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2014 DIGILAW 641 (BOM)

Viraf N. Chiniwala v. Amy N. Irani

2014-03-10

SADHANA S.JADHAV

body2014
JUDGMENT 1. Heard. Rule. Rule returnable forthwith with the consent of the parties. Heard forthwith. 2. Such of the facts necessary for the decision of this Writ Petition, are as follows:- (a) The complainant in Criminal Case No.674/SS/2009 filed a complaint before the Addl. Chief Metropolitan Magistrate, 4th Court at Girgaum, Mumbai on 31.8.2007 alleging therein that the present petitioner was indulging into character assassination and defamation of the complainant. The complainant has alleged that she is the resident of Flat No.9/2, Cassinath Building. The petitioner also resides in the same building. Flat No.12A belongs to the father-in-law of the present petitioner and it is situated just above the complainant's flat. The present petitioner had undertaken the work of carrying out repairs in the aforesaid flat i.e. flat No.12A. The complainant had filed a complaint to the Tardeo Police Station alleging therein that the accused is indulging into illegal activities which creates nuisance. On 2.9.2004, the complainant was called by the police for enquiry. The petitioner went to the police station and in the presence of the police personnel, had told the police “Constable tum us-se baat mat karo, yeh tau pagal aurat hai”. According to the complainant, she felt defamed due to the derogatory remark made by the accused. (b) She has further alleged in the complaint that on 26.10.2005, the Public Relations Officer, Tulsiwadi Post Office, Tardeo, Mumbai had visited the premises of the said building for holding a personal enquiry regarding the complaint made by the complainant about the mailing address of the trust. According to the complainant, Navghare had visited the said building and made enquiries. He had been to the address of the complainant and had recorded the details. The accused i.e. the present petitioner met Navghare on the ground floor and had told Mr. Navghare “Yeh aurat tau aadhi pagal hai”. The complainant felt defamed again. 3. Proceedings were pending before the Deputy Charity Commissioner. The present petitioner was respondent in the said matter. She has not mentioned the nature of the proceedings before the Deputy Charity Commissioner. According to her, the present petitioner had filed an affidavit-in-reply on 7.9.2005. Navghare “Yeh aurat tau aadhi pagal hai”. The complainant felt defamed again. 3. Proceedings were pending before the Deputy Charity Commissioner. The present petitioner was respondent in the said matter. She has not mentioned the nature of the proceedings before the Deputy Charity Commissioner. According to her, the present petitioner had filed an affidavit-in-reply on 7.9.2005. In the said affidavit in reply, the present petitioner has stated as follows:- “The records will show that the Applicant is a person with a grievance complex and a chronic complainant who has been picking up quarrels and shooting off letters without just case to the various authorities including the Police Authorities and Municipal Authorities, seeking to ventilate imaginary grievances and trying to make them appear real.” According to the complainant, she felt humiliated because of the contents of the said affidavit. 4. The complainant has alleged that by a letter dated 4.4.2006, issued through her Advocate, she had called upon the accused to withdraw the defamatory allegations and tender an unconditional apology within 30 days from the date of receipt of the said letter. The accused had not complied with it. He replied the said notice by a letter dated 21.4.2006, thereby denying the contentions raised by the complainant. On 25.4.2006, in the office of Joint Charity Commissioner, the petitioner has abused the complainant by making a remark that her son was deported and had gone abroad on false and forged passport. According to the complainant, the said remark was made by the accused in the presence of Joint Charity Commissioner Mr. Nanderkar and his staff who are witnesses to the said incident. 5. The verification of the complainant was recorded on 10.7.2008. it is pertinent to note that in the verification statement, the complainant has not deposed about the particular incidents or that the petitioner had made derogatory remarks against her. It is stated in para 2 of the verification statement that “I have set out in my above complaint specific details as to how the Accused has personally and in his Affidavit has indulged in my character assassination. I reiterate and verify all the statements made by me in my complaint as true and correct.” It is a matter of record that the particular incidents or the names of the witnesses have not been mentioned. I reiterate and verify all the statements made by me in my complaint as true and correct.” It is a matter of record that the particular incidents or the names of the witnesses have not been mentioned. There was no reply to the specific remarks made by the petitioner against her which could be termed as “character assassination”. The learned Addl. Chief Metropolitan Magistrate by his order dated 6.10.2009 was pleased to issue process against the accused for the offence punishable under Sections 500, 504 and 506 of Indian Penal Code. 6. Being aggrieved by the said issuance of process, the petitioner had filed Criminal Revision Application No.1514 of 2009 before the Sessions Court. The Revisional Court by an order dated 5.5.2011, has partly allowed the Revision. The order of issuance of process against the applicant for the offence punishable under Sections 500 and 504 was maintained. The order in respect of issuance of process of the charge under Section 506 of IPC was set aside. The petitioner questions the correctness and validity of the orders passed by that Court while issuing process against the present petitioner. 