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2016 DIGILAW 142 (MAN)

Akoijam Joy Singh v. S. Sekharjit Singh

2016-08-17

R.R.PRASAD

body2016
JUDGMENT AND ORDER : 1. These two writ applications were heard together and are being disposed of by common order as the facts and circumstances and also the points involved in the cases are same though Cril.Petn. No.14 of 2015 is directed against the order dated 24.3.2015 and 14.5.2015 passed in Cril.(Complaint Case) No.44 of 2015 whereas Cril.Petn. No.15 of 2015 is also directed against the order dated 24.3.2015 and 14.5.2015 passed in Cril.(Complaint Case) No.45 of 2015 whereby and where under the learned Magistrate in both the cases having taken cognizance of the offence punishable under section 500 of the Indian Penal Code against the petitioner did explain the substance of accusation under order dated 14.5.2015 in both the cases. 2. Before adverting to the submissions advanced on behalf of the parties, the facts giving rise to these applications needs to be taken notice of. 2.1 Both the petitioners being President and Secretary of Teachers and Medical Officers’ Association (TAMOA), RIMS wrote a letter dated 23.7.2014 to the Deputy Secretary, Health (I/C of North Eastern Region), Ministry of Health and Family Welfare, Government of India making certain imputations against Dr. S. Sekharjit Singh, Director of RIMS (respondent in Cril.Petn.No.14 of 2015) and also against Dr. Ningthoujam Damayanti Devi (respondent in Cril.Petn. No.15 of 2015), the wife of Dr. S. Sekharjit Singh. The imputations made are hereunder: “1. Dr. Sekharjit, Director, RIMS engaged 66 volunteer nurses in the wake of nurses’ strike on 18th June 2014. Even when nurses’ strike ended on 19th June 2014, the period of engagement was continued for a month. Now, Director, RIMS is going ahead with extension of engagement of these 66 nurses for another 2 months against the objection by the Nursing Superintendent and Teachers’ and Medical Officers’ Association, RIMS. Dr. Damayanti, wife of Dr. Sekharjit is reportedly demanding Rs.10 lakhs each so that these voluntary nurses are appointed as nurses on contract basis. Director RIMS may be directed to discontinue engagement of voluntary nurses without further delay. 2. Ever since Dr. Sekharjit became Director RIMS on 14th September 2010, many corruption charges had been labeled against him relating to various appointments. He even has managed to appoint at least 32 family members including retired Government servants using his power and discretion. If the Ministry of Health and Family Welfare (MOHFW) is serious about rooting out corruption from RIMS, Dr. Sekharjit became Director RIMS on 14th September 2010, many corruption charges had been labeled against him relating to various appointments. He even has managed to appoint at least 32 family members including retired Government servants using his power and discretion. If the Ministry of Health and Family Welfare (MOHFW) is serious about rooting out corruption from RIMS, Dr. Sekharjit should not be allowed to continue chairing any interview board, instead the Ministry may depute someone to chair the board. 3. The Ministry of Health and Family Welfare had already given approval against Dr. Sekharjit so that investigating agencies like CBI may start the criminal proceedings against him. Dr. Sekharjit has been charge sheeted in at least 2 cases. By allowing him to continue holding the post of Director RIMS even when he is formally charge sheeted in criminal cases leaves a question mark on the sincerity of the Ministry of Health and Family Welfare to book corrupt officers to save an institution like RIMS.” 3. Therefore, the complainant, namely Dr. S.Sekharjit Singh, the Director of RIMS and also the other complainant, namely Dr. N.Damayanti Devi, the wife of Dr. S. Sekharjit Singh, lodged the case putting allegations that both the accused persons, the President and the Secretary, without having any resolution of the Association did submit complaint to the Ministry on their own making aforesaid allegations which are completely false and baseless and thereby the accused persons by putting imputations as stated above have caused irreparable harm to the reputation of both the complainants. Upon cognizance of the offence being taken in both the complaint cases when substance of accusation was explained as stated above those orders have been challenged to be bad in these two criminal petitions. 4. Mr. A. Bimol Singh, learned counsel appearing for the petitioners submitted that Dr. Sekharjit Singh, the then Director, RIMS and his wife, Dr. Upon cognizance of the offence being taken in both the complaint cases when substance of accusation was explained as stated above those orders have been challenged to be bad in these two criminal petitions. 4. Mr. A. Bimol Singh, learned counsel appearing for the petitioners submitted that Dr. Sekharjit Singh, the then Director, RIMS and his wife, Dr. N. Damayanti Devi, posted in RIMS when allegedly committed certain irregularities such as engaging nurses for some period though not required and then demanding money for appointing voluntary nurses on contract basis and indulging in corrupt practice by giving appointment to near and dear and that against them charge sheets have been submitted by the CBI in two cases, those imputations were highlighted in the daily newspaper published on 20th June 2014 and also on 18th July 2014 on the basis of the complaint made on behalf of the Democratic Students’ Alliance of Manipur (DESAM), copy of which had also been sent to the petitioners who at the relevant point of time were the President and the Secretary of Teachers’ and Medical Officers’ Association, RIMS. On getting information through the newspaper and also receiving letter from the Democratic Students’ Alliance of Manipur (DESAM) lending support to the rumour of respondents indulging in corrupt practice, wrote a letter on 23.7.2014 to the Deputy Secretary (Health i/c NE Region), Ministry of Health and Family Welfare, Govt. of India to bring it to the notice of the authorities so that necessary action be taken by him against the respondents and thereby