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2014 DIGILAW 387 (KAR)

V. Kumar Subramaniam v. S. Suchindranath Aiyer

2014-03-21

S.N.SATYANARAYANA

body2014
ORDER : S.N. Satyanarayana, J. 1. The accused No. 1 to 10 in C.C. No. 69/2010 pending on the file of VIII ACMM, Bangalore, registered for an offence punishable under Section 500 of IPC, have come up in this proceeding seeking quashing of the aforesaid criminal proceeding. 2. Admittedly, the sole respondent, who is complainant filed a private complaint against, petitioners 1 to 10, who are accused 1 to 10 in PCR. No. 10868/2009 seeking referring the matter i.e., the publication of show cause notice dated 18.10.2008 and also the order of suspension passed against him on 24.10.2008 by accused 1 to 10 for investigation, and also for filing of FIR and charge sheet by jurisdictional police for the offence punishable under Section 500 of IPC. The fact that petitioners and respondent are the members of Bangalore Club is not in dispute. It is also not in dispute that petitioners 1 to 10 are the members of general committee, constituted by the said club to go in to the conduct of respondent in causing certain acts on 2nd and 7th of October 2008 within the precincts of the club. It is further not in dispute that in the enquiry that was conducted by the committee, consisting of petitioners 1 to 10 as members, the respondent appeared and tried to substantiate his conduct in the precincts of the club on the aforesaid days i.e., smoking in the Men's Bar. 3. The brief facts leading to this litigation are that on 2nd and 7th of October, 2008 the respondent is said to have smoked in the Men's Bar when there was a specific notice displayed in preventing any of the members from smoking in Men's Bar or in any other restricted place, within the precincts of the club. When a notice was issued calling upon him to appear before the committee constituted with accused Nos. 1 to 10 as members by the managing committee of the club, the respondent is said to have appeared before said committee in an enquiry which is conducted on 23.10.2008. It is stated that, in said meeting, he did accept smoking in the Men's Bar on both the dates and tried to substantiate the same on the ground that he was not informed regarding the Men's Bar being notified as non smoking area. It is stated that, in said meeting, he did accept smoking in the Men's Bar on both the dates and tried to substantiate the same on the ground that he was not informed regarding the Men's Bar being notified as non smoking area. The committee, after conducting the enquiry, by its order of even date imposed a punishment of suspension from the club, wherein respondent was restrained from using the facilities of club for a period of six months i.e., the period during which his membership was kept under suspension. It is seen that, the outcome of enquiry which had taken place on 23.10.2008 was published in the notice board of the club on 24.10.2008, wherein in the second paragraph of the notice it is mentioned as under: For the information of members Mr. S. Suchindranath Aiyer (S-683) had willfully breached the statutory smoking restriction imposed on the Club under the prevailing laws of the land and vandalized Club property during the above said period. 4. The respondent being aggrieved by the same, filed the private complaint in PCR. No. 10868/2009 seeking the aforesaid directions. In said proceeding, based on the sworn statement of respondent filed in the form of affidavit, the learned Magistrate took cognizance of an offence and ordered for issuance of summons, which is challenged in this proceeding by accused 1 to 10 in said private complaint. It is seen that, pursuant to the order dated 29.12.2009, which is challenged herein, the PCR is registered as C.C. No. 69/2010, which is sought to be quashed in this proceeding. 5. The grounds urged by petitioners 1 to 10 are that, there is no willful act of defamation committed by petitioners 1 to 10 against respondent. It is their contention that the conduct of respondent on 2nd and 7th of October 2008 called for initiating a proceeding by the club, for which a committee was constituted consisting of petitioners 1 to 10 as members of general committee to go in to the conduct of respondent on 2nd and 7th of October 2008 in smoking in Men's Bar and putting the cigarette butts on the wooden floor of Men's Bar, which is an act of vandalism. It is also stated that, to a specific question regarding why did he smoke in Men's Bar, the respondent has stated that he has no explanation for that. It is also stated that, to a specific question regarding why did he smoke in Men's Bar, the respondent has stated that he has no explanation for that. Further, he has admitted that it is only an act of stupidity since he had already lit the Cigarette and he has gone to the extent of seeking apology stating sorry and assured that he would not be doing that act again. However, since the offence was serious in nature, the committee having found him guilty, handed down the punishment of suspending his membership of club for a period of six months and published the same on the notice board on 24.10.2008, which according to respondent amounts to defamation. 6. Now before going in to the merits of the case, the dictionary meaning of the word Vandalism' requires to be looked in to. The learned Counsel for petitioners would rely on the meaning of the word Vandalism' as it is in Concise Oxford English Dictionary (Indian Edition) 2011, wherein at page 1599 the word Vandalism' is defined as "deliberately destroy or damage (property)". The learned Counsel for respondent would rely on the Black's Law Dictionary VI Edition, wherein at page 1553 the word Vandalism' is defined as under: Such willful or malicious acts as are intended to damage or destroy property. Willful or ignorant destruction of property of another, commonly referring to artistic or literary treasures. Hostility to or contempt for what is beautiful or venerable. Vandalism connotes act of vandal and in ordinary usage is not limited to destruction of works of art, but has broadened its meaning to include destruction of property generally. Within dwelling policy means the willful and malicious destruction of property generally, and the destruction must have been intentional or in such reckless and wanton disregard of rights of others as to the equivalent of intent, and malice may be inferred from act of destruction. 