Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 157 (CAL)

Sikha Das v. Nitai Chandra Ghosh

2016-02-10

R.K.BAG

body2016
JUDGMENT : R.K. Bag, J. The petitioners have preferred this revision under section 401 read with section 482 of Code of Criminal Procedure praying for quashing the proceeding of Case No. C 165 of 2013 pending before the Court of learned Metropolitan Magistrate 20th Court, Calcutta. 2. The backdrop of the present revisional case is as follows: On June 6, 2011 the petitioner no. 1 filed a written complaint before the officer-in-charge of the Shyampukur Police Station on the basis of which Shyampukur police station case no. 170 dated June 7, 2011 under Section 143/147/148/149/354/324/326 of the Indian Penal Code came into existence. The contents of the written complaint treated as FIR disclose that on June 6, 2011 the opposite party no. 1, and his associates physically assaulted the petitioner no.1 kicked on her abdomen and thereby she started bleeding in the advanced stage of pregnancy. It is alleged that the relatives of the petitioner no.1 were also physically assaulted by the opposite party No. 1 and his associates. The police took up the investigation of the said criminal case, but submitted final report on the ground that the dispute was settled amicably between the parties by intervention of common friends and the dispute was also found to be civil in nature. Subsequently, the petitioner no.1, being the defacto-complainant of the criminal case filed an application before the Court of learned Magistrate praying for rejection of final report and direction for further investigation under section 173(8) of the Code of Criminal Procedure. I am informed that the said application filed by the petitioner no. 1 was rejected by the learned Magistrate and the order of rejection passed by learned Magistrate was not challenged before the higher forum. 3. On February 21, 2013, the opposite party no. 1 filed a petition of complaint against the petitioners and one Anil Kumar Das since deceased before the Court of learned Additional Chief Metropolitan Magistrate, Calcutta, on the allegation of committing offence under section 500/120B of the Indian Penal Code. The contents of the said petition of complaint disclose that the petitioner no. 2, and 3 persuaded the petitioner no.1 to make false, frivolous and concocted allegation against the opposite party no. 1 by filing the criminal case. It is stated in the said petition of complaint that the opposite party no. The contents of the said petition of complaint disclose that the petitioner no. 2, and 3 persuaded the petitioner no.1 to make false, frivolous and concocted allegation against the opposite party no. 1 by filing the criminal case. It is stated in the said petition of complaint that the opposite party no. 1 has purchased ¼th share of the premises in which the petitioners have been residing as co-sharers of the joint property. It is further stated in the said petition of complaint that the Civil Court has passed an interim order restraining the petitioners from interfering with the ingress and egress of the opposite party no.1 in the said premises where the opposite party no. 1 is running his sweet meat shop. The interim order passed by the Civil Court is not produced before this Court at the time of hearing of the revision. The opposite party no. 1, has given a different version of the incident which took place in the said premises on June 6, 2011. The contents of the petition of complaint further disclose that the allegation made by the petitioner no. 1 to the effect that she was physically assaulted by the opposite party no. 1 and his associates is absolutely false, reckless and defamatory. It is alleged in the petition of complaint that on June 7, 2011 the petitioner No. 2, being the husband of the petitioner no. 1 filed an affidavit before the Court of learned Magistrate to the effect that the dispute is settled by way of compromise. It is also alleged that on June 8, 2011, the petitioner no.1 gave one statement before the police to the effect that the dispute is settled between the parties and that the petitioner no. 1 has no grievance against the opposite party No.1 and she gave birth to a baby in R.G. Kar Medical College and Hospital. The contents of petition of complaint also disclose that on June 11, 2011, the opposite party no. 1 was released on interim bail and on July 20, 2011 the said interim bail was confirmed by the Court of learned Magistrate. According to the opposite party no. The contents of petition of complaint also disclose that on June 11, 2011, the opposite party no. 1 was released on interim bail and on July 20, 2011 the said interim bail was confirmed by the Court of learned Magistrate. According to the opposite party no. 1, the allegations made by the petitioner no.1 with regard to the incident on June 6, 2011 are false, frivolous and baseless and the subsequent action taken at the instance of the petitioners has lowered down the reputation of the opposite party no. 1 in the eye of public. Accordingly, opposite party no. 1 has prayed for issuance process against the petitioners for the offence under sections 500/120B of the Indian Penal Code. 4. The learned Magistrate examined the opposite party no.1 and his witnesses and issued process against the petitioners for the offence under sections 500/120B of the Indian Penal Code. The petitioners appeared before the Court of learned Magistrate on March 25, 2014. The plea of the petitioners was recorded by learned Magistrate. It appears from record that the evidence in chief of the opposite party no. 1 has not been completed, but several documents have been admitted into evidence and marked exhibits by the trial court. 