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2007 DIGILAW 605 (PAT)

Shaji Verghese v. State Of Bihar

2007-03-23

SHEEMA ALI KHAN

body2007
Judgment 1. Heard senior counsel, Mr. Nazmul Hoda appearing on behalf of the petitioner and Mr. Kamal Nayan Choubey, senior learned counsel appearing on behalf of the O.P. No. 2 and counsel appearing on behalf of the State. 2. This application has been filed for quashing the order dated 13.9.2004, by which the cognizance has been taken for offence under sections 500 and 501 of the Indian Penal Code in complaint case no. 490/2004 and also for quashing the order dated 11.11.2005 passed in Cr. Rev. No. 430/2004 which was filed for quashing the order of cognizance. Sec. 501B seems to be wrongly mentioned, in the order of cognizance. 3. The facts of the case as mentioned in the complaint petition are that, it is alleged that the petitioner is hostile to the Church and to Bishop, Vincent Barua, who is the Head of the Church at PLJRnea and Kishanganj. The reason for being hostile is that it is alleged that the petitioner has misappropriated a huge amount of the Church property in the name of doing construction work and he has forcibly occupied the dispensary of the Catholic Church campus at Kishanganj. Father, Robin Kullu who is Incharge of the Catholic Church, Ruidhasa, Kishanganj has filed the Eviction Suit No. 3/2003 pending in the Court of Munsif-II, Kishanganj for eviction of the petitioner. 4. It is said that the petitioner demanded one lac of rupees as Rangadari and on non-payment of the said amount, he put the prestige and honour of the complainant in danger for which the complainant has lodged a K.Hat P.S. Case No. 182/2003 at PLJRnea. 5. Being the Head of the Diocese at PLJRnea, the complainant is held in high esteem and honour by the Catholic community. 6. Father, Robin Kullu is the Headmaster of St. Xaviers School, Hindi Medium at Kishanganj and Father, Fulgence Topno is the Principal of St. Xaviers School English Medium, Khagra Halim Chowk, Kishanganj. It is alleged that the petitioner filed complaint before the Collector on 15.10.03 knowing very well that the complainant and the aforesaid Fathers are not concerned with illegal activities, but the petitioner has alleged that one Pushpa Kisku has been kidnapped by Mangol Buxla with the help of the complainant and Father Robin Kullu and Father Fulgence. It is alleged that the petitioner filed complaint before the Collector on 15.10.03 knowing very well that the complainant and the aforesaid Fathers are not concerned with illegal activities, but the petitioner has alleged that one Pushpa Kisku has been kidnapped by Mangol Buxla with the help of the complainant and Father Robin Kullu and Father Fulgence. It is further stated in the complaint petition that Pushpa Kisku is an adult girl and is married to Mangol Buxla and the complainant and others have no hand in the so-called marriage. 7. On the basis of the petitioners allegations dated 15.10.2003 the Collector directed the S.D.O., Kishanganj to enquire into the matter. Sri Sanjay Kumar Upadhaya, Executive Magistrate was authorised by the S.D.O. to make an enquiry and on the basis of the enquiry which according to the complainant, was not properly conducted, instituted a case of kidnapping (which is annexure-2 to the application). It is said that police also found that the case of the accused-petitioner is false and filed with the mala fide intention. It is specifically alleged at paragraph no. 15 that Shaji Varghese also gave a wrong facts in different Newspapers published in Bihar like Prabhat Khabar, Dainik Jagran and other Newspapers and Magazines from Bihar and it is in this way that the petitioner has lowered social prestige and honour of the complainant and priests of the Catholic Church, Ruidhasa, Kishanganj and the complainant and two other fathers of Catholic Church and for these reasons they are suffering incurable loss. 8. On the basis of the complaint filed, cognizance was taken under sections 500, 501B of the Indian Penal Code in complaint case no. 490 of 2004. 