when the petitioners in good faith has brought to the knowledge of the authority about the indulgence of the respondents in corrupt practices to take suitable action, the petitioners are immune from being prosecuted for the offence of defamation in view of Exception-8 of Section 499 of the Indian Penal Code. Still the Court has taken cognizance of the offence and has gone to explain the accusation which is quite illegal and as such both these orders are fit to be quashed. Still the Court has taken cognizance of the offence and has gone to explain the accusation which is quite illegal and as such both these orders are fit to be quashed. Learned counsel in this regard further submitted that the petitioners being the President and the Secretary of the Association were duty bound to bring to the notice of charges of corruption, highlighted by different sources, to the authorities so that action be taken and in fact action had also been taken against the petitioners whereby under the order of the lawful authority an enquiry committee was constituted and that allegation on being found prima facie true the Director (complainant) was relived from his duty and subsequently the Director was put under suspension and even cases have been filed by the CBI. All these facts get established from Annexures – A/8, A/9, A/12 & A/13 and under these circumstances it can easily be said that whatever imputations have been made against the respondents it had been made in good faith with an only view that action be taken by the authority against the Director to save the institution and in that event if the petitioners are allowed to face rigour of the trial it will be travesty of justice. Learned counsel in support of his case has referred to a decision renderred in a case of Rajendra Kumar Sitaram Pande & Ors –vs – Uttam and another reported in (1999) 3 SCC 134 . 4.1. As against this Mr. Amarjit Naorem, learned counsel appearing for the respondents submitted that whenever in a matter of prosecution for defamation one takes the plea of accusation being made in good faith, it becomes the matter of fact which needs to be established during trial and thereby the points raised regarding accusation being made in good faith cannot be subject matter of quashing of a criminal case. Further, it was submitted that if one takes a plea that imputation has been made on certain information as has been made out by the petitioners then before making accusation it ought to have been ascertained by the accused that source of information is authentic one. Further, it was submitted that if one takes a plea that imputation has been made on certain information as has been made out by the petitioners then before making accusation it ought to have been ascertained by the accused that source of information is authentic one. Newspaper reporting or any accusation being made by any association, like Democratic Students’ Alliance of Manipur (DESAM), not connected with the affairs of the administration of the Hospital, cannot be taken to be authentic source and thereby case of the petitioners cannot be accepted that imputation had been made in good faith and in that event the impugned orders never warrant to be quashed. Learned counsel in support of his submission has referred to a decision rendered in a case of Jeffrey J. Deirmieier & Ord. –vs- State of West Bengal & Anr.: 2010 (6) SCC 243 . 5. Having heard learned counsel appearing for the parties, it does appear that the plea which is being taken by the accused person is that whatever imputations have been leveled against the respondents it has been leveled in good faith for bringing the accusation in to the notice of the lawful authority for taking action whereas the stand which has been taken on behalf of the respondents is that in absence of it being proved that source of information was authentic one and further without it being verified any imputation on that basis being made cannot be said to have been made in good faith. Moreover, the plea of good faith becomes matter of fact which needs to be agitated before trial court. In context of such submissions, one needs to take notice of section 499 of the IPC dealing with the matter relating to defamation. The said provision reads as follows: “S.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.” 6. 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.” 6. From the perusal of the said provision, it does appear that in order to constitute an offence of defamation, the essential ingredients is that such imputation concerning any person is made with an intention to harm or with the knowledge or reason that such imputation will harm the reputation of such person. Any imputation without an intention to harm or without knowing or having reason to believe that it will harm the reputation of such person will not constitute an offence of defamation. The said provision of section 499 does have 10 exceptions stipulating therein about the immunity from prosecution of defamation in certain circumstances mentioned therein. 7. According to the petitioner, his case comes within the 8th exception as the petitioner in good faith did bring to the notice through a letter dated 23.7.2014 (the very letter/document is the subject matter of the prosecution) to the Deputy Secretary, a lawful authority to take action against the petitioner. Before going further with the matter, the provision as contained in 8th exception needs to be taken notice of which reads as follows: “Eighth Exception - 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.” Now the question does arise as to what the word ‘good faith’ denotes. One needs not to go far away to find out the true import of word ‘good faith’ as it has been defined in Section 52 of the Indian Penal Code which reads as follows: “S.52: Nothing is said to be done or believed in ‘good faith’ which is done or believed without due care and attention.” 