5. With the above factual matrix Mr. Joy Sengupta, learned counsel for the petitioners contends that the petitioner no.1 initiated the criminal proceeding against the opposite party no.1 for the incident which took place on June 6, 2011. By referring to the statement of the investigating officer appearing on the final report, Mr. Sengupta, submits that the petitioner no. 1 was not willing to proceed with the hearing of the criminal case as the dispute between the parties was settled amicably by intervention of common friends. He argues that there is nothing on record to indicate that the allegation made by the petitioner no. 1 in the written complaint treated as FIR is false, frivolous and baseless. By referring to Eighth Exception to section 499 of the Indian Penal Code, Mr. Sengupta emphatically submits that the accusation made by the petitioner no.1 before the officer-in-charge of Shyampukur Police station in good faith in respect of an incident which took place in the premises of the petitioner no. 1 on June 6, 2011 cannot amount to defamation punishable under Section 500 of the Indian Penal Code. According to Mr. Sengupta emphatically submits that the accusation made by the petitioner no.1 before the officer-in-charge of Shyampukur Police station in good faith in respect of an incident which took place in the premises of the petitioner no. 1 on June 6, 2011 cannot amount to defamation punishable under Section 500 of the Indian Penal Code. According to Mr. Sengupta, initiation of the criminal proceeding which ended in final report due to amicable settlement of the dispute between the parties will be covered under Eighth Exception of Section 499 of the Indian Penal Code and as such the same cannot amount to defamation punishable under Section 500 of the Indian Penal Code. So, the petitioners are not liable to be prosecuted for the offence under section 500/120B of the Indian Penal Code. Mr. Sengupta has relied on the decision of the Supreme Court in “Rajendra Kumar Sitaram Pande v. Uttam” reported in 1999 SCC (Cri) 393 in support of his above contention. 6. Mr. Tirthankar Ghose, learned counsel for the opposite party no. 1, submits that the petitioner no. 1 herself has stated in her statement before the police in presence of the doctor in the hospital that she was not physically assaulted by the opposite party no. 1. He further submits that the petitioner no. 2, being the husband of the petitioner no.1, was compelled to file affidavit before the Court of learned Magistrate disclosing the fact of amicable settlement between the parties due to societal pressure in the locality immediately after the incident. Mr. Ghose argues that the investigating officer submitted final report not only on the basis of alleged amicable settlement of dispute between the parties, but also by formation of opinion that the dispute is civil in nature. According to Mr. Ghose, initiation of criminal case against the opposite party no.1, on the basis of false, frivolous and baseless allegation has, no doubt, lowered down the reputation of the opposite party no. 1 in the eye of public. 7. Mr. Ghose argues that the issue whether the petitioner no.1 initiated the criminal proceeding against the opposite party no. 1 in good faith can be decided in the domain of facts after recording of evidence during trial of the case. 1 in the eye of public. 7. Mr. Ghose argues that the issue whether the petitioner no.1 initiated the criminal proceeding against the opposite party no. 1 in good faith can be decided in the domain of facts after recording of evidence during trial of the case. He has pointed out from the orders passed by learned Magistrate of the trial court that the plea of the petitioners was recorded on March 25, 2014 and the case was posted for recording of evidence on July 3, 2014 and the petitioners moved this Court by preferring the revision on January 5, 2015 which is almost after one year of appearance of the petitioners before the trial court. Mr. Ghose has urged this Court not to intervene in the trial pending before the learned Magistrate when the petitioners are not diligent to move the revisional application at least after recording of plea of the petitioners before the Court of learned Magistrate. He has relied on three decisions of the Supreme Court in “Basir-ul-Huq v. State of West Bengal” reported in AIR 1953 SC 293 ; “M.A. Rumugam v. Kittu” reported in (2009) 1 SCC 101 and “P.S. Meherhomji v. K.T. Vijay Kumar” reported in (2015) 3 C Cr. L.R. (SC) 254 in support of his contention that the contents of the petition of complaint disclose offence under sections 500/120B of the Indian Penal Code against the petitioners and as such this Court cannot intervene to quash the proceeding by invoking inherent jurisdiction under section 482 of the Code of Criminal Procedure. 