9. The complaint case has referred to certain incidents for which the complainant had filed substantive or cases and also referred to a application filed by the petitioner before the Collector. It would therefore be necessary to refer to these cases, especially as these cases form the basis of lodging the complaint case. 10. Before filing the compiaint case no. 490 of 2004, Reverend Vincent Barua had filed a complaint case no. 198/2003 against this petitioner, under sections 406/ 500, 384 and 120 of the Indian Penal Code. 11. It would therefore be necessary to refer to these cases, especially as these cases form the basis of lodging the complaint case. 10. Before filing the compiaint case no. 490 of 2004, Reverend Vincent Barua had filed a complaint case no. 198/2003 against this petitioner, under sections 406/ 500, 384 and 120 of the Indian Penal Code. 11. In the said case, it has been alleged that the complainant is a believer in the faith of Christianity and the petitioner entered into same contracts with the predecessor of the complainant and took a building on rent in Kishanganj for the PLJRpose of constructing a dispensary. The Church decided to construct Woman Development Centre over the said premises but the petitioner refused to vacate the premises and started campaign against the fathers of the Church making all sorts of allegations against them. 12. It is alleged that the accused persons got news items published in daily Newspapers i.e., Dainik Jagran dated 4.6.03, Hindustan dated 5.6.03 in which false allegations of rape on a Adivasi girl, making low payments to labourers in Kishanganj and making allegations of torture etc., were levelled against the complainant which was reported a news item. The complainant has stated that these type of allegations lowered the image, prestige and honour of the complainant and his image become tarnished amongst the general public and amongst the peolpe of his own faith specially as she is the Head of the Church. 13. It is also alleged that after the publication of the news item, the petitioner (accused) came to PLJRnea on 8.6.2003 at 3.00 P.M. at the residence of the complainant and demanded a sum of Rs. One Lac to issue contradictions which had been made in the news items and in this way it has been alleged that he committed offence under sections 500, 384 and 120B of the Indian Penal Code. The complaint petition no.198/03 was sent down for registration of the First Information Report under sec. 156(3) of the Code of Criminal Procedure and which was ultimately recorded as K.Hat RS. Case No. 182/2003 (Annexure-3) to the application under sec. 482 of the Code of Criminal Procedure. 14. The complaint petition no.198/03 was sent down for registration of the First Information Report under sec. 156(3) of the Code of Criminal Procedure and which was ultimately recorded as K.Hat RS. Case No. 182/2003 (Annexure-3) to the application under sec. 482 of the Code of Criminal Procedure. 14. It would also be relevant to refer to annexure-2 an F.I.R. filed by the Executive Magistrate alongwith the several other disputes which according to the petitioner is the reason and basis for which the present complaint has been filed. 15. Annexure-2 has been filed by Sri Sanjay Kumar Upadhaya, who is the Executive Magistrate, Kishanganj. On 5.12.2003 a letter was issued vide Memo No. 1217/C by the Executive Magistrate to the S.D.O., Kishanganj in which it has been stated that the petitioner, Shaji Varghese, an Advocate has filed an application against Vincent Barua and Mangol Buxla that they are responsible for the kidnapping of a minor girl. It has been alleged that the father and mother of the minor girl are being pressurised by the said Bishop and the matter needs to be enquired by the officers of the State. 16. Subsequently the matter was enquired by Sri Sanjay Kumar Upadhaya, Executive Magistrate, Kishanganj and the enquiry report is part of the F.I.R. Annexure-2 also contains an application filed by the petitioner to the District Magistrate dated 15.10.2003 in which, he has said that prior to filing of this application, Babloo Kisku, father of kidnapped girl alongwith his wife had come for consultation with the petitioner and had complained that his minor daughter had been taken away by Mangol Buxla who is aged about 50 years, with the help of the Head of the Catholic Church. The petitioner took Babloo Kisku to meet Sri Om Kumar, Advocate and take his opinion with respect to the steps that should be taken by Babloo Kisku regarding the said occurrence. After about a few days a Sahara TV. Reporter and others came to the petitioner to enquire about the occurrence. The petitioner referred the TV. Reporters to Babloo Kisku and his wife and it is said that Babloo Kisku gave statements before the said TV. Reporters. After about a few days a Sahara TV. Reporter and others came to the petitioner to enquire about the occurrence. The petitioner referred the TV. Reporters to Babloo Kisku and his wife and it is said that Babloo Kisku gave statements before the said TV. Reporters. It is also been said that he has filed an application in the High Court that he is being pressurised by the Church and false cases have been instituted against him and he has requested that the matter should be enquired into by the District Magistrate. 