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2008 DIGILAW 257 (KAR)

C. M. Ibrahim v. Tata Sons Limited

2008-05-31

H.N.NAGAMOHAN DAS

body2008
ORDER H.N. Nagamohandas, J. In this petition the petitioner has prayed for quashing the entire proceedings in C. C. No. 11748/2004 pending on the file of Chief Metropolitan Magistrate at Bangalore. 2. The respondent contends that on 24.03.2004 the petitioner held a press meeting at Bangalore and made defamatory allegations against the respondent - Tata Sons Limited (‘the Company’ for short). The allegations made by the petitioner came to be reported in the press on 25.03.2004 in two daily English Newspapers, that is The Times of India and The Asian Age. The Times of India. in its edition reported as under: “Speaking to reporters here, Ibrahim said: ‘When I was Civil Aviation Minister Deshpande conspired with the Tatas to get permanent ownership of 2,200 acres of land they also tried to bribe me to permit this.” The Asian Age reported as under: “Former Union Civil Aviation Minister C.M. Ibrahim on Wednesday threw a bomb-shell by claiming that major and Medium Industries Minister R.V. Deshpande had offered him (Ibrahim) money to clear the state government’s proposal to give land to the Tatas on a permanent basis for the Devanahalli international airport. Addressing a press conference, Mr. Ibrahim alleged that Mr. Deshpande wanted to airport at Devanahalli and sought to Centre’s clearance for the same. “He (Deshpande) offered money to me but I refused though we were in the same party.” He added.” 3. The respondent - Company on coming to know of these allegations made in the press, wrote a letter to the petitioner on 25.03.2004 seeking confirmation with regard to the statement attributed in the press and called upon the petitioner to tender an unconditional written apology to be published with equal prominence as the defamatory report in the newspaper which carried the defamatory report. Since the petitioner failed to reply to the letter of the respondent - Company, they filed a private criminal complaint before the trial Court in P.C.R. No. 5832/2004 under Section 200 Cr.P.C. for the offences punishable under Section 499 and 500 IPC. The trial Court by recording the sworn statement of the authorised representative of the respondent - Company by name Sri. V. Hemachandar, had taken cognisance of the private complaint and registered the same in C.C. No. 11748/2004 and issued summons. The trial Court by recording the sworn statement of the authorised representative of the respondent - Company by name Sri. V. Hemachandar, had taken cognisance of the private complaint and registered the same in C.C. No. 11748/2004 and issued summons. Aggrieved by this order of the trial Court taking cognisance of the offence, the petitioner is before this Court under Section 482 Cr.P.C. seeking quashing of the entire proceedings before the trial Court. 4. It is not in dispute that during the pendency of this petition the petitioner appeared before the trial Court and on 28.03.2007 the plea of the petitioner was recorded. Now the matter is set down for evidence. 5. Sri. M T. Nanaiah. learned Senior Counsel for the petitioner contended, that the authorised representative of the respondent – Company is not the aggrieved person and as such the trial Court committed an error in taking cognizance of the offence. The proceedings before the trial Court are initiated by the authorised representative of the respondent – Company without the leave of the Court as required under Section 302 Cr.P.C. A reading of the press report only suggests the name of ‘Tatas’, but the name of the respondent - Company shown in the cause title before the trial Court is ‘Tata Sons limited’, as such they are two different entities. The averments made in the press report, even if it is taken as true, the same do not constitute an offence under Section 499 IPC. A reading of the press report specifies that the name of the former Minister Sri.R. V. Deshpande and Tatas are mentioned. But Sri. R. V. Deshpande has not initiated any proceedings and he was also not cited as a witness and therefore the complaint filed by respondent - Company is unsustainable in law. Reliance is placed on the following decisions. 1. Fr. Thomas Maniankerikalam and Another Vs. Thomas J. Padiyath and Another. 2003 Crl. L.J. 945. 2. Jimmy Jahangir Madan Vs. Bolly Cariyappa Hindley (D) BY LRs, ILR 2005 Kar 1226. 6. Per contra Sri. Reliance is placed on the following decisions. 1. Fr. Thomas Maniankerikalam and Another Vs. Thomas J. Padiyath and Another. 2003 Crl. L.J. 945. 2. Jimmy Jahangir Madan Vs. Bolly Cariyappa Hindley (D) BY LRs, ILR 2005 Kar 1226. 6. Per contra Sri. C.H. Hanumantharaya, learned Counsel for the respondent - Company contended that the petitioner without exhausting the alternative remedy of filing a criminal revision petition against the order of the trial Court in taking cognizance of the offence summoning the accused and recording the plea is not entitled to file the present petition under Section 482 Cr.P.c. and as such the petition is liable to be dismissed as not maintainable. The failure of the former minister Sri. R.V. Deshpande to initiate proceedings against the petitioner is not a bar for the respondent - Company to initiate the proceedings. He further contends that at any time before the judgment is delivered by the trial Court the respondent - Company is entitled to file additional list of witnesses and it is also open for the Court under Section 311 Cr.P.C. to summon a witness whose presence is essential for just disposal of the case. Therefore, he contends that the non-joining of former minister Sri. R.V. Deshpande in filing the private criminal complaint before the trial Court or not citing him as a witness is not fatal to the case. Whether the allegations made in the press report are true or not, or whether the same is intentional or not, are all matters which are required to be examined by the trial Court after recording evidence and at this stage it is not proper for this Court to exercise its discretionary power under Section 482 Cr.P.C . 