7. With these two definitions in mind, if the complaint is looked in to, the complainant in his private compliant at paragraph 11 has defined the word Vandalism' as "'Vandalism' in common parlance is to be understood as a person often in groups, who especially when drunk or out of control damages property belonging to other people" and on this basis tried to demonstrate before the learned Magistrate that there is an attempt to defame him. According to respondent, the conduct of petitioners in notifying the punishment imposed on him in the notice board of club to demonstrate as if respondent has committed a grave error amounts to defamation. 8. With the dictionary meaning, referred supra, with reference to meaning, which is imported in to the complaint by respondent, what the learned Magistrate has done while accepting whether there is defamation is to be seen in the instant case. Admittedly, in the instant case, when PCR is filed, sworn statement is not recorded by the learned Magistrate in complainant entering the witness box and giving precise statement of the allegation which he has made in the complaint. Instead, he has relied on the abridged version of the compliant in the form of affidavit, which is filed in lieu of his statement, which is accepted and based on that, the learned Magistrate has proceeded to hold that there is no reason for him to disbelieve the contentions of complainant at that stage. That means, the learned Magistrate has neither looked in to the entire complaint, which was filed by the complainant in the form of PCR nor has made any attempt to record the sworn statement based on the complaint. Instead, he has accepted the affidavit, which is filed in lieu of complaint and based on that has proceeded to hold that there is no reason for disbelieving. 9. Now, with reference to the procedure, which is required to be adopted by the learned Magistrate while taking cognizance of an offence alleged in the complaint, Section 200under which the present private complaint is filed and also the relevant provision i.e., Section 190, wherein the learned Magistrate is required to take cognizance of the offence by looking in to the contents of the complaint, are required to be seen. They read thus: 190. Cognizance of offences by Magistrates. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. 200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- X x x x 10. In the instant case, it is obvious that the learned Magistrate has not looked in to the nature of allegation which is made by the complainant against accused 1 to 10 in the said proceeding. Before taking cognizance the learned Magistrate ought to have seen the facts of the case, the circumstances under which notice came to be issued, intention of the accused in publishing the notice, the meaning of the word vandalism, in what context that word is used in the said notice, how it would cause defamation and whether it is done with a deliberate intention or whether it is a requirement on the part of the accused in the said proceeding, who are not only members of the club but also the members of the general committee specifically constituted to go in to the conduct of the complainant, so far as the conduct of complainant's smoking in the Men's Bar on 2nd and 7th of October 2008. It is seen that in the instant case, the learned Magistrate has not at all looked in to any of these aspects, he does not give any opinion on the points framed while taking cognizance, except on the premise that there is no reason for him to disbelieve the complaint, which is erroneous procedure, which is adopted by the learned Magistrate while taking cognizance under Section 190 of Cr.P.C. 11. However, in the instant case, the learned counsel for respondent tried to substantiate the finding of learned Magistrate in taking cognizance of offence relying on the following judgments: a) In the matter of M.N. Damani Vs. However, in the instant case, the learned counsel for respondent tried to substantiate the finding of learned Magistrate in taking cognizance of offence relying on the following judgments: a) In the matter of M.N. Damani Vs. S.K. Sinha, reported in, AIR 2001 SC 2307, wherein at paragraph 7, it is observed as under: Assuming that the imputations made could be covered by exception 9 of Section 499 IPC, several questions still remain to be examined whether such imputations were made in good faith, in what circumstances, with what intention, etc. All these can be examined on the basis of evidence in the trial. Relying on this decision, the learned Counsel tried to substantiate that the learned Magistrate has taken cognizance on the ground that there is sufficient material to establish the offence and the same can be established only by conducting a trial, which is essential in the instant case. Therefore, he submits that the cognizance taken by the learned Magistrate is sustainable and question of quashing the taking of cognizance of offence would not arise. b) In the matter of Bhushan Kumar vs. State (NCT of Delhi), reported in, AIR 2012 SC 1747 , wherein at paragraphs 8 and 10, it is observed as under: 8. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code. 10. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. 10. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued. Relying on this judgment, the learned Counsel tried to substantiate that what is required for taking cognizance is subjective satisfaction of the judge regarding prima facie material available for taking the cognizance. In the instant case, the learned Magistrate has found that there is sufficient material available for taking cognizance to the subjective satisfaction of the Court. Therefore, registering the criminal complaint pursuant to the PCR is just and proper. c) In the case of Som Mittal vs. Govt. of Karnataka, reported in, (2008) 3 SCC 574 , wherein at paragraph 9 it is observed as under: 9. When the words 'rarest of rare cases' are used after the words 'sparingly and with circumspection' while describing the scope of section 482, those words merely emphasize and reiterate what is intended to be conveyed by the words 'sparingly and with circumspection'. They mean that the power under section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression "rarest of rare cases" is not used in the sense in which it is used with reference to punishment for offences