17. The enquiry report of the Executive Magistrate is also part of annexure-2, i.e., the First Information Report registered as Kishanganj RS. Case No. 265/ 2003 dated 5.12.03. 18. On the basis of the allegations made in annexure-2, cognizance has also been taken by the court below. 19. One of the cases filed was by the Father Stephen Karkatta which is complaint case no. 650/03. The allegations are that the complainant owns and possesses a building within the premises of Ruidhasa Church at Kishanganj. The petitioner (accused) took the building on monthly rent from the Bishop of Catholic Church at Kishanganj in the year 1989 on false representation. It is alleged that subsequently the accused petitioner executed an agreement in which it has been wrongly incorporated that the amount of rent Rs. 49,575/- due as rent has been adjusted towards repairs of the building by showing wrong and false vouchers. The complainant denies that he had signed on the agreement and as it is stated that offences of forgery, cheating and criminal breach of trust have been committed by the accused. 20. The petitioner had challenged the jurisdiction of the court at PLJRnea to try the case. The Chief Judicial Magistrate, PLJRnea held that Father Stephen is undoubtedly Head of the Catholic Church at PLJRnea, and the Church possesses the property situated at Kishanganj which was on lease to the petitioner at Kishanganj and as such the case could only be tried at Kishanganj. The case was sent for institution at Kishanganj by order dated 18.7.03. The petitioner has also annexed the plaint of Title Eviction No. 3/03 to show that in fact, the main genesis of filing of the case by Bishop and Fathers of the Church is to pressurise the petitioner so that he vacates the premises of the Church. 21. The case was sent for institution at Kishanganj by order dated 18.7.03. The petitioner has also annexed the plaint of Title Eviction No. 3/03 to show that in fact, the main genesis of filing of the case by Bishop and Fathers of the Church is to pressurise the petitioner so that he vacates the premises of the Church. 21. In the background of all these facts the Court has to examine that on the basis of the allegations made in the complaint case whether any offences are made out under sec. 500 of the Indian Penal Code and whether the petitioner has done certain acts which could be constituted to mean that he had tried to defame the complainant of the case. The definition of defamation is in Sec. 499 of the Indian Penal Code. Section 499. "Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person." 22. Counsel for the petitioner has contended that earlier also a case was lodged for the same offence at PLJRnea, whereas according to him the genesis of the occurrence and the act of so-called defamation has taken place at Kishanganj where the petitioner resided. This fact is substantiated by the complaint petition itself. According to the complainant, the accused petitioner had made false allegation against the complainant and Father Robin Kullu and Father Fulgence Topno that they were instrumental in helping Mangol Buxla in kidnapping Pushpa Kisku. Both the Fathers and Pushpa Kisku are living at Kishanganj, and the case of kidnapping has also been instituted at Kishanganj and as such the case ought to be tried at Kishanganj. However, this Court is not going into the matter of territorial jurisdiction. 23. Counsel for the Opposite Party No. 2 in order to substantiate that the cognizance has been taken by the court has referred and emphasised paragraph nos. 8, 10 and 15 to show cause that the petitioner was instrumental in publication of the news item. 24. In that view of the matter, it would be relevant to quote paragraph nos. 8, 10 and 15 of the complaint petition: Para 8. 