a false claim for subsidy. Ex facie, these allegations are likely to lower the reputation of the complainant in the esteem of the people in general and they are, prima facie defamatory in nature. Ex facie, these allegations are likely to lower the reputation of the complainant in the esteem of the people in general and they are, prima facie defamatory in nature. It is true that Explanation 4 to section 499, I.P.C. 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. This requirement is, manifestly, necessary to be proved by the complainant in order that a conviction can be recorded. However, the requirement of showing that, actually, the imputation made has lowered the reputation of a person in the estimation of others is not necessary to be established at the time of the issuance of process. It suffices that there is likelihood of such thing. In this connection, it is pertinent to recall the law laid down by the Supreme Court in Smt. Nagawwa's case (above). Their Lordships of the Supreme Court observed that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into the matter in its revisional jurisdiction which is a very limited one. The Court further observed that the scope of the inquiry under section 202, Cr. P.C. is extremely limited being confined to the ascertainment of the truth or falsehood of the allegations made in the complaint and that the accused has got absolutely no locus standi and is not entitled to' be heard on the question whether the process should be issued against him or not. 8. P.C. is extremely limited being confined to the ascertainment of the truth or falsehood of the allegations made in the complaint and that the accused has got absolutely no locus standi and is not entitled to' be heard on the question whether the process should be issued against him or not. 8. In the facts of this case, it is unquestionable that a prima facie case has been made showing that there are sufficient grounds to proceed against the petitioner and other accused for an offence punishable under section 500, I.P.C. This being so, the interference of this Court in exercise of its powers under section 482, Cr. P.C. is not warranted. 9. The result, therefore, is that this Application fails and is, consequently, dismissed. Application dismissed. 1. AIR 1978 SC 1568 . 2. AIR 1976 SC 1947 .