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1996 DIGILAW 308 (CAL)

Jitendra Nath Kundu v. State of West Bengal

1996-07-31

R.Bhattacharyya

body1996
JUDGMENT R. Bhattacharyya, J: This criminal revision is directed for quashing of the proceeding of case No.545C of 1993 pending disposal before the learned 6th court of Judicial Magistrate of Alipore. 2. The short facts giving rise to the above question may be stated thus:- 3. The case reveals the weary tale of the revisionist No.1 who became an ill fated father of Sharmista who had gone missing on and from 17.5.92. The revisionist, since bewildered by the missing of his daughter lodged an information with the Jadavpur Police Station and also intimated the Special Superintendent of Police, Missing Persons Squad, CID, Bhawani Bhawan, Alipore for recovery. 4. On receipt of an information about the commission of a cognizable offence, the Jadavpur Police Station started a PS Case being PS Case No. 313(5) under Ss. 363/365 & 366 of the Indian Penal Code against the opposite party No.2 who as a part of the investigation was arrested by the police. He was subsequently enlarged on bail. The missing daughter Sharmista, however, was rescued some time in June, 1992 whose statement was recorded by the learned Judicial Magistrate in Alipore u/s. 164 of the Cr.P.C. She was released on bond and that she was given to the protective custody of her father. Ultimately, on submission of final report by the police on 27.2.93, Ashish the opposite party No. 2 was discharged. 5. Ashish could not brook the insult and humiliation as it set out a gloomy cloud on his character and career and to remove the eclipse, he filed a complaint before the Magistrate under Ss.500/509 read with s. B of the IPC. The learned Chief Judicial Magistrate 24 Pgs(South), upon examination of the complainant and his witnesses, issued a process against all the revisionists. 6. The indignation and wrath of Ashish did not cease or terminate for initiation of criminal proceedings but to restore his reputation, he filed a money suit before the learned Assistant District Judge, 5th Court claiming a decree for a sum of Rs. 2,82,412/- for causing damages of his reputation, unlawful detention, cost of. litigation's plus loss of business. 7. 6. The indignation and wrath of Ashish did not cease or terminate for initiation of criminal proceedings but to restore his reputation, he filed a money suit before the learned Assistant District Judge, 5th Court claiming a decree for a sum of Rs. 2,82,412/- for causing damages of his reputation, unlawful detention, cost of. litigation's plus loss of business. 7. It is admitted on all hands that Ashish developed an intimacy with Sharmista who had gone missing while, she was in company with the opposite party No.2 which consequently gave rise to a complaint by the revisionist No.2 with the Jadavpur Police Station disclosing therein the complicity of Tapas Das and Ashish over the sudden missing of her daughter Sharmista. The recovery of the daughter, since found to be fruitless by the revisionist, both the petitioners No. 1 & 2 sought for the aid from Shyamali Gupta imploring her to take initiative in the matter for the rescue of he~ daughter. 8. The gravamen of the allegations of the revisionists are that no offence u/s. 500 of the IPC was committed. At the most, the action may be interpreted to be an offence u/s. 203 of the IPC liabling the petitioners to pay compensation to Ashish by operation of s. 250 of the Code of Criminal Procedure. The prosecution of the complaint and the lodgement of the FIR by the revisionists were never blended with mala fide or any motive as the suspicion was very strong that Ashish had pre-disposition and favourably disposed to sharmista. The petitioners were labouring under genuine belief about the complicity of Ashish over the missing of their daughter. They were not swayed away or carried by any motive, ill will, rancour and had the least intention to undermine or soil the reputation of Ashish. They were bona fide in their attempt as both Ashish and Sharmista were love-lorn which fostered a belief in their mind that Ashish was the accessory to or the main architect of missing of their daughter. 9. In the background of the above, the petitioners have charged the inherent jurisdiction of the court for quashing of the proceedings as the admixture of good faith and bona fide is to throttle the fictitous defamation. 10. 9. In the background of the above, the petitioners have charged the inherent jurisdiction of the court for quashing of the proceedings as the admixture of good faith and bona fide is to throttle the fictitous defamation. 10. The potential question that survives for consideration is as to whether the imputation made by the revisionist against the opposite party founded upon good faith or false accusation. 11. This is the lone question to be answered by the court in the background of factual and legal exposure of the case. It is undisputed that the question is as to whether the revisionist made imputation in good faith would depend upon the facts and circumstances. It should not be kept in the water-tight compartment nor any clean jacket formula to be adopted by the court in reaching the conclusion. There are so many ingredients that stem from associated facts. What are they? They are, what is the nature of the imputation made; the circumstances which impelled the petitioner to make such statement; the status of the person making the imputation. The generation of malice in mind when imputation is made; any reasonable inquiry made before imputation; there are adequate reasons to accept the story that .one acted with due care and caution about the truth of the imputation; and that other considerations would be taken into account in formulating the decision of the court. 