8. On going through the said provision it does appear that an act is only done in good faith if it is done with care and attention. The phrase ‘due care and attention’ implies genuine effort to reach the truth and not the ready acceptance of ill-natured belief. On going through the said provision it does appear that an act is only done in good faith if it is done with care and attention. The phrase ‘due care and attention’ implies genuine effort to reach the truth and not the ready acceptance of ill-natured belief. When a question arises as to whether a person acted in good faith, then it devolves upon him to show not merely that he had a good intention but that he exercised such care and skill as the duty reasonably demanded for its due discharge. The question has to be considered on the facts and circumstances of each case having regard to the nature of imputation made; the circumstances on which it came to be made and the status of the person who makes the imputation as also the status of the person against whom the imputation is allegedly made. These and host of other considerations would be relevant and required to be considered for deciding the plea of good faith. In other words, in order to establish good faith and bona fide it has to be seen firstly the circumstances under which a letter was written or words were uttered; secondly whether there was any malice; thirdly whether the appellant had made any enquiry before he made the allegations; fourthly whether there are reasons to accept the version that he acted with care and caution and finally whether there is preponderance of probability that the appellant acted in good faith. The aforesaid circumstances of course need to be established during the course of trial by leading evidence but if the facts brought on record through the documents (Annexures-A/8,A/9,A/12 & A/13) which can be taken to be unimpeachable in character are not taken into account, there would be miscarriage of justice. It has been brought on record the order as contained in letter dated 25th August 2014 whereby the complainant, Dr. S. Sekharjit Singh, the then Director of RIMS was relieved of his duties and also another document (Annexure-A/9), an office memorandum issued by Deputy Secretary(Health), Ministry of Health, Govt. of India containing minutes of enquiry committee constituted for the purpose of holding enquiry on the charges including the charges which was complained of by the petitioners. Subsequently Under Secretary to the Govt. of India containing minutes of enquiry committee constituted for the purpose of holding enquiry on the charges including the charges which was complained of by the petitioners. Subsequently Under Secretary to the Govt. of India issued another memorandum dated July 2015 (Annexure-A/12) stating therein that Special Committee upon holding enquiry over the complaint made against the complainant Dr. S. Sekharjit Singh relating to various irregularities committed by him found the allegation prima facie true and thereby the complaint was called upon to submit his explanation. Further it has been brought on record that said complainant, Dr. S. Sekharjit Singh, was put under suspension vide order dated 28th August 2015 (Annexure-A/13) 9. Thus, these facts speak about the preponderance of probability that the petitioners being President and Secretary of Association acted in good faith by making accusation to the authority who does have control over the complaint with a view to take action against the complainant allegedly indulging himself in corrupt practices and thereby it was not actuated with malice. 10. Here, it would be pertinent to refer a decision rendered in a case of Rajendra Kumar Sitaram Pande & Ors –vs – Uttam and another reported in (1999) 3 SCC 134 . The gravamen of the allegation in the complaint petition was that the accused person made a complaint to the Treasury Officer, Amravati, containing false imputations to the effect that the complainant had come to the office in a drunken state and abused the Treasury Officer, Additional Treasury Officer and Collector. Such imputations had been made with the intention to cause damage to the reputation of the complainant. In order to decide the correctness of all those averments the Magistrate instead of issuing process had called upon the Treasury Officer to hold an enquiry and submit report and the said Treasury Officer did submit report to the Magistrate. In such a situation, the question for consideration was whether the allegation in the complaint read with report to the Magistrate make out the offence under section 500 or not? 11. Their Lordships was pleased to observe that section 499 of IPC defines the offence of defamation and section 500 provides the punishment for such offence. In such a situation, the question for consideration was whether the allegation in the complaint read with report to the Magistrate make out the offence under section 500 or not? 11. Their Lordships was pleased to observe that section 499 of IPC defines the offence of defamation and section 500 provides the punishment for such offence. Exception 8th to section 499 clearly indicates that it is not a defamation to prefer any good faith on accusation against any person to any of those who have lawful authority over that person with regard to the subject matter of accusation. The report of the Treasury Officer clearly indicates that pursuant to the report made by the accused person against the complainant a departmental enquiry had been initiated and the complainant was found to be guilty. In such event, it was held that under such circumstances, the fact that the accused persons had made a report to the superior Officer of the complainant alleging that he had abused the Treasury Officer in drunken state which is gravamen of the present complaint and nothing more, would be covered by Exception 8th of Section 499 of the I.P.C. 12. Coming to the case in hand the facts of which though are somewhat different but sufficiently indicate about the probability of petitioners making imputation to the authority who did have control over the complainant in good faith and thereby in order to do real and substantial justice, the impugned orders dated 24.3.2015 and 14.5.2015 passed in Cril.(Complaint Case) No.44 and 45 of 2015 in exercise of powers conferred under section 482 of Cr.PC are hereby quashed 13. In the result, both criminal applications stand allowed.