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Rajasthan High Court · body

2011 DIGILAW 1754 (RAJ)

Shaukat Ali v. Abdul Gafoor

2011-08-18

R.S.CHAUHAN

body2011
Hon'ble CHAUHAN, J.—These three petitions challenge the same order, namely order dated 1.5.2001, passed by the Additional Sessions Judge, Baran, whereby the learned Judge has quashed and set aside the cognizance order passed by the Civil Judge (Junior Division) and Judicial Magistrate Mangrol, District Baran. Moreover, these three petitions raise the same legal issue namely whether an excommunication from the community amounts to defamation under Sections 499 IPC or not? Since these petitions arise out of the same impugned order, and raise the same legal issue, they are being decided together by this common judgment. 2. The facts are being taken from the case of Abdul Gafoor vs. Mohammad Ibrahim, S.B. Criminal Revision Petition No. 520/2001. Briefly, the facts of the case are that Abdul Gafoor filed a complaint before the Civil Judge (Junior Division) and Judicial Magistrate Mangrol District Baran. In the said complaint, he claimed that he is a respectable person to Mangrol. He further claimed that he is a member of New Hathai Panchayat. the Chairman of the Panchayat is Noor Mohammad. According to him, the respondents are members of Intzamiya Committee General Panchayat Mominan, Mangrol. On 27.4.1998, they passed a resolution, namely Resolution No.61, wherein the members excommunicated seven persons from the community, including him, on the ground that they had gone and participated in a "Nikha" organized by Jan Mohammad, who was already excommunicated by the Committee. According to Abdul Gafoor, his excommunication from the community has lowered his prestige within the community. Thus, defamation has been committed against him. The learned trial Court recorded the statements of Abdul Gafoor under Section 200 Cr.P.C., and that of his witnesses under Section 202 Cr.P.C. Subsequently, vide order dated 6.2.1999, the learned Magistrate took cognizance of offence under Section 500 IPC. However, as the respondents were aggrieved by the cognizance order, they challenged the same before the learned Judge. Vide order dated 1.5.2001, the learned Judge set aside the cognizance order. Hence, these petitions filed by the persons who have been excommunicated by the respondents. 3. Mr. Kapil Gupta, the learned counsel for the petitioners, has contended that excommunication from the community ousts the person from the community. The excommunication boycotts such a person from all social occasions. According to the learned counsel such an act harms the reputation of the person. 3. Mr. Kapil Gupta, the learned counsel for the petitioners, has contended that excommunication from the community ousts the person from the community. The excommunication boycotts such a person from all social occasions. According to the learned counsel such an act harms the reputation of the person. Thus, the act of excommunication falls within the definition of word "defamation" given under Section 499 IPC. Secondly, the learned Judge has merely relied upon the cases Khalil and Ors. vs. State of Rajasthan and Anr. (1994(19) R.Cr.C. 290), in order to conclude that the learned Magistrate was unjustified in taking the cognizance for offence under Section 500 IPC. However, according to the learned counsel, the case of Khalil and Ors. (supra) suffers from subsilentio as this Court while holding that the excommunication does not tantamount to defamation, has not given any reason for reaching such a conclusion. In fact, this Court has neither discussed the ambit and scope of Section 499 IPC, nor discussed whether excommunication would fall within the well-known exception prescribed under Section 499 IPC. Since the judgment is subsilentio, it is not binding on the courts. Thirdly, if the Community associations were permitted to excommunicate a person from the membership of the community, it would be armed with unbridled powers. Considering the large number of commands, and "Fathwas" which are being issued by community associations - be they Caste Panchayats or associations like the present one, their powers should be restrained by the Court. 4. The learned Public Prosecutor, in all fairness, and in view of this Court rightly so, has not challenged the position taken by the learned counsel for the petitioner. 5. Heard the learned counsel and examined the impugned orders and perused the record submitted before this Court. 6. The bare perusal of the record clearly reveals that the respondents had initially excommunicated Jan Mohammad ostensibly on the ground that he had illegally encroached upon a waqf property. Since seven persons of the community had joined a "Nikha" organized by Jan Mohammad in his family on 27.4.1998, vide Resolution No.61, these seven persons were equally excommunicated from the community. 7. Excommunication is an ancient form of punishment to a person for having violated a command issued by a political sovereign, or for having violated a norm established by the society. A political sovereign had the power to extern a person beyond the boundaries of his kingdom. 7. Excommunication is an ancient form of punishment to a person for having violated a command issued by a political sovereign, or for having violated a norm established by the society. A political sovereign had the power to extern a person beyond the boundaries of his kingdom. Similarly, religious leaders had the power to excommunicate a person from the community at large. In the Middle Ages in Europe, excommunication was a popular means of punishing someone by the Roman Catholics Church. The church had excommunicated even King Henry VIII of England. The effect of excommunication is that a person looses his prestige and reputation in the eyes of his fellow beings. Consequently, he is not permitted to interact with his fellow beings. He cannot even share his food or water with other members of the community. Since the person is shunned by the society, his economic survival is endangered. In fact, he becomes a person non-grata; for all practical purposes be becomes an outcaste. Anyone found interacting with such a person is equally liable to be punished by the community at large. 8. Section 499 IPC defines the word "defamation" in the following terms of Section 499 IPC : "499. Defamation.—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. Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.