8. The question which calls for determination of this Court is whether the contents of the petition of complaint filed by the opposite party no.1 disclose offence punishable under section 500 read with section 120 B of the Indian Penal Code. The contents of the petition of complaint by the opposite party no.1 disclose that the petitioner no. 1 initiated criminal proceeding against the opposite party no.1 by making false, frivolous and baseless allegation against the opposite party no.1 in connection with an incident which took place on June 6, 2011 inside the premises of the petitioner no.1. It appears from the said petition of complaint that the opposite party no. 1 initiated criminal proceeding against the opposite party no.1 by making false, frivolous and baseless allegation against the opposite party no.1 in connection with an incident which took place on June 6, 2011 inside the premises of the petitioner no.1. It appears from the said petition of complaint that the opposite party no. 1 has become a co-sharer of the said premises by purchase of ¼th share from other co-sharers and a civil suit between the parties is pending before the City Civil Court at Calcutta. No order passed by the Civil Court is forthcoming in connection with this revision. Admittedly, the opposite party no.1 has not been acquitted of the charge after full trial by the competent court of law. Nor is there any observation of any competent court of law that the allegations made by the petitioner No.1 against the opposite party No.1 and his associates are false, frivolous and baseless. The investigating officer submitted the final report by making observation that the petitioner no.1 being the defacto-complainant of the criminal case is not willing to proceed further on the ground that the dispute is settled amicably between the parties by intervention of common friends. It also appears from the final report submitted by the investigating officer that the case is closed by declaring the same as a dispute which is civil in nature. On June 7, 2011 i.e. on the very next date of the initiation of the criminal proceeding by registration of FIR, the petitioner no.2 being the husband of the petitioner no.1 filed an affidavit indicating the fact that the dispute between the parties is settled amicably by intervention of the common friends for which the petitioner no.1 is not willing to proceed further in connection with the said criminal case. On the same date i.e. on June 7, 2011 one Sub-Inspector of Police Shyampukur police station recorded the statement of the petitioner no.1 in presence of the doctor while the petitioner no.1 was admitted in R.G. Kar Medical College and Hospital for giving birth to a baby. It appears from the said statement given by the petitioner no.1 before the Sub-Inspector of police that the petitioner no.1 has no complaint against any person including the opposite party no.1 and that she was not assaulted by the opposite party no. 1 and others during the incident in question. It appears from the said statement given by the petitioner no.1 before the Sub-Inspector of police that the petitioner no.1 has no complaint against any person including the opposite party no.1 and that she was not assaulted by the opposite party no. 1 and others during the incident in question. The veracity of the said statement recorded by the Investigating Officer could have been tested during the trial of the criminal case, which ended in final report. In view of the above statement of the petitioner no.1 and the affidavits submitted by the husband of the petitioner no.1, the investigating officer ultimately submitted final report even though the petitioner no.1 suffered bleeding in the advanced stage of pregnancy on the date of the incident, was shifted to R.G. Kar Medical and Hospital and gave birth to a baby. The investigating officer has clearly pointed out in the final report that the scuffling took place between the parties on the date of the incident. Accordingly, it is not substantiated from the materials on record that the allegation made by the petitioner no.1 against the opposite party no. 1 is totally false, frivolous and baseless as contended on behalf of the opposite party No.1. 