ASISH BARAN MUKHERJEE, J. ( 1 ) THE Revisional Application arises out of an order dated 16-7-1973 passed by the Ld. Judicial Magistrate 3rd Court, Alipore in Complaint Case No. C-1345 of 1987 under Section 500 and 500/120b, I. P. C. ( 2 ) THE case of the petitioners in short is that petitioner No. 1 is a tenant under the husband of O. P. No. 1 in respect of a portion of premises No. 90/2, Block - 'g', New Alipore. She used to pay rent regularly but the husband of O. P. No. 1 refused to accept the same from the month of November, 1985. Thereafter, she started to deposit the rent with the Rent Controller. O. P. No. 1 and her husband began creating disturbances in order to forcefully evict the petitioners No. 1 from the said premises. Petitioner No. 1 in order to protect her interest had to start a proceeding under Section 144, Cr. P. C. being M. P. Case No. 1325 of 1985. She also filed a Civil Suit being T. S. No. 522 of 1995. She got orders in her favour in both the proceedings, though the same are pending. She also filed the another Title Suit being T. S. No. 78 of 1986 against the O. P. No. 1 and her husband for declaration of her tenancy. That suit is also pending. As O. P. No. 1 filed a Criminal Case No. 290 of 1986 which was later sent to the Police Station and the G. R. Case arose. The O. P. No. 1 also filed a Criminal Case under Section 94, Cr. P. C. , against the petitioners being M. P. Case No. 223 of 1986. The landlord also filed another Title Suit being 412 of 1987 for Permanent Injunction and an order of status quo was passed in that Suit. In view of the search warrant issued in M. P. Case No. 223 of 1986) Police seized certain articles from petitioners premises. However, the seized articles were later given to her on execution of a bond. The petitioner also had to start a proceeding for violation of order of the Civil Court against the O. P. Thereafter, O. P. No. 1 filed an application being complaint Case 1345 of 1987 under Section 500, I. P. C. against the petitioners and O. P. No. 2, which is pending.
The petitioner also had to start a proceeding for violation of order of the Civil Court against the O. P. Thereafter, O. P. No. 1 filed an application being complaint Case 1345 of 1987 under Section 500, I. P. C. against the petitioners and O. P. No. 2, which is pending. It has been alleged that in the proceeding under Section 144, Cr. P. C. false and frivolous allegations were made which wounded O. P. No. 1 causing him mental pain and agony and humiliation in the estimation of others. Petitioner No. 1 entered appearance in the Case No. 1345 of 1987 and filed an application under Section 205 Cr. P. C. and the said application was allowed but subsequently as because the petitioner was not physically phusically present on a particular day, compelling processes were issued against her. Direction was given to the petitioner to remain present physically. The order of the Judicial Magistrate directing her personal appearance has been criticised. It is also the petitioners case that the allegation contained in the application under Section 144, Cr. P. C. are not at all defamatory and there is no prima facie case of conspiracy also. Accordingly the petitioner have prayed for setting aside the relevant order dated 16-7-1993 as also for quashing the complaint Case No. 1345 of 1987. ( 3 ) THE O. P. No. 1 in course of her affidavit in opposition have denied material allegations contended in the revisional application. She has asserted that defamatory allegations were contained in the proceeding under Section 144, Cr. P. C. and as such she had to file a case for defamation being 1345 of 1987. The impugned order of the Judicial Magistrate has been supported as correct since the petitioner did not appear instead of direction to that effect. Petitioner No. 2 also in course of affidavit in reply challenged the revisional application as not maintainable. ( 4 ) THE first argument advanced on behalf of the petitioners is that the proceeding under Section 144, Cr. P. C. was started by the constituted Attorney of the petitioner and not the petitioner herself. It is submitted that in the circumstances the petitioner cannot be held liable for any observation or averment made in the said application. It is also submitted that the averment of the said petition under Section 144, Cr.