8, 10 and 15 to show cause that the petitioner was instrumental in publication of the news item. 24. In that view of the matter, it would be relevant to quote paragraph nos. 8, 10 and 15 of the complaint petition: Para 8. "That Shaji Varghese, accused of this case, filed a petition before Collector, Kishanganj dated 15.10.2003, knowing full-well that these persons including complainant have no concern with illegal acts, alleged that one, Pushpa Kisku is kidnapped by Mangol Buxla with the help of the complainant, Father Robin Kullu and Father Fulgence Topno." So far paragraph no. 8 is concerned, the petition filed by the petitioner on 15.10.2003 has been drafted in his capacity as a practising Advocate. It is true that on the basis of the petition filed by the petitioner a enquiry was made by the Executive Magistrate and on the basis of that the First Information Report was instituted and final cognizance has also been taken vide annexure-8, which is annexed to the supplementary affidavit. The proceedings with respect to the case instituted on the basis of a petition drafted by the petitioner cannot amount to an offence of defamation as that application is now sub-judice on the basis of substantive case. 25. Moreover, the application filed by the petitioner can only have done on the basis of instructions received from a client and, therefore, it would not be proper to allege that the contents of paragraph no. 8 constituted an offence under section 499 of the Indian Penal Code. 26. Paragraph No. 10 of the complaint petition reads as follows: Para 10; "That the Shaji Varghese made allegation in his petition dated 15.10.2003 that the complainant and the Priests of the Church kidnapped Pushpa Kisku for the PLJRpose of illicit intercourse and to sell her." 27. These facts are also the basis of substantive case and the allegations that the petitioner has stated that the Priests of the Church kidnapped for illicit PLJRpose has not been made on behalf of the petitioner rather it is on the basis of the statement of the father of the girl. 28. Further an enquiry has been conducted by the Executive Magistrate and he has lodged a case on the basis of the statement taken from the parents of Pushpa Kisku and the villagers. 28. Further an enquiry has been conducted by the Executive Magistrate and he has lodged a case on the basis of the statement taken from the parents of Pushpa Kisku and the villagers. It appears from the application that the news persons also came to the village and father of Pushpa Kisku gave his statement before the news persons. Therefore, the allegations contained in paragraph no. 10 do not make out a case of defamation. 29. Lastly, at paragraph no.15 it has been stated as follows: Para 15: "Shaji Varghese also gave the wrong fact in different Newspaper published in Bihar like Prabhat Khabar, Dainik Jagran and other Newspapers including the light Magzine published from Bihar." 30. However, paragraph no.15 itself cannot constitute an offence. The facts which were published or said to have been done by the petitioner have not been mentioned in the complaint to constitute an allegation under sec. 499. The complainant must show that by words spoken or intended to be read or published the reputation of the person concerned loceers his prestige and harms his image it can not be assumed or definitely proved that a prima facie case is made out just by making statement that an information was given to the newspaper by the petitioner. The offence of defamation cannot be complete. Complainant must show and give details with with respect to thje words/ inflrmation given by the accused to show that in fact offence has been committed, mere allegation without foundational facts cannot be said to constitute an offence under sec. 499 of the Indian Penal Code. 31. The petitioner further submitted that the offence under sec. 499 of the Indian Penal Code was committed by publication of the news item. However, in this case, the editor or the reporter has not been made party and, therefore, according to the petitioner, his implication is malicious because of the fact that he had filed an application on behalf of the father of the kidnapped girl, Pushpa Kisku before the Collector and because of the fact that the complainant has failed to substantiate the case filed under sections 420 and 406 of the Indian Penal Code in the year 2003 against the petitioner. 32. It may be further noted that the allegations as contained in the complaint petition no. 32. It may be further noted that the allegations as contained in the complaint petition no. 490 of 2004 are repetition of the allegations made in (i) K.Hat P.S. Case No. 265/2003 (ii) K.Hat PS. Case No. 183/2003, and (iii) Complaint Case No. 60/ 2003. 33. All the cases have been filed by Viscent or his predecessor who were Head of the Church of PLJRnea and Kishanganj. 34. It appears that repeatedly the complainant is filing cases against the petitioner for the same type of offence which is not only include the offence under sec. 500 but also indude offences under sections 420 and 406 of the Indian Penal Code. 35. Learned Senior counsel, Sri Kamal Nayan Choubey appearing on behalf of the Opposite Party No. 2 has further submitted that the petitioner cannot rely on annexures-2 and 3 of the appplication as those facts do not concern this case, I do not this argument can be sustained on the ground that the complaint petition itself refers to the facts mentioned at annexure-2 and annexure-3 and, therefore, it can not be said that these documents can not be look into by this court specially in view of the facts that the documents are part of court proceeding and are the genesis of the case which have led to filing of the present complaint. 