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Himachal Pradesh High Court · body

2000 DIGILAW 18 (HP)

ASHWANI KUMAR DATTA v. S. C. KUMAR

2000-01-07

M.R.VERMA

body2000
JUDGMENT M. R. Verma, J.: This petition under Section 397,401 read with Section 482 of the Code of Criminal Procedure has been preferred by the petitioner-accused (here-in-after referred to as the petitioner) for quashing the orders dated 17.7.1998 passed by the learned JMIC(l), Una, directing, issue of summons to the petitioner on the basis of a complaint filed by the respondent-complainant (here-in-after referred to as the respondent) under Section 500 J.P.C. and also for quashing the complaint. . 2. I have heard the learned counsel for the parties and have also gone through the records. 3. The sum and substance of the complaint against the petitioner is that the residential houses of the parties at Una are adjacent to each other and the petitioner had been using the passage of the property of the respondent for the purpose of entrance to his house. On 18.7.1997 the respondent asked the petitioner to make alternative arrangement for passage to his house. The petitioner however lodged a complaint against the respondent to the police that the respondent and his son had threatened the petitioner and his wife and have also threatened to block their passage and have demolished his stairs. On this complaint A.S.I. Shamsher Singh alongwith a few other police officials went to the house of the respondent to make inquiries into the matter. When the respondent returned home on 19.7.1997 at about 7 PM he was shocked to see the police at his residence without any reasons. He was informed by the said A.S.I, that the police had gone on the spot in connection with the complaint made by the petitioner who apprehended danger to himself and members of his family from the respondent, his sons and 20 others. On inspection the police found that there was no demolition etc. nor there was any tension whatsoever, therefore, the police went away. It is further the case of the respondent in the complaint that the petitioner knowingly and intenitonally to harm the reputation in the complaint and to defame him filed a false complaint with the police against him and his son and 20 others resulting in the visit of the police to his residence which has defamed the respondent who was living a respectable retired life and thereby had been defamed in the eyes of the neighbours and the other people because of the false complaint. 4. 4. The respondent led preliminary evidence to show grounds to summon the accused and in addition to his own statement examined CW-2 Sanjay Sharrna, CW-3 Mohinder Singh, CW-4 Yogman Singh, CW-5 Kamal Dev, CW-6 H.C. Ramesh Chand, CW-7 Shamsher Singh and also produced in evidence a copy of the complaint made by the petitioner to the Superintendent of Police Ext. CW-7/A on the basis of which the police visited the spot, statement of the petitioner recorded by the police during the inquiry Ext. CW-7/B and the report of the A.S.I, about the matter Ext.CW-7/C. 5. The respondent and CW-2 Sanjay Sharma by and large supported the contents of the complaint and CW-3 Mohinder Singh, CW-4 Yogman Singh, CW-5 Kamal Dev and other witnesses have supported the version in the complaint about the visit of the police to the spot. The net prima facie result of this evidence as per the statements of the witnesses is that the arrival of the police on the spot had affected the reputation of the complainant. CW-6 H.C. Ramesh Chand and CW-7 A.S.I. Shamsher Singh have produced the records of the inquiry as stated here-in-above. 6. A perusal of the complaint Ext.PW-7/A reveals that the respondent (accused therein) is an influential person and he alongwith his two sons and large number of persons of dangerous nature are threatening to uproot the stairs going to first floor belonging to the petitioners father and also threatened to remove the septic tank and boundary wall, therefore, legal action may be taken against him. There is no allegation in the complaint that the respondent and his companions had demolished the stairs of the petitioner. The only allegation in the complaint is that stairs etc. are being threatened to be uprooted which will lead to hardship if the property is damaged as threatened. It is admitted case of the respondent in the complaint as well as in his statement that he had told the complainant to make alternative arrangement for entering their house. It means that there was some sort of threat about the dis-continuation of the passage which was being used by the petitioner/his father to reach their house. It is admitted case of the respondent in the complaint as well as in his statement that he had told the complainant to make alternative arrangement for entering their house. It means that there was some sort of threat about the dis-continuation of the passage which was being used by the petitioner/his father to reach their house. If on the basis of what the respondent had desired and the apprehension that the complainant might be stopped from using the passage or the stairs may be uprooted, the petitioner filed the complaint ExtPW-7/A it cannot be said to have been filed with the intention to harm or knowing or having reason to believe that such filing of complaint will harm the reputation of the respondent. The complaint lodged with the police by the petitioner even in view of the admitted facts appears to have been filed in good faith for protecting his and his fathers interest in the passage leading to their house. 7. The defamation which may constitute an offence punishable under Section 500 IPC has been defined under Section 499 IPC wherein certain imputations having been made by a person have been exempted from being treated as defamation. The 9th exception in the said Section reads as follows: "9. Imputation made in good faith by person for protection of his or others interests - It is not defamation to make in imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good." 8. The present case is fully covered under the aforesaid exception and in view of the admission of the respondent himself that he had already fore-warned the petitioner not to use the passage and the a negations made in the complaint of the respondent being exaggerated and not in strict conformity with the complaint Ex.PW-7/A and in view of the contents of Ex.PW-7/A the complaint made by the petitioner to the police was evidently an act in good faith for protection of the interest of the petitioner and his father. The visit of the police only to verify the facts on the spot, therefore, was not an act intended to humiliate, insult or defame the respondent even in view of the evidence led by the respondent himself particularly the complaint Ext. The visit of the police only to verify the facts on the spot, therefore, was not an act intended to humiliate, insult or defame the respondent even in view of the evidence led by the respondent himself particularly the complaint Ext. PW-7/A and statement of the petitioner Ext.PW-7/B. These documents though produced by the complainant do not appear to have been taken into account learned Magistrate while coming to the conclusion that there was a ; facie case for summoning the petitioner. 9. As seen above in fact there are no sufficient grounds to proceed against the petitioner for the commission of the alleged offence. Therefore, the impugned order directing the issue of summons to the petitioner is unsustainable. 10. As a result, this petition is allowed, the impugned order is set-aside and the complaint No. 38-2/97 under Section 500 IPC filed by the respondent against the petitioner in the Court of learned Judicial Magistrate below is quashed. Petition allowed.