under section 302 IPC, but to emphasize that the power under section 482 Cr.P.C. to quash the FIR or criminal proceedings should be used sparingly and with circumspection. Judgments are not to be construed as statutes. Nor words or phrases in judgments to be interpreted like provisions of a statute. Some words used in a judgment should be read and understood contextually and are not intended to be taken literally. Judgments are not to be construed as statutes. Nor words or phrases in judgments to be interpreted like provisions of a statute. Some words used in a judgment should be read and understood contextually and are not intended to be taken literally. Many a time a Judge uses a phrase or expression with the intention of emphasizing a point or accentuating a principle or even by way of a flourish of writing style. Ratio decidendi of a judgment is not to be discerned from a stray word or phrase read in isolation. By relying on this judgment the learned Counsel contends that in normal circumstance the taking of cognizance of offence should not be quashed by the High Court in exercise of its inherent power Under Section 482 of Cr.P.C. and that has to be used in rarest of rate cases. 12. Now coming to the case on hand with the background of the aforesaid judgments, it is clearly seen that the aforesaid judgments will have no bearing to the facts on hand. Admittedly, in this proceeding, the respondent has not demonstrated either before the learned Magistrate or before this Court that petitioners 1 to 10 have any enmity against respondent with which they have committed an act, which would defame him in the eye of public. It is further an admitted fact that petitioners 1 to 10 and respondent are all members of Bangalore Club. The material available on record would disclose that there was in fact an incident which had taken place on 2nd and 7th of October 2008, wherein the respondent, a member of the club while utilizing the facilities that were available to him in the precincts of the club, had gone to the extent of smoking in the Men's Bar, where any member of the club was specifically prevented from smoking. In addition to that, respondent also committed an act in throwing the lighted cigarette butt on the floor of Men's Bar, which was a wooden floor, which conduct of respondent would have caused damage to the floor of Men's Bar. However, knowing fully well it may cause such damage, he went on doing that act not only on 2nd but also on 7th of October 2008, which had given raise for issuing a show cause notice to him. However, knowing fully well it may cause such damage, he went on doing that act not only on 2nd but also on 7th of October 2008, which had given raise for issuing a show cause notice to him. Therefore, the club constituted a committee to go in to his conduct and if he is found to be guilty to subject him for punishment as provided under the bylaws of the club. 13. Incidentally, petitioners 1 to 10, in their capacity as members of the general committee, which was constituted by the club have conducted an enquiry on 23.10.2008. In the said committee, in an open discussion with respondent, petitioners 1 to 10 have posed pointed questions to him, which are accepted by the respondent. Indeed, there is an admission on his part in smoking in the Men's Bar on the alleged dates and also spilling cigarette butt on the floor, with a reason that, no ashtrays were made available in the said place, which also would fortify the fact that Men's Bar was out of the bound for cigarettes. When the act of respondent was found to be deliberate and against the Rules of the club, the general committee which was constituted, consisting of petitioners 1 to 10 proceeded to hold that respondent is guilty of a conduct, which would amount to depicting himself as not that of a member of the club. Hence, handed down punishment of suspension for a period of six months, i.e., his membership is suspended for a period of six months. As it is in practice of the club, said punishment handed down to respondent is published on the notice board of the club. It is not as if it is published in any place other than the notice board, for which it is meant and it is not as if there is an attempt by petitioners 1 to 10 to publish the same in such a place where other than the members of the club and other general public of the society would come to know about the conduct of respondent and with an intention to demean him in the eye of general public and also to defame him. When such conduct is not there, learned Magistrate ought to have taken that in the right perspective and should have considered whether all the ingredients that are required under Section 499 are available. When such conduct is not there, learned Magistrate ought to have taken that in the right perspective and should have considered whether all the ingredients that are required under Section 499 are available. Section 499 and the relevant 7th exception reads thus: 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 excepted, to defame that person. X x x x 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. X x x x x. The seventh exception would fall squarely on the allegation, which is made by respondent as against petitioners 1 to 10. The learned Magistrate has failed to look in to the relevant provision i.e. Section 499 along with the exceptions therein and to make out whether the respondent has made out a case which is punishable for an offence under Section 499, for which petitioners 1 to 10 are liable to be punished under Section 500 of IPC. In the absence of same, taking cognizance of offence is erroneous. 14. In the light of aforesaid discussion, this Court find that there is nothing on record which would indicate that there is deliberate attempt on the part of petitioners in trying to defame the respondent while notifying the order of suspension handed down to him and published on the notice board of the club. In that view of the matter, this Court find that the complaint which is registered in C.C. No. 69/2010 on the file of VIII ACMM, Bangalore, pursuant to the alleged cognizance taken by learned Magistrate in PCR. 10868/2009 cannot be sustained in the eye of law and the same is required to be quashed. Accordingly, this criminal petition which is filed by accused in C.C. No. 69/2010 is allowed and the proceeding in C.C. No. 69/2010 pending on the file of VIII ACMM, Bangalore, is quashed.