7. Heard arguments on both the side and perused the entire papers. 8. Learned Counsel for respondent-company contended that without exhausting alternative remedy of filing a criminal revision petition or appeal against the impugned order of trial Court taking cognizance of offence, issuing process and recording plea, the present criminal petition under Sec.482 Cr.P.C is not maintainable. This contention of learned Counsel for respondent is unacceptable to me. 9. The Supreme Court in M/s Pepsi Foods Ltd Vs. This contention of learned Counsel for respondent is unacceptable to me. 9. The Supreme Court in M/s Pepsi Foods Ltd Vs. Special Judicial Magistrate (AIR 1998 SC 128) held “that the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceedings quashed against him when the complaint does not make out any case against him and still he must undergo the agony of criminal trial.” “It may not however be lost sight of that provisions exist in the code of revision and appeal but some time for immediate relief Sec.482 of the Code or Article 227 may have to be resorted for correcting some grave errors that might be committed by the subordinate Courts.” In G.Sagar Suri Vs. State of UP 2000(2) SCC 636 the Supreme Court held “merely because the accused persons had already filed an application in the Court of Additional Magistrate for their discharge, it cannot be urged that the High Court cannot exercise its jurisdiction under Section 482 of the Code.” The word ‘inherent powers’ specified in Section 482 is not defined in the Code. But through several judicial pronouncements the Apex Court held as to when the High Court can exercise the inherent powers. If the High Court is satisfied that there is great miscarriage of justice or abuse of the process of the Court or the required statutory provisions had not been complied with or to secure the ends of justice, in that event, it is but the duty of Court to have it corrected at the inception by exercising its inherent powers. Therefore the amplitude of inherent powers of this Court under Section 482 of the code is not affected by the existence of revisional and appellate remedy available under the code. But this inherent power shall not be exercised as a matter of rule but exceptionally, sparingly and in rarest of rare cases. Now I have to examine whether there exists any exceptional circumstances in this case for exercising the inherent power. 11. But this inherent power shall not be exercised as a matter of rule but exceptionally, sparingly and in rarest of rare cases. Now I have to examine whether there exists any exceptional circumstances in this case for exercising the inherent power. 11. The contention of the learned Senior Counsel for the petitioner that the authorised representative of the respondent - Company is not an aggrieved party and as such the complaint before the trial Court is liable to be quashed is unacceptable to me. Section 199 Cr.P.C. specifies that no Court shall take cognizance of an offence punishable under Chapter 21 of IPC, except upon a complaint made by some person aggrieved by the offence. The Criminal Procedure Code do not define as to what is meant by a person. But Section 11 of we defines the word ‘person’ to include any company or association or body of persons whether incorporated or not. It is not in dispute that respondent - Company is a registered public limited company. It is this company which is the complainant before the trial Court in P.C.R. No. 5832/2004. The respondent - Company filed the complaint before the trial Court through its authorised representative. It is needless to say that a company is a person in law and not in fact. A person in law is always required to be represented by a person in fact. The respondent - Company by a resolution authorised a person to file and prosecute the private complaint before the trial Court. Accordingly, the respondent - Company has filed the private complaint through its authorised representative. It is not the authorised representative who is a party before the trial Court but on the other hand it is the respondent- Company who is the complainant before the trial Court. It is the respondent - Company who is aggrieved person in the instant case. Therefore filing of a complaint by an aggrieved company through its authorised representative is in accordance with law and the same is maintainable. 12. Secondly learned Senior Counsel for the petitioner contended that without prior leave of the Court the authorised representative of the respondent - Company filed the petition before the trial Court and as such the same is liable to be quashed. 12. Secondly learned Senior Counsel for the petitioner contended that without prior leave of the Court the authorised representative of the respondent - Company filed the petition before the trial Court and as such the same is liable to be quashed. In support of this contention the learned Counsel for the petitioner placed reliance on a decision of the Supreme Court in the case of Jimmy Jahangir Madan Vs. Bolly Cariyappa Hindley (D) By LRs, ILR 2005 Kar. 1226. In Jimmy Jahangir’g case the Supreme Court considered the scope of Section 205 and 302 Cr.P.C. Section 205 Cr.P.C. deals with dispensation of the personal attendance of a accused. Section 302 deals with permission to conduct prosecution. In the instant case the question of dispensation of the personal appearance of the accused or the complainant is not the question to be considered. In so far as Section 302 Cr.P.C. is concerned, the authorised representative of the respondent - Company is not intending to prosecute the proceedings by person. Before the trial Court the respondent - Company through its authorised representative engaged a Counsel to prosecute the proceedings. On the other hand the Supreme Court in Jimmy Jahangir’s case noticed the fact that the power of attorney holder of the complainant wanted to prosecute the proceedings for himself. In the present case the respondent Company through its authorised representative engaged a Counsel and prosecuting the proceedings. Therefore the law laid down by the Supreme Court in Jimmy Jahangir’s case has no application to the facts of the present case. 13. The other judgment cited by the learned Counsel for the petitioner in Fr. Thomas Maniankerikalam and Another Vs. Thomas J. Padiyath and Another, 2003 Crl.L.J. 945 will in no way assist or support the averment advanced by the learned Senior Counsel for the petitioner. On the other hand the law laid down by the Kerala High Court in Fr. Thomas’s case will support of the contention of the learned Counsel for the respondent - Company. 