7. The learned Counsel for the petitioner, at the outset, submits that in the complaint, the complainant has given three instances pertaining to the years 2004, 2005 and 2006. The complaint was filed on 21.8.2007. The learned Counsel for the petitioner rightly submits that the allegations in respect of the offence alleged of the year 2004 is beyond the period of limitation. 8. Section 468 of the Criminal Procedure Code, 1973 contemplates: “468. Bar to taking cognizance after lapse of the period of limitation: (1) .... (2) The period of limitation shall be - (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.” Therefore, the learned Magistrate could not have taken cognizance of the offence which is alleged to have taken place in the year 2004. 9. It is pertinent to note that in the verification statement, the specific incidents have not been mentioned and, therefore, the Magistrate ought not to have taken cognizances on the basis of the verification statement which appear to be vague. 10. Section 200 of the Cr.P.C. contemplates: “200. 9. It is pertinent to note that in the verification statement, the specific incidents have not been mentioned and, therefore, the Magistrate ought not to have taken cognizances on the basis of the verification statement which appear to be vague. 10. Section 200 of the Cr.P.C. contemplates: “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:” 11. Section 199 sub-clause (3) of the Cr.P.C. contemplates as follows:- “199. Prosecution for defamation - (3) Every complaint referred to in sub-section(2) shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him.” The plain reading of Section 199 sub-clause (3) along with Section 200 would indicate that it would not be sufficient only to give details in the complaint as contemplated under Section 199(3) of Cr.P.C. but the same particulars have to be given under Section 200 of Cr.P.C. also. 12. The learned Counsel for the petitioner has placed reliance upon the judgment of this Court in the case of Arun Tikekar vs. Sanatan Sanstha ALL MR (Cri) 2009 – 0 – 2545 “In absence of even a reference to the role of applicants in verification statement, Magistrate could not have issued process against the accused/applicants and hence impugned order as against the applicants is illegal.” 13. This Court has placed reliance upon the Judgment of the Apex Court in the case of Sabitha Ramamurthy and Anr. Vs. R.B.S. Channabasavaradhya (2006) 10 SCC 581 . It was held as under:- “....In terms of section 200 of the Code of Criminal Procedure, the complainant is bound to make statements on oath as to how the offence has been committed and how the accused persons are responsible therefor. In the event, ultimately, the prosecution is found to be frivolous or otherwise mala fide, the court may direct registration of case against the complainant for mala fide prosecution of the accused. The accused would also be entitled to file a suit for damages. In the event, ultimately, the prosecution is found to be frivolous or otherwise mala fide, the court may direct registration of case against the complainant for mala fide prosecution of the accused. The accused would also be entitled to file a suit for damages. The relevant provisions of the Code of Criminal Procedure are required to be construed from the aforementioned point of view.” This Court has also placed reliance on the Judgment of this Court in the case of Amarnath2009 ALL MR (Cri) 184. It was observed in para 22 thereof as follows:- “22. On plain reading of section 200 of the said Code it appears that it is the obligation of the Magistrate to examine the complainant which means that the learned magistrate is obliged to put questions to the complainant for eliciting the truth from him. The said provision enjoins a judicial duty to be performed by the Judicial magistrate which requires an application of judicial mind. The said work of recording the statement cannot be done mechanically by simply filling cash details such as the date of cheque, name of the bank, date of intimation of dishonour of the cheque etc; in a format which is already kept ready. Generally, the complaints are drafted by the lawyers as per the instructions of the complainants. Thus, a complaint is the translated version or a formulated version made by the advocate on the instructions received from the complainant. Therefore, the examination of the complainant under section 200 by the learned Magistrate is very important. During the course of such examination the complaint tells the truth. In