—No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers he moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful. It further illustrates the exceptions of defamation as under : First Exception.—Imputation of truth which public good requires to be made or published.—It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact. Second Exception.—Public conduct of public servants.—It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further. Third Exception.—Conduct of any person touching any public question.—It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further. Fourth Exception.—Publication of reports of proceedings of Courts.—It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings. Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned.—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. Sixth Exception.—Merits of public performance.—It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further. Seventh Exception.—Censure passed in good faith by person having lawful authority over another.—It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. Eighth Exception.—Accusation preferred in good faith to authorised person.—It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation. Ninth Exception.—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 interests of the person making it, or of any other person, or for the public good. Tenth Exception.—Caution intended for good of person to whom conveyed or for public good.—It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good. Section 500 IPC prescribes the punishment for defamation. Section 500 IPC as under :- 500. Punishment for defamation.—Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. Section 500 IPC prescribes the punishment for defamation. Section 500 IPC as under :- 500. Punishment for defamation.—Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. A bare perusal of Explanation 4 of Section 499 IPC clearly reveals that no imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful, then the imputation would tantamount to defamation. As mentioned above, excommunication made by the community clearly indicates to the other fellow beings that the person so excommunicated neither deserves their respect, nor their acceptance, and their company should be avoided, and he should be neglected by the community both economically or otherwise, and he/she should be treated as an outcast. Most importantly, the effect of excommunication does not fall within the exception enumerated above. Thus, obviously excommunication would fall within the definition of word "defamation" as contained in Section 499 IPC. Therefore, in the opinion of this Court, the learned Magistrate was certainly justified in taking cognizance for offences under Section 500 IPC as prima facie the statement recorded under Sections 200 and 202 IPC made out a case against the respondents. The learned Judge has relied upon the case of Khalil & Ors. (supra) to justify his reasoning for quashing the cognizance order. The reasoning given in Khalil and Ors. (supra) by this Court is as under : The only act amounting to an offence under Section 500 of the IPC, as alleged in the complaint filed by the respondent No.2, was the resolution, passed by the members of the community, according to which resolution, the members have decided not to have any contacts with he respondent No.2 and to treat him as excommunicated. The decision about the social sanction in regard to the respondent No.2, taken by the members of the community, cannot, in any ay, amount to an offence. The decision about the social sanction in regard to the respondent No.2, taken by the members of the community, cannot, in any ay, amount to an offence. If the members of the community feel that the respondent No.2 has done such act, which debars him from being given the benefits of the community, such decision cannot be said to attract any criminal provision. If the respondent No.2 is aggrieved by the wrongful decision of the members of the community, he may have a civil right, which may be enforced by him by taking appropriate civil proceedings. The learned Magistrate, in my view, wrongly took cognizance on the basis of the complaint and proceeded to record statements of he witnesses under Section 202 of the Code. In my view, the complaint-proceedings are nothing but abuse of he process of the court, and if they are allowed to continue, this will cause unnecessary harassment and injustice." With respect, the reasoning given tantamounts to merely conclusion drawn by the learned Judge. The learned Judge concluded that "a decision about social sanction in regard to the respondent No.2, taken by the members of the community, cannot, in any way, amount to an offence". However, the learned Judge does not reveal as to how the decision does not amount an offence. Furthermore, the learned Judge claims that although he decision may amount to breach of civil right, but it does not attract any criminal provision. Again, the learned Judge gives no reason as to why the criminal provisions are not attracted. Hence, without giving any cogent reasoning, the learned Judge merely concludes that the cognizance taken by the learned Magistrate is misplaced. He further concludes that the proceedings would amount to abuse of the process of the Court. thus, he quashes the criminal proceedings. In the humble opinion of this Court, the learned Judge has failed to consider the scope and ambit of Section 499 IPC. he has further failed to consider whether the case would fall under any of the explanations enumerated therein or not. Hence, the reasoning given in the case of Khalil (supra) suffers from being sub-silentio. Thus, the case of Khalil (supra) is not binding on the Court of law. Therefore, the learned Judge is not justified in relying upon the said case law for quashing of the cognizance order. Hence, the reasoning given in the case of Khalil (supra) suffers from being sub-silentio. Thus, the case of Khalil (supra) is not binding on the Court of law. Therefore, the learned Judge is not justified in relying upon the said case law for quashing of the cognizance order. Therefore, this Court quashes and sets aside the order dated 1.5.2001 and confirms the cognizance order dated 6.2.1999 passed by Civil Judge (Junior Division) and Judicial Magistrate Mangrol District Baran in Complaint Case No. 10/1998, order dated 6.3.1999 passed by Civil Judge (Junior Division) and Judicial Magistrate Mangrol District Baran in Complaint Case No. 8/1998 and order dated 5.4.1999 passed by Civil Judge (Junior Division) and Judicial Magistrate Mangrol District Baran in Complaint Case No. 13/1998. The petitions are, hereby, allowed.