14. Learned Senior Counsel for the petitioner contended that the press reports in question specifies the name of former Minister Sri Desbpande and also Tatas. It is contended that the former Minister Sri Desbpande has not initiated any criminal proceedings against the petitioner and as such respondent-Company alone is not entitled to maintain a private complaint against the petitioner. 14. Learned Senior Counsel for the petitioner contended that the press reports in question specifies the name of former Minister Sri Desbpande and also Tatas. It is contended that the former Minister Sri Desbpande has not initiated any criminal proceedings against the petitioner and as such respondent-Company alone is not entitled to maintain a private complaint against the petitioner. I decline to accept this argument of the learned Senior Counsel for the petitioner. If for any reason the former minister Sri Deshpande has refused to join the respondent - Company in filing the private complaint or his failure to maintain a separate petition against the petitioner is not a bar or impediment for the respondent-Company to proceed against the petitioner for the alleged defamation. Merely because the former minister Sri Deshpande keeps silent over the matter it cannot be presumed that the respondent-Company shall also keep silent over the matter. Therefore the respondent - Company is entitled to maintain an independent complaint irrespective of the fact whether the former Minister Sri. Deshpande joins them or fails to file a separate complaint. 15. The other contention of the learned Senior Counsel for the petitioner that even in the list of witnesses produced by the respondent-Company before the trial Court the name of Sri. Deshpande who is a very vital and important witness is not mentioned and therefore on this ground the proceedings before the trial Court are liable to be quashed is unfounded. If for any reason the respondent - Company refuses or fails to examine a material witness which throw light on the issue in controversy, certainly it is open for the trial Court to draw adverse inference against such party under Section 114(g) of the Evidence Act. There is some force in the contention of the learned Senior Counsel for the respondent-Company that it is always open for them that at any time, before the judgment is delivered by the trial Court. to file additional list of witnesses or to invoke the provisions of Section 311 Cr.P. C. to summon a witness who is essential for just disposal of the case. Therefore in the circumstances the failure to cite the former Minister Sri. R. V. Deshpande as a witness in the list of witnesses by the respondent - Company is not fatal to the case of company and on this ground the proceedings cannot be quashed. 16. Therefore in the circumstances the failure to cite the former Minister Sri. R. V. Deshpande as a witness in the list of witnesses by the respondent - Company is not fatal to the case of company and on this ground the proceedings cannot be quashed. 16. Lastly learned Senior Counsel for the petitioner contended that a plain reading of the two press reports relied on by the respondent-Company before the trial Court, even if they are taken as true, do not constitute an inference under Section 499 IPC. The trial Court by considering the averments in the private complaint, the sworn statement and the documents produced by the respondent - Company concludes, that there is a prima facie case to be tried against the petitioner. This conclusion of the trial Court is supported by material on record. Under Section 482 Cr.P.C. it is not proper for this Court to screen or assess the material on record at this stage and to conclude that there is no offence. It is always open for the petitioner before the trial Court to justify his defence and to establish the same by placing acceptable legal evidence. This Court at this stage by only accepting the rival contentions of the parties shall not conclude on the merits of the case. It is settled position of law that interference by this Court by exercising its discretionary power Section 482 Cr.P.C. is not a matter of rule but an exception. I do not find any exceptional circumstances in this case to exercise my discretionary power to quash the proceedings before the trial Court at this stage. 17. The alleged incident had taken place in March 2004, the complaint was filed in the year 2004, plea was recorded in the year 2007 and now we are in 2008. Having regard to the length of time consumed, the nature of offence in question and also by taking into consideration the interest of both the parties, I am of the opinion that a direction is required to be issued to the trial Court to dispose the matter in accordance with law within a time frame. For the reasons stated above, the following; ORDER I. Criminal petition is hereby dismissed. II. The trial Court is directed to dispose the matter in accordance with law within a time frame of six months from the date of receipt of copy of this order. For the reasons stated above, the following; ORDER I. Criminal petition is hereby dismissed. II. The trial Court is directed to dispose the matter in accordance with law within a time frame of six months from the date of receipt of copy of this order. III. The other contentions are left open.