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Andhra High Court · body

2007 DIGILAW 927 (AP)

Dr. Sabiha Sultana v. Mohd. Badruddin

2007-09-24

G.V.SEETHAPATHY

body2007
Judgment :- 1. This criminal revision case is filed seeking to assail the order dated 13-12-2002 in Crl.M.P.No.8168 of 2001 in C.C.No.881 of 1999, on the file of the Court of the IV Metropolitan Magistrate, Hyderbad, wherein the petition filed by the respondents 1 to 5 herein i.e., A-1, A-3 to A-6 for discharge, was allowed. 2. The revision petitioner herein filed a private complaint under Section 200 Cr.P.C., against the respondents 1 to 5 herein and another, alleging offence under Section 500 IPC. A-1 is the husband of the complainant, A-2 and A-3 are his parents, A-4 and A-5 are his sisters and A-6 is the husband of A-4. According to the complainant, A-1, at the instigation of A-2 to A-6, gave a publication in Siasiat Urdu daily on 14-04-1999 making false allegations to defame the complainant, her parents and brother. The imputation in the public notice reads as under: “Because of your consistent misbehaviour and because of the fact that you got an abortion performed without my client’s consent”. The complainant alleges that the above imputation lowered her image and character in the eyes of public, more particularly among her relations and parents. She further complains that as per the Muslim Personal Law, a woman getting a healthy child gets aborted without the consent of her husband, she is viewed as most down graded woman and she is liable to be discarded. 3. The respondents/A-1, A-3 to A-6, on the other hand, contend that the said publication had to be made by way of public notice of the factum of pronouncing talaq and was not intended to defame the complainant or cast any aspersions on her. 4. Previously, A-1, A-3 to A-6 filed Crl.M.P.No.8168 of 2001 seeking discharge and the learned Magistrate by order dated 04-02-2002 dismissed the said application. Aggrieved by the same, the accused filed Crl.R.C.No.222 of 2002 before this Court. By order dated 26-04-2002, this Court allowed the revision case and set aside the impugned order passed by the learned Magistrate and remitted the matter to the Court of the IV Metropolitan Magistrate, Hyderabad for fresh disposal according to law, in the light of the observations made therein. In the above said order, this Court observed as follows: “Under these circumstances, it is expedient to set aside the impugned order and remand the matter back to the learned Magistrate for fresh disposal according to law. In the above said order, this Court observed as follows: “Under these circumstances, it is expedient to set aside the impugned order and remand the matter back to the learned Magistrate for fresh disposal according to law. If the learned Magistrate is of the view that having regard to the progress of the trial in the case, it is not desirable to proceed with the disposal of the application, he is at liberty to proceed with the trial. On the other hand, if the case is at initial stage, and such an application can be considered, having regard to the law laid down by the apex court and referred to by me in the judgment, he can proceed with the application seeking discharge and dispose of the same by passing appropriate orders on merits.” Subsequently, the matter was again heard by the learned Magistrate and the impugned orders were passed on 13-12-2002, allowing the application, ordering discharge of A-1, A-3 to A-6. Aggrieved by the order of discharge, the complainant filed the present revision case. 5. Arguments of the learned counsel for the revision petitioner, the learned counsel for respondents 1 to 5 and the learned Public Prosecutor representing the respondent-State are heard. Records are perused. 6. In the earlier order dated 26-04-2002 made in Crl.R.C.No.222 of 2002, this Court held that Exception 9 to Section 499 IPC squarely applies to the present case and the context in which the publication had to be made shall be considered. Exception 9 to Section 499 IPC reads as follows: “Imputation made in good faith by person for protection of his or other’s interests - It is not defamation to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interest of the person making it, or any other person, or for the public good.” 7. It is to be noted that the publication was made by A-1 only in connection with pronouncement of talaq, for the purpose of bringing the same to the notice of public. One of the grounds for pronouncing talaq is that the wife got herself aborted without his consent. In the impugned publication, the ground on which talaq was pronounced was also made known. One of the grounds for pronouncing talaq is that the wife got herself aborted without his consent. In the impugned publication, the ground on which talaq was pronounced was also made known. When a public notice is issued regarding pronouncement of talaq, disclosure of the grounds on which the talaq was pronounced cannot be said to be not in good faith. The publication was made not to defame or cast any aspersions on the image or character of the complainant, but was made in the context of pronouncement of talaq and as per the requirement of the personal law, public intimation