12. While embarking on an inquiry to ascertain the truth or otherwise of the complaint filed by the opposite party against the revisionist, it is well discernible that opposite party No. 2 has admitted on all hands that he developed an intimacy with the daughter of Jitendra, the sudden missing of the daughter generated a suspicion which ripened into belief that the opposite party No. 2 was greatly involved and that he was the main architect of the whole show. 13. The learned counsel for the opposite party No. 2 though disputed the correctness of the statement but could not hold the ground that there was a focus of affairs between the opposite party No.2 in one hand and the daughter Sharmista on the other. 13. The learned counsel for the opposite party No. 2 though disputed the correctness of the statement but could not hold the ground that there was a focus of affairs between the opposite party No.2 in one hand and the daughter Sharmista on the other. Bewildered by the disappearance of the daughter• and on being captivated by the genuine belief, the action resorted to by the revisionist does not spell out that he proceeded with an ill-motive, the object being to defame the opposite party No. 2 in any manner whatever. 14. The state of mind of the parents must be understood in the background of disappearance of the daughter behind which the love affair as between the two dominated the field. To recover the daughter in the background of the above, the action taken by the revisionist at any rate could not be blended with rancour, ill-will and motive. The return of the daughter, subsequent to the filing of the FIR or the complaint, cannot be interpreted that the actions of the revisionists were bristled with motive or founded on false accusation. 15. I am aware that defence of good faith not available, if allegations made before irrelevant authorities. The revisionists were caught unawares by the mysterious disappearance of their daughter who had company with the opposite party No.2. In order to constitute the defamation, it is well known that there must be making and publication of an imputation concerning any person with intent to harm the reputation of such person. 16. The expression "in the estimation of the others" in the Explanation so that the harm referred to, relates to imputation on a person's character made and expressed to others so as to lower him in their estimation. Anything which lowers in his own estimation cannot constitute the defamation. 17. I should not be oblivious that the facts were peculiar in nature which have explained in detail about the history between Sharmista and opposite party No. 2 by me. In the backtrain of the above facts, in my view, that there is no slight harm caused to the opposite party No.2 as it was tempered with the missing of the daughter Sharmista. The only test to see is as to whether the complaint made by the father of the daughter tended to lower the opposite party No.2 in the estimation of right thinking members of society. The only test to see is as to whether the complaint made by the father of the daughter tended to lower the opposite party No.2 in the estimation of right thinking members of society. The statement when made in good faith cannot bring the case within the mischief of Ss. 499 & 500 of the IPC. 18. It will not be out of place to mention, though repeated on a number of occasions that publishing defamatory matter by itself is no offence, if made in good faith in excavating a remedy or redress for private or public wrong from a person who may repair such wrong: provided it is believed to be true and is relevant and provided it does not exceed what is reasonably sufficient for the occasion. In view of the antecedent facts, it will be extremely difficult to hold that the revisionist -lodged the complaint with the lawful authority for redress with the object of maligning the opposite party No. 2 and that he was carried away by ill motive. 19. Thus, the statement made in good faith can be made use of by the revisionist as the shield and to cut it as a sword. 20. Thus, considering the materials on record, I cannot support the taking cognizance by the Magistrate. It will be purely an abuse of the process of the court, if the proceeding is allowed to continue further. The machinery of the court cannot be abused for the purpose of securing an order of the court to the prejudice of other party. The approach must be rational and reasonable. I am well aware that quashing on criminal proceedings at initial stage should not enormously be exercised u/s. 482 of the Code of Criminal Procedure. Power should be very spearingly an cautiously exercised. In invoking the inherent jurisdiction, the court is not clothed with jurisdiction to sift or appreciate the evidence and come to the conclusion that no prima facie case is made out. When the facts are feeble and not encouraging for its prosecution, the court is quite justified to quash the proceedings. The facts and circumstances of each case are the deciding factor as to whether the court should invoke inherent jurisdiction to quash the proceedings. The Apex Court did not lay down any universal formula for quashing the proceedings. When the facts are feeble and not encouraging for its prosecution, the court is quite justified to quash the proceedings. The facts and circumstances of each case are the deciding factor as to whether the court should invoke inherent jurisdiction to quash the proceedings. The Apex Court did not lay down any universal formula for quashing the proceedings. The Supreme Court has said that proceedings can never be quashed whatever be the circumstances. But when I travel through the narrow passages of the complaint and the materials revealed on record, I cannot take any other view except the quashing of proceedings as I have already indicated the reasons therefor aforenoted. 21. Thus, the proceedings of Case No. 545/C of 1993 pending disposal before the learned 6th Judicial Magistrate at Alipore is hereby quashed and the revision allowed. Revisional application allowed, Proceeding quashed.