9. Now I would like to deal with the authorities cited by learned counsel representing the respective parties. In “Rajendra Kumar Sitaram Pande v. Uttam.” reported in 1999 SCC (Cri) 393, cited on behalf of the petitioners, the Supreme Court quashed the criminal proceeding under section 500 of the Indian Penal Code when the accusation against the complainant was made to the lawful authority in good faith. In this report learned Magistrate considered the report of the Treasury Officer along with the petition of complaint and issued the process against the accused person for the offence under Section 500 of the Indian Penal Code. The gravamen of the allegation of the complaint was that the accused persons made a complaint to the Treasury officer contending false imputation to the effect that the complainant had come to the office in drunken state and abused the Treasury Officer by using filthy language with the intention to cause harm to the reputation of the complainant. The gravamen of the allegation of the complaint was that the accused persons made a complaint to the Treasury officer contending false imputation to the effect that the complainant had come to the office in drunken state and abused the Treasury Officer by using filthy language with the intention to cause harm to the reputation of the complainant. The report of the Treasury Officer submitted under Section 202 of the Code of Criminal Procedure indicates that the departmental enquiry was initiated and the complainant was found to be guilty in the said departmental enquiry and as such the proceeding for defamation at the instance of the complainant was quashed by the Supreme Court. The facts of the reported case are distinguishable from the facts of the present case where final report is submitted by the investigating officer on the basis of amicable settlement of the dispute between the parties by intervention of common friends and as such the ratio of the said report cannot be made applicable in the facts of the present case. 10. In “Basir-ul-Huq v. State of West Bengal” reported in AIR 1953 SC 293 , cited on behalf of the opposite party No.1, it is alleged that the information given to the police was false and the imputations were made in a malafide way due to enmity between the parties with intention to cause harm to the reputation of the complainant and to hurt the religious feelings of the complainant. In this report the appellants were found to be guilty of the charge under section 297/500 of the Indian Penal Code after recording of evidence adduced by the parties during trial and the Supreme Court held that the prosecution evidence is sufficient to hold the offence proved against all the appellants. Since this report relates to a case where the accused persons were found to be guilty after recording of evidence, I am of the view that the facts of the reported case are distinguishable from the facts of the present case where the final report was submitted by the police on the basis of amicable settlement between the parties by intervention of common friends and the case initiated by the petitioner No.1 against the opposite party No.1 was closed. So, this report has no relevance in the facts of the present case. 11. So, this report has no relevance in the facts of the present case. 11. In “M.A. Rumugam v. Kittu” reported in (2009) 1 SCC 101 , cited on behalf of the opposite party No.1, the appellant was prosecuted for causing damage to the coconut trees by pouring acid mixing with kerosene on the basis of mere suspicion. The investigation of the said criminal case was stopped by learned Magistrate and the police report in final form was not submitted. The initiation of the criminal proceeding for defamation was not quashed by the Supreme Court on the ground that the imputation on the character of the complainant made in good faith can be established at the stage of final hearing after recording of the evidence during trial of the case. In this report, the criminal prosecution is stopped by learned Magistrate by exercise of power under section 167 (5) of the Code of Criminal Procedure, whereas in the present case the final report is submitted by the police on the basis of amicable settlement of the dispute between the parties by intervention of common friends. Accordingly, the facts of the reported case are clearly distinguishable from the facts of the present case and as such the ratio of the report cannot be made applicable in the facts of the present case. 12. In “P.S. Meherhomji v. K.T. Vijay Kumar” reported in (2015) 3 C Cr.L.R. (SC) 254, cited on behalf of the opposite party No.1, the allegations were made casting aspersion on the reputation of the complainant by describing him as a cheat and habitual cheat embezzling crores of rupees. The allegations were conveyed to the Chairman of SEBI, Secretary, Ministry of Finance and other high authorities with sole intention to cause wrongful loss to the complainant. Learned Magistrate issued process for the offence under section 500 of the Indian Penal Code against two persons and dismissed the complaint under section 203 of the Code of Criminal Procedure against the remaining persons who were arraigned as accused only to cause harassment to them unnecessarily. In this report, clear and unambiguous aspersion was cast on the complainant by use of unrestrained language and as such clear case of defamation was made out under section 500 of the Indian Penal Code. In this report, clear and unambiguous aspersion was cast on the complainant by use of unrestrained language and as such clear case of defamation was made out under section 500 of