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2004 DIGILAW 31 (HP)

REWAT RAM v. CHURA MANI

2004-03-05

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J.—This revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure is directed against the order dated 6.8.2003 passed by the learned Chief Judicial Magistrate, Kullu, in complaint No. 160-1/2002, whereby on examination of the preliminary evidence led by the complainant, the trial court has held that there are sufficient grounds to proceed against the accused-petitioner (hereafter referred to as the accused) for commission of an offence under Section 500, IPC and has directed issue of summons to him. 2. Brief facts leading to the presentation of the present petition are that the respondent-complainant (hereafter referred to as the complainant) had filed a complaint under Section 500, IPC, against the accused in the Court of the learned Chief Judicial Magistrate alleging that the accused (PW-3) with the intention of defaming him made the following statement on 16.1.2002 in Civil Suit No. 73 of 2000 titled Rewat Ram v. Suchet Chand and others:— "MERI MATA JI KAY VAKEEL AAP HAI AUR AAPNE MATA JI KE KOREY KAGAJ MEIN ANGOOTHEY LAY RAKHEY HAIN KIUNKI MERE BHAI BOLTEY HAIN KIHAMNE VAKEEL SAHAB SE KORE KAGAJ LEY RAKHE HAIN VAKT AANE PAR USE KARENGAY." It is claimed that the statement is wilful, mala fide, false and without any foundation and such a statement has given the impression that the complainant, who is an Advocate, is a foregerer and is doing dubious legal practice and the defamatory statement has lowered the moral and intellectual character of the complainant in the eyes of Officers/Officials, general public and is lowering his esteem in the eyes of others. The complainant in his preliminary evidence, in addition to his own statement as CW-1, examined Shobi Devi (CW-2) mother of the accused, Hari Chand (CW-3) brother of the accused, Rajiv Chand (CVV-4) and Ramesh Kumar (CW-5) and produced an attested copy of the statement Ext. PW 5/A. On the basis of this evidence, the trial court found sufficient reasons to proceed against the accused and accordingly directed issue of summons. Being aggrieved the accused has preferred the present petition. 3. I have heard the learned Counsel for the parties and have also gone through the records. 4. PW 5/A. On the basis of this evidence, the trial court found sufficient reasons to proceed against the accused and accordingly directed issue of summons. Being aggrieved the accused has preferred the present petition. 3. I have heard the learned Counsel for the parties and have also gone through the records. 4. It may be pointed out at the very outset that a perusal of the oral preliminary evidence led by the complainant primafacie shows that the imputed statement was made by the accused while making statement as a witness in a Civil Suit. 5. The contention of the learned Counsel for the petitioner is that the imputed defamatory statement was made by the accused as a witness and when read with reference to the context, it cannot be termed as a defamatory statement and affords no ground for proceeding against the accused and the learned trial Magistrate had acted mechanically in passing the summoning order. To support his contention, the learned for the petitioner has relied on Rajendra Kumar Sitaram Pande and others v. Uttam and another, (1999) 3 SCC 134 and M/s. Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others, AIR 1998 SC 128. 6. The ratio in Pepsis case (supra) as laid down by the Honble Apex Court, is that when the complaint and preliminary evidence do not disclose the commission of any offence, refusal of the High Court to quash the complaint would not be proper. 7. In Rajendra Kumars case (supra), the Honble Apex Court held that order of a Magistrate directing issuance of process is not an interlocutory order and, therefore, amenable to the revisional jurisdiction of the High Court. It was also held that if in the facts and circumstances as alleged exception 8 to Section 499 of the Indian Penal Code is attracted, no case of defamation is made out and order of issue of process and proceedings are liable to be quashed. 8. It was also held that if in the facts and circumstances as alleged exception 8 to Section 499 of the Indian Penal Code is attracted, no case of defamation is made out and order of issue of process and proceedings are liable to be quashed. 8. The learned Counsel has also referred to 5th exception to Section 499 of the Indian Penal Code which provides that it is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further. 9. On a plain reading of the statement Ext. CW-5/A, it is clear that the imputed statement is not referable to the merits of the suit in which it was made nor it is respecting the conduct of any person who may be party or witness or agent in the case in which the accused was appearing as a witness. Whatever he has stated is about the counsel representing one of the parties in the case. A witness is not absolutely privileged to state anything he may like and is, therefore, not immune from being prosecuted for defamation for voluntarily making a defamatory statement. Therefore, prima facie, the case of the accused is not covered by 5th exception to Section 499 of the Indian Penal Code, 10. Ext. CW-5/A is the attested copy of the concerned statement of the accused in which he has made the alleged defamatory statement. To be more clear about the import of this statement, a portion of statement Ext. CW-5/A is quoted hereunder:— "KHUD KAHA KI YE MERE SE DUSHMANI RAKHTE HAIN. DUSHMANIIES KARAN HAI KI HARI CHAND AAP KA (YANI CHURAMANI KATOCH ADHIVAKTA) RISHTEDAR HAI. MEIN RISHTEDAR KAYA HAI NA BATA SAKTA PRANTU RISHTEDAR HAI. MERI MATA JI KAY VAKEEL AAP HAI AUR AAPNE MATA JI KE KOREY KAGAJ MEIN ANGOOTHEY LAY RAKHEY HAIN KIUNKI MERE BHAI BOLTEY HAIN KI HAMNE VAKEE SAHAB SE KORE KAGAJ LEY RAKHE HAIN VAKT AANE PAR USE KARENGAY" 11. MEIN RISHTEDAR KAYA HAI NA BATA SAKTA PRANTU RISHTEDAR HAI. MERI MATA JI KAY VAKEEL AAP HAI AUR AAPNE MATA JI KE KOREY KAGAJ MEIN ANGOOTHEY LAY RAKHEY HAIN KIUNKI MERE BHAI BOLTEY HAIN KI HAMNE VAKEE SAHAB SE KORE KAGAJ LEY RAKHE HAIN VAKT AANE PAR USE KARENGAY" 11. It is evident from the tone and tenor of the above that these words were voluntarily spoken about the complainant and are addressed to the complainant specifically instead of the Court. At this stage, without any explanation from the accused for making such statement, which is prima facie defamatory, it cannot be said that the preliminary evidence does not disclose sufficient ground for issue of process against the accused. 12. In view of the above, the contention of the learned Counsel for the petitioner is unsustainable and no fault could be found with the order of the learned trial Magistrate directing issue of summons to the accused. 13. As a result, this petition is dismissed.