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2015 DIGILAW 207 (CAL)

Anirban Dutta v. State of West Bengal

2015-03-04

SHIB SADHAN SADHU

body2015
Judgment :- Shib Sadhan Sadhu, J. 1. This is an application under Section 401 read with Section 397 of the Code of Criminal Procedure, 1973 seeking to set aside the impugned order dated 14.11.2014 passed by the Learned Judicial Magistrate, 10th Court, Alipore in complaint Case No.AC-2711 of 2014 whereby he dismissed the complaint filed by the present petitioner under Section 203 of the Cr.P.C. 2. Mr.Devajyoti Barman, Learned Advocate, appearing for the petitioner submitted that the petitioner is a Software Engineer and he is now employed at Bengaluru and he has been implicated in a case under Section 498A/406 IPC by his wife Smt Malancha Mukherjee being Shyampukur P.S. Case No.161 of 2013. On the very date of lodging of the complaint, the O.P. No.2, 3 and 4 have aired a news item in their Television Channel namely ABP Ananda on 01.08.2013 and again on 02.08.2013 spreading false propaganda about the petitioner in relation to his marital discord with his wife. Such news item is false, frivolous and vexus and with a view to causing damage by way of defamation to the image and reputation of the petitioner. Being aggrieved by the conduct of the O.P. No.2, 3 and 4 the petitioner filed a complaint case in the court of Learned Magistrate, 10th Court, Alipore, who after recording the SA of the complainant was pleased to dismiss the complaint under Section 203 of the Cr.P.C. and hence the present Revision. 3. Mr. Barman, further submitted that the Learned Magistrate was wrong in holding that no further witness was examined although the list of witnesses was mentioned in the very petition of complaint but he did not give any opportunity to adduce those witnesses. He also did not consider that the said O.P.S. went beyond the contents of the FIR and falsely represented that the petitioner was absconding. 4. Mr. Barman, further submitted that although freedom of speech and expression is one of the fundamental rights of a citizen but nobody can defame any citizen taking advantage of such freedom. He further contended that the Learned Magistrate wrongly refused to consider that the O.P. No.2, 3 and 4 acted with malicious intention in utter contravention of media norms which falls very well within the ambit of Section 500 IPC. He further contended that the Learned Magistrate wrongly refused to consider that the O.P. No.2, 3 and 4 acted with malicious intention in utter contravention of media norms which falls very well within the ambit of Section 500 IPC. He criticized the impugned order to be bereft of merit and non-application of judicial mind and thus such order is bad in law and it is liable to be set aside. He submitted a note of argument and unreported judgment of the Hon’ble Supreme Court of India passed on January 28, 2010 in Criminal Appeal No.203 of 2010 in the case of Poonam Chand Jain & Anr. V. Fazru in support of his submission. 5. On hearing the Learned Advocate and on perusal of the entire materials available on record I find that the Learned Magistrate has passed an elaborate and speaking order. He has assigned reasons as to why he did not find any sufficient ground for proceeding in that case. The Learned Magistrate observed that the witness who deposed is the mother of the original complainant Anirban Dutta and she stated nothing about any reputation of the said complainant. Also no independent witness was examined to show that the alleged imputation directly or indirectly in the estimation of others either lowered moral or intellectual character or credit of the complainant Anirban Dutta and made him disgraceful. I find nothing to disagree with the findings of the Learned Magistrate. Mere listing of witness is not enough. It is the duty of the complainant to produce and tender witness before the Court and if he failed to produce then it is his duty to seek for adjournment to produce his witnesses. Further on perusal of the copy of the F.I.R. I find that there is specific allegation that the accused persons demanded an amount of Rs.30,00,000/- and to fulfil such demand they inflicted cruelty upon her and she was blackmailed by her husband. Not only that the allegation stooped to the extent that the victim housewife was subjected to sexual torture in various unique ways for satisfying his abnormal behaviour. Therefore, the grievance floated by the petitioner that the opposite parties traversed beyond the contents of the FIR has no ring of truth. 6. Not only that the allegation stooped to the extent that the victim housewife was subjected to sexual torture in various unique ways for satisfying his abnormal behaviour. Therefore, the grievance floated by the petitioner that the opposite parties traversed beyond the contents of the FIR has no ring of truth. 6. Be that as it may what I find to be more interesting is that the complaint was filed not by the complainant Anirban Dutta himself but by his constituted attorney Smt Jaya Dutta who is his mother. Not only that it is not the complainant Anirban Dutta but his power of attorney holder who is his mother deposed before the Court. In this context I think it appropriate to quote the observation made by the Hon’ble Supreme Court in the case of Janki Vashdeo Bhojwani & Anr. V. Indusind Bank Ltd & Ors. Reported in (2005) 2 Supreme Court Cases 217:- “Order 3 Rules 1 & 2 CPC empower the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order 3 Rules 1 and 2 CPC confines only to in respect of “acts” done by the power-of-attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some “acts” in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. In the case of Shambhu Dutt Shastri V. State of Rajasthan (1986) 2 WLN 713 (Raj) it was held that a general power-of-attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power-of-attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff. The aforesaid judgment was quoted with approval in the case of Ram Prasad V. Hari Narain AIR 1998 Raj 185 : (1998) 3 Cur CC 183 it was held that the word “acts” used in Rule 2 of Order 3 CPC does not include the act of power-of-attorney holder to appear as a witness on behalf of a party. Power-of-attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of CPC 7. It is, therefore, apparent that Smt. Jaya Dutta who deposed as a witness before the Learned Magistrate was a power-of-attorney holder of her son Anirban Dutta who is the original complainant. In view of the settled position of law as highlighted above she being a general power-of-attorney holder cannot appear as a witness on behalf of the complainant in the capacity of the complainant. Therefore, the complaint filed by the complainant Anirban Dutta is liable to be dismissed on that count too. 8. For the aforesaid reasons I do not find any merit in the instant Revisional Application and the same is accordingly dismissed.