the Indian Penal Code. However, in the present case the dispute was settled amicably between the parties due to intervention of common friends and the investigating officer submitted police report in final form praying for discharging the opposite party no.1 and others from the said criminal case. Accordingly, the facts of the present case are clearly distinguishable from the facts of “P.S. Meherhomji v. K.T. Vijay Kumar” (supra) which has no relevance in the present case. 13. Now, I would like to decide whether submission of final report in a criminal case on the basis of amicable settlement of dispute between the parties by intervention of common friends can come with the ambit of defamation punishable under Section 500 of the Indian Penal Code. It is relevant to quote the definition of defamation given in Section 499 of the Indian Penal Code, which is as follows: “499. Defamation:- 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. Explanation 1. – It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2.- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3.- An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 2.- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3.- An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.- No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a 10th some state, or in a state generally considered as disgraceful.” On perusal of the above definition of defamation I find that the petitioners can be prosecuted for the offence punishable under section 500 of the Indian Penal Code, if the imputation does not fall within the ambit any of ten Exceptions appended to section 499 of the Indian Penal Code. The Eighth Exception to section 499 of the Indian Penal Code reads as follows: “Eighth Exception-Accusation preferred in good faith to authorised person.- 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”. It appears from the Eighth Exception to section 499 of the Indian Penal Code that if any accusation is made by anyone in good faith to the authorised person which means the person who has lawful authority over that person with respect to the subject-matter of accusation, the said accusation cannot come within the ambit of defamation as defined under section 499 of the Indian Penal Code. 14. The contents of the petition of complaint filed by the opposite party No.1 disclose that the petitioner No.1 filed written complaint to the officer-in-charge of Shyampukur Police Station disclosing the fact that on June 6, 2011 the opposite party No.1 and his associates physically assaulted the petitioner No.1 and thereby she sustained bleeding in the advanced stage of pregnancy. Admittedly, the opposite party No.1 has purchased ¼th share in the premises in which the petitioner No.1 and members of her family are co-sharers. Admittedly, the opposite party No.1 has purchased ¼th share in the premises in which the petitioner No.1 and members of her family are co-sharers. It is alleged in the petition of complaint that on June 7, 2011 the petitioner No.2 (husband of the petitioner no.1) filed an affidavit in the Court of learned Magistrate to the effect that the dispute between the parties is settled amicably by intervention of common friends and that on June 7, 2011, the petitioner No.1 gave statement before the police to the effect that the dispute is settled amicably between the parties by intervention of common friends and she has no grievance against the opposite party no. 1 after giving birth of a male baby in the hospital. Ultimately, the Investigating Officer submitted final report by making observation that on June 6, 2011 the scuffle took place between the parties and in the clash the petitioner no. 1 suffered bleeding in advanced stage of pregnancy and was shifted to R.G. Kar Medical College and Hospital where she gave birth of a baby. The Investigating Officer submitted final report on the grounds that the dispute was settled amicably between the parties by intervention of common friends and the dispute was civil in nature. Had there been any mala-fide intention on the part of the petitioner no.1 and her husband to wreck vengeance on the opposite party no.1, the petitioner 1 would not have given statement before the police by exonerating opposite party no.1 of any criminal charge. Similarly, the petitioner no.2 being the husband of the petitioner no.1 filed an affidavit in the Court immediately after the registration of the FIR, so that the opposite party no.1 may be granted bail and ultimately paved the way for submission of final report by the investigating officer due to intervention of common friends. Thus, the foundation of the incident which took place on June 6, 2011 cannot be branded as false, frivolous and baseless particularly when the incident of scuffling took place and in the clash the petitioner no.1 suffered from bleeding in the advanced stage of pregnancy and gave delivery of a baby in the hospital. So, the accusation made by the petitioner no.1 before the officer-in-charge of Shyampukur Police Station will be covered under Eighth Exception to Section 499 of the Indian Penal