of pronouncement shall be made. The grounds on which talaq was pronounced appearing in the said publication cannot be construed to be defamatory, as the disclosure of the said grounds was made by the husband to protect his own interest, which situation squarely comes within the protective cover of Exception 9 to Section 499 IPC. The said finding recorded earlier by this Court in the order dated 26-04-2002 has become final. A similar view was taken by this Court in SRI BHASKAR RAJ SAXENA V. SUDERSHAN AUSEKHAR (2001(1) ALT (CRL) 168). The matter was remitted to the learned Magistrate to consider the desirability or otherwise to proceed with the disposal of the application for discharge at a stage when the complainant had already been examined. Subsequent to remand, the learned Magistrate in the impugned order held that the main case is still at the initial stage of examination of the complainant and the application seeking discharge is maintainable even at that stage, in view of the decision of the Apex Court in K.M.MATHEW V. STATE OF KERALA (1992 Crl.L.J 3779). Accordingly, the learned Magistrate allowed the application and directed discharge of the accused on the ground that it would be futile to proceed with the trial of the case, as the allegations made by the complainant do not constitute an offence under Section 500 IPC. While passing the impugned order, the learned Magistrate placed reliance on the decision of the Apex Court in K.M. Mathews’s case (2 supra) and held that the application for discharge was maintainable. In a subsequent decision in ADALATH PRASAD V. ROOPLAL JINDAL AND OTHERS ( (2004)7 SCC 338 ), the Apex Court overruled the decision in K.M.Mathews’s case (2 supra) and held as follows: “14. In a subsequent decision in ADALATH PRASAD V. ROOPLAL JINDAL AND OTHERS ( (2004)7 SCC 338 ), the Apex Court overruled the decision in K.M.Mathews’s case (2 supra) and held as follows: “14. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew case that before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Sections 200 and 202, and the only stage of dismissal of the complaint arises under Section 203 of the Code at which stage the accused has no role to play, therefore, the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under Section 203 of the Code on a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage. 15. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of the Code”. 8. In the present case, Crl.M.P.No.8168 of 2001 was filed by the accused under Sections 202 and 204 Cr.P.C., praying to drop the proceedings against them and that they may be discharged. The said application was filed on 29-08-2001 subsequent to receipt of summons. A perusal of the record would show that the learned Magistrate before taking the case on file, examined the complainant and recorded her sworn statement and on being satisfied that there was a prima facie case to proceed against the accused for the offence under Section 500 IPC, took the complaint on file and directed issuance of process against the accused. In Adalath Prasad’s case (3 supra), the Apex Court held that even if the order of the Magistrate taking cognizance is vitiated for the reason that there was no allegation against the accused nor any incriminating material against them, the relief of the aggrieved accused against whom the process had already been issued is not to invoke Section 203 Cr.PC., as the Code does not contemplate review of an order and the remedy lies in invoking Section 482 Cr.P.C., of the Code. In the above decision, the Apex Court held that the earlier view taken in K.M. Mathew’s case (2 supra) i.e., if the process is issued without there being an allegation in the complaint involving the accused in the commission of a crime, it is open to the summoned accused to approach the Court issuing the summons and convince the Court that there is no such allegation in the complaint which requires his summoning, and for recalling the order of summons no specific provision of law is required, does not lay down the correct law. 9. 9. In the light of the principles laid down by the 3-Judge Bench of the Apex Court in Adalath Prasad’s case (3 supra), Crl.M.P.No.8168 of 2001 filed by the accused seeking discharge is not maintainable, as the learned Magistrate has issued process against them after taking cognizance of the offence on being satisfied over the existence of a prima facie case against them and such order of taking cognizance cannot be recalled by the Magistrate, in the absence of any specific provision in the Code for such recalling or review and there being no inherent powers vested with the subordinate criminal courts. It is, however, open for the accused to avail the remedy under Section 482 Cr.P.C. 10. In the circumstances and for the reasons stated above, it is held that Crl.M.P.No.8168 of 2001 in C.C.No.881 of 1999, on the file of the Court of the IV Metropolitan Magistrate, Hyderabad, filed by the accused, is not maintainable and the impugned order dated 13-12-2002 of the learned Magistrate allowing the said Crl.M.P and ordering discharge of the accused, is held liable to be set aside and the same is accordingly set aside. 11. In the result, the criminal revision case is allowed.