36. To substantiate this proposition that the court can refer to documents are the stage of taking cognizance if the documents are part of quasi-judicial proceedings or arise of out of judicial proceeding two are supported by discussion and judgment passed in Cr. Misc. No. 6017 of 1993 (G.C. Bahuguna and others-Vrs- State of Bihar and others) reported in 1999 B.C.C.R. Page 887 and 2000 P.L.J.R. (1) Page 25. 37. From the facts mentioned above this case come squarely within the exceptions in justifying interfere. 38. There are series of litigations which are as follows; (1) Kishanganj P.S.Case No. 265/ 03 dated 5.12.03, date of occurrence 13.9.03 under sections 366A, 372, accused Mangol Buxla. The case was filed on the basis of the written application by the petitioner to the District Magtistrate, Kishanganj, the informant is Executive Magistrate. (2) K.Hat RS. Case No. 182/03 dated 15.6.03 date of occurrence is June, 2003, under sections 406/500 138.120B of the Indian Penal Code by O.P.No. 2 at PLJRnea. The case was filed on the basis of the written application by the petitioner to the District Magtistrate, Kishanganj, the informant is Executive Magistrate. (2) K.Hat RS. Case No. 182/03 dated 15.6.03 date of occurrence is June, 2003, under sections 406/500 138.120B of the Indian Penal Code by O.P.No. 2 at PLJRnea. (3) Complaint Case No. 650/2003 filed by the predecessor of father Vincent Barwa under sections 406/420 of the Indian Penal Code at PLJRnea. (4) Complaint Case No. 90/04 under sections 500, 501, 505(2)(3) by Bishop Vincent Barwa dated 23.4.04. 39. The opposite party has already filed a case under sec. 500 of the Indian Penal.Code. K.Hat PS. Case No. 182/03 and again on the same allegations another case has been filed which is the present case. It is said that the date of occurrence is October to December however, the allegations as to what is the portion by which the complainant is offended has not been stated in the complaint petition. From the recitals of the complaint it seems that the dispute is regarding the occupation of the property of the Church at Kishanganj as tenant and the letter written by the petitioner to the Collector of the District regarding the involvement of the Bishop and other Fathers in the alleged kidnapping of the Pushpa Kisku. As observed earlier for both three incidents are already subject matter of substantive cases. The repetitive reports printed in the Newspaper regarding these facts could hardly constitute an offence. The News persons print information regarding the number of cases and one has to distinguish between news items which are printed with a motive to malign a person and have no substantive reasons to believe that this true before printing such items. 40. One may rely on the case of State of Haryana Vs. Bhajanlal reported in 1992 S.C. Page 604 wherein, the Apex Court has laid down certain exceptions where the court may exercise the powers under sec. 482 of the Code of Criminal Procedure. The petitioners case is covered by Exceptions 1 and 7. 1. "Where the allegations made in the First Information Report or the com- plaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any of fence or make out a case against the accused." 2. The petitioners case is covered by Exceptions 1 and 7. 1. "Where the allegations made in the First Information Report or the com- plaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any of fence or make out a case against the accused." 2. "Where a criminal proceeding is manifestly attended with malafide and or where the procedding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 41. In this case the allegations in the complaint petition do not constitute an offence. On the plain reading of the First Information Report the allegations are repetitive of the earlier criminal case filed for defamation and nothing new has been stated in the present complaint. 42. As such I find that no prima facie case is made out against the petitioner and the proceeding is maliciously instituted to wreak vengeance against the petitioner. The order taking cognizance by Shri S.K. Dixit, Judicial Magistrate, Purnea in complaint case no. 490 of 2004 is accordingly quashed.