fact, the object of the learned Magistrate recording such statement is of eliciting the truth from the complainant ….” It is rightly observed that the Code of Criminal Procedure contemplates verification of the complaint by the complainant to ascertain, determine and get assured that the particulars mentioned in the complaint have been substantiated, in the absence of which the Magistrate ought not to have issued the process. The subjective satisfaction of the Magistrate on the basis of examination on oath must be reflected in the order of issuance of process. The genuineness and truthfulness of the contents of the complaint have to be substantiated in the Examination on oath. 14. The subjective satisfaction of the Magistrate on the basis of examination on oath must be reflected in the order of issuance of process. The genuineness and truthfulness of the contents of the complaint have to be substantiated in the Examination on oath. 14. The learned Counsel appearing for the original complainant/respondent submits that the provisions of the Cr.P.C. are procedural aspects which need to be construed in a liberal manner and that they shall not hammer the course of justice. According to the learned Counsel for the respondent, the word `shall' stated in Section 200 of Cr.P.C. should be read as “may be” in the interest of the complainant. 15. In fact, the complaint is a comprehensive statement setting out the facts pertaining to three stray incidents ranging from 2004 to 2006. Upon perusal of the contents of the complaint, it is seen that the words used by the petitioner are (i) Pagal, (ii) Aadhi Pagal and (iii) her son is deported as he has travelled on a false and forged passport. There is no justification to the said remarks made by the petitioner. The question is whether they can be said to be defamatory statements has to be read in consonance with the other facts of the case. It is a matter of record that there are civil cases pending between the parties. The complainant had filed a complaint against the present petitioner for defamation. The process was issued against the present petitioner. Being aggrieved by the said order, the petitioner had filed Criminal Application No.49 of 2011 in Case No.650/2010, this Hon'ble Court by a judgment dated 8.3.2013, has quashed the order of issuance of process by holding that the process issued upon the verification statement does not comply with the legal requirements itself. 16. The complainant had also filed criminal proceedings against the petitioner under Section 31 of the Rent Act. The petitioner challenged the said order by filing Writ Petition and this Court vide order dated 19.6.2009, has confirmed the interim relief granted in favour of the accused petitioner while issuing rule on 21.4.2009. 17. The learned Counsel for the petitioner submits that the complainant has filed several proceedings against the other persons besides the present petitioner and therefore the remark 'chronic complainant' appears in the affidavit filed before the Charity Commissioner. 18. 17. The learned Counsel for the petitioner submits that the complainant has filed several proceedings against the other persons besides the present petitioner and therefore the remark 'chronic complainant' appears in the affidavit filed before the Charity Commissioner. 18. It is pertinent to note that in para 5 of the complaint, the complainant has stated that the petitioner had filed affidavit in reply before the Charity Commissioner. In the complaint she has neither stated the number of the complaint nor the nature of proceedings which were initiated. The learned Counsel appearing for the complainant submits that in fact the said particulars set out by the complainant that the said proceedings were pending before the Joint Charity Commissioner under Section 47 of the Bombay Public Trusts Act (Maharashtra Rent Control Act, 1956). In any case, the particulars are not mentioned. 19. In respect of 3rd allegation pertaining to 25th April, 2006, it is stated in the complaint that the said incident has taken place in the office of the Joint Charity Commissioner. The Joint Charity Commissioner has not been stated as a witness in the list of witnesses. In the course of inquiry under Section 202 of Cr.P.C., the police officer had recorded the statement of the Post Master, Tulsiwadi Post Office who has been referred to as Public Relations Officer by the complainant. The Post Master has referred the petitioner as President of the Society. He has specifically disclosed to the police that the present petitioner had informed him that the said lady is constantly filing complaints against one person or the other”. There is no reference of referring the complainant as an insane person or a partly insane person. The verification statement is devoid of particulars stated in the complaint and on this ground the Petition would succeed. 20. Hence, the proceedings initiated against the present petitioner for the offence punishable under Sections 500 and 504 of IPC in case No.674 of 2009 pending before the Metropolitan Magistrate, 4th Court, Girgaum, Mumbai, are hereby quashed and set aside. Rule is made absolute in the above terms. Writ Petition is disposed of.