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2011 DIGILAW 292 (CAL)

Bir Chandra Das v. Anil Kumar Sarkar

2011-03-02

ASHIM KUMAR BANERJEE

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JUDGMENT : ASHIM KUMAR BANERJEE. J. Respondent no.1 Anil Kumar Sarkar made a complain with the Police that his brother late Sureswar Das committed suicide being instigated by a section of monks of ISKCON at the instigation of the petitioner Bir Chandra Das. The incident started on June 29, 2000 when one Basanti Devi lodged a complaint with the Officer-in-Charge, Ballygunge Police Station against Sureshwar Das. According to the said complaint, Basanti was a resident of Orissa. Her husband died in August 2009 due to lack of medical treatment and negligence of Adri Dharan Das, a monk of ISKCON where her husband was working for twenty years. After her husband’s death she was getting rupees two thousand per month as compensation. Adri Dharan Das also agreed to pay a sum of rupees two lacs which was not paid despite promise. On June 29, 2009 when she came to collect her monthly maintenance Adri Dharan refused to pay and asked her to go to Gurusadaya Dutta Road, Kolkata and collect money from Sureswara Das. Accordingly, Basanti went there and met Sureswara. Sureswara ravished her and threatened her with dire consequence. The Police immediately acted on the said complaint and arrested Sureswara. It appears that the Police ultimately submitted a final report wherein the Investigating Officer observed that Sureswara was falsely implicated in the said case. However Sureswara by that time committed suicide in custody due to depression. While doing so, he left a suicidal note involving some of the monks including Bir Chandra. Since then the brother of Sureswara, Anil Kumar was moving one after the other complaint as against the persons named by Sureswara in his suicidal note. Anil filed an application under Section 211 of the Indian Penal Code against Basanti Devi for lodging a false complaint. With regard to the report on the suicide Anil filed a “Naraji” petition alleging that the Police did not investigate the case properly. Ultimately, Anil filed an application under Section 200 of the Criminal Procedure Code against Basanti, Bir Chandra and five others implicating them under Section 120-B/211/376 of the Indian Penal Code read with Section 500 thereof. The learned Magistrate after hearing the complaint observed that prima facie case was established against the accused committing offence punishable under Section 211/500 of the Indian Penal Code read with Section 120-B thereof and accordingly directed process to be issued. The learned Magistrate after hearing the complaint observed that prima facie case was established against the accused committing offence punishable under Section 211/500 of the Indian Penal Code read with Section 120-B thereof and accordingly directed process to be issued. Bir Chandra approached this Court for quashing of the said proceeding being Case No.C-2002/2008. Mr. Kazi Sofiullah, learned counsel appearing for the petitioner contended that the complaint made under Section 211 was not maintainable in view of the fact that only the Court where such false implication was made, was competent to lodge the complaint and initiate proceeding under Section 211. He also contended that since the complaint was lodged in respect of one single incident and the offence was said to be interlinked the entire complaint must be quashed being not maintainable. Mr. Sofiullah relied on a Single Bench decision of this Court wherein Partha Sakha Datta,J. (as His Lordship then was) considered and rejected the prayer of Anil as against the final report. While doing so, His Lordship made some observations about the present complaint which I am now considering. Mr. Sofiullah took me to internal pages 8, 9, 10 and 15 of the said decision. Mr. Sofiullah also relied on an Apex Court decision in the case of Kamalapati Trivedi –VS- The State of West Bengal reported in All India Reporter 1979 Supreme Court Page-777 to support his contention that offence under Section 211 could only be complained by the Court and/or the Magistrate before whom such offence was committed. Mr. Joymalya Bagchi, learned counsel appearing for the respondent in his usual fairness conceded that in view of the decision in the case of Kamalapati Trivedi (Supra), the proceeding could not be held to be maintainable under Section 211. He however strenuously disputed the contention of Mr. Sofiullah that the offence under Section 500 was interlinked and as such could not be independently tried even if Section 211 was dropped. According to Mr. Bagchi, Section 500 would denote criminal defamation. The said Section provides that whoever defames another shall be punished. In the instant case, Sureswara was defamed by the accused by making a false implication which ultimately compelled him to commit suicide out of depression. Hence, such proceeding irrespective of Section 211 could stand on its own. Mr. According to Mr. Bagchi, Section 500 would denote criminal defamation. The said Section provides that whoever defames another shall be punished. In the instant case, Sureswara was defamed by the accused by making a false implication which ultimately compelled him to commit suicide out of depression. Hence, such proceeding irrespective of Section 211 could stand on