P. C. was started by the constituted Attorney of the petitioner and not the petitioner herself. It is submitted that in the circumstances the petitioner cannot be held liable for any observation or averment made in the said application. It is also submitted that the averment of the said petition under Section 144, Cr. P. C. is not at all defamatory inasmuch as the said petition when taken as a whole is nothing more than general allegations containing some acts and also apprehensions on the part of the said petitioner. It is also argued that there was no absence of good faith and as such simply because some allegations have been made in furtherence of protecting his interest, the same cannot amount to defamation. It has also been alleged that the Ld. Magistrate in spite of earlier allowing the application under Section 205, Cr. P. C. by order dated 16-7-93 directed the present petitioner No. 1 to appear in the Court and decided to issue warrant of arrest in the event of her failure to attend the Court. It is submitted that her physical presence was not at all essential for the purpose of examination of the accused under Section 251 of Cr. P. C. when her earlier representation petition was allowed. It has been argued on the strength of a number of decisions that in order to assess whether a particular passage or a line is defamatory, the whole document need be considered. It has also been argued that vague and general imputation is not sufficient for defamation. It has also been argued that intention to defame and the knowledge that such imputation will infact defame, are most essential elements to constitute defamation. Reference has been made to the 8th and 9th exception contained in Section 499, I. P. C. In support of the contention that accusation preferred in good faith does not amount to defamation. It has also been asserted that imputation made in good faith by person for protecting his interest does not amount to defamation. ( 5 ) ON the other hand, it has been argued on behalf of the O. Ps. that when the complaint and the initial deposition disclosed a prima facie case, the inherent power under Section 482, Cr. P. C. should not be invoked.
( 5 ) ON the other hand, it has been argued on behalf of the O. Ps. that when the complaint and the initial deposition disclosed a prima facie case, the inherent power under Section 482, Cr. P. C. should not be invoked. It has also been argued on the strength of reperted decisions that the inherent power should be exercised sparingly by the revisional Court which shall not resort to parallel enquiry but only to see if the materials disclosed a prima facie case. It has also been argued that no meticulous scrutiny is to be made at the revisional stage but only probability, reliability and genuineness need be seen. ( 6 ) I have given my careful consideration to the submissions to both the sices. I have also scrutinised xerox copy of the petition under Section 144, Cr. P. C. which appears to have been made by the constituent Attorney and not by the O. P. No. 1. On the scrutiny of the xerox copy of the order sheet of Case No. C-1345 of 1987, it appears that the complaint was filed on 15-10-1987 and after lapse of about three years namely, on 18-7-1990, the complainant could produce all her witnesses when summons were issued. I have carefully peruse the initial deposition given by the O. P. No. 1. She has alleged that her prestige has been lowered due to allegation made against her to the effect that she committed trespass with outsiders to kidnap a baby. The evidence given by witness Anil das, simply stated that he heard from the O. P. No. 1 that one Mahanti that is O. P. No. 2 filed a case against her since then the witness seldom met the O. P. No. 1. The other witness namely, Shri Prithish Das, categorically denied that the O. P. No. 1 is a dangerous lady or creates any trouble in the premises or tried to remove any children, he is also aware that O. P. No. 1 is a noble lady but he later said that after hearing the allegation against her, he had to change his impression about the O. P. No. 1. The remaining witnesses are just formal witnesses.
The remaining witnesses are just formal witnesses. ( 7 ) AFTER careful consideration, it appears to me that there are no prima facie material for starting a case under Section 500, I. P. C. , Firstly, the proceeding under Section 144, Cr. P. C. was started by the constituted Attorney and not by the petitioner herself. Secondly, the said petition does not contained any defamatory statement but statements were made in good faith and there is nothing to show lack of bonafidee. Besides a substantial examination of the two apparently independent witnesses reveal that the allegations contained in the proceeding under Section 144, Cr. P. C. did not cause any humiliation to the O. P. No. 1 or lowered him in the estimation of general public. As such there is absolutely no reason for starting of the complaint case under Section 500, I. P. C. So far as, the order of the Ld. Judicial Magistrate directing presence of the petitioner No. 1 in the said complaint case instead of an allowing representation petition also. It may be stated that there in nothing improper to direct personal appearance if the Court requires the presence of an accused in spite of earlier allowing application under Section 205, Cr. P. C. but the said order requiring such presence must reveal the reason for such direction. In the present case, in a mechanical manner, direction was given without mentioning anything, as to why the personal presence was found to be essential. In the circumstance, the said order also cannot stand. In the result, the revisional application stands allowed and the complaint Case No. C-1345 of 1987 is quashed. Application allowed.