its own. Mr. Bagchi relied on the decision in the case of Basir-Ul-Huq & Others – VS- State of West Bengal on the complaint of Dhirendera Nath Bera reported in All India Reporter 1953 Supreme Court Page-293 wherein an identical issue as raised by Mr. Sofiullah was negated by the Apex Court. In the said case the appellants contended that the Magistrate had no jurisdiction to take cognizance of the complaint under Section 500 and Section 297 of the Indian Penal Code, as the facts disclosed constituted an offence under Section 182 which offence could not be tried except on a complaint made by a public servant. Such question was answered in the negative and the appeal was dismissed. The Apex Court observed that the charge under Section 500 constituted a distinct offence than filing a false report before a public servant. On the issue of defamation Mr. Bagchi cited an age old decision reported in All India Reporter 1921 Calcutta Page-1 (Satis Chandra Chakrabarti-VS- Ram Dayal De) of Sir Ashutosh Mookerjee,J., the Acting Chief Justice (as His Lordship the then was). Speaking for a Five Judge Bench, His Lordship observed that refused to sanction to prosecute under Section 195 where defamatory statement was made in a judicial proceeding would not debar a complaint made under Section 500 of the Indian Penal Code. Their Lordships summarized the views in paragraph 22 which is quoted below :-“(1) If a party to a judicial proceeding is prosecuted for defamation in respect of a statement made therein on oath or otherwise, his liability must be determined by reference to the provisions of Section 499, Indian Penal Code. Under the Letters Patent, the question must be solved by the application of the provisions of the Indian Penal Code and not otherwise; the Court cannot engraft thereupon exceptions derived from the Common Law of England or based on grounds of public policy. Consequently, a person in such a position is entitled only to the benefit of the qualified privilege mentioned in Section 499, Indian Penal Code. Consequently, a person in such a position is entitled only to the benefit of the qualified privilege mentioned in Section 499, Indian Penal Code. (2) If a party to a judicial proceeding is sued in a Civil Court for damages for defamation in respect of a statement made therein on oath or otherwise, his liability, in the absence of statutory rules applicable to the subject, must be determined with reference to principles of justice, equity and good conscience. There is a large preponderance of judicial opinion in favour of the view that the principles of justice, equity and good conscience applicable in such circumstances should be identical with the corresponding relevant rules of the Common Law of England. A small minority favours the view that the principles of the Common Law of England. A small minority favours the view that the principles of justice, equity and good conscience should be identical with the rules embodied in the Indian Penal Code.” The parties also cited the following decisions : i) State of Orissa-VS- Sudhansu Sekhar Misra and Others reported in All India Reporter 1968 Supreme Court Page-647. ii) P.D. Lakhani & Anr. –VS-State of Punjab and Another reported in 2008 Volume-V Supreme Court Cases Page-150 iii) M.A. Rumugam -VS- Kittu alias Krishna-moorthy reported in 2009 Volume-I Supreme Court Cases Page 101. I have considered the rival contentions and the precedents cited at the Bar. On a combined reading of the law on the subject I am of the view that in view of the decision in the case of Kamalapati (Supra) and the clear mandate of Section 195 of the Criminal Procedure Code the proceeding under Section 211 would not be maintainable. Question thus remains whether the case could be proceeded with for the other offences. If we read Section 211 and 500 together we would find a clear distinction. Section 211 imposes a punishment in case of a false charge or offence made with the intent to injure someone before any Court of law whereas Section 500 provides for punishment in case of a defamation of a person by any one. If we read Section 211 and 500 together we would find a clear distinction. Section 211 imposes a punishment in case of a false charge or offence made with the intent to injure someone before any Court of law whereas Section 500 provides for punishment in case of a defamation of a person by any one. Defamation has been defined under Section 499 which provides inter alia 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 excepted, to defame that person. Making a false complaint before a Court of law would amount to committing fraud on Court. It is for the Court to proceed against the erring person. The provision has been made to preserve the sanctity of the Court. Section 500 gives right to sue to a person who is defamed within the meaning of Section 499 by the conduct of the accused. These two provisions are totally distinct and can be tried in absence of each other. The application thus succeeds in part. The complaint case being no.C-2002 of 2008 initiated under Section 211/500/120-B now pending before the Court of Judicial Magistrate (9th), Alipure is quashed to the extent of Section 211. I abundantly make it clear that the said proceeding being C-2002 of 2008 would continue to be proceeded with under Section 500/120-B of the Indian Penal Code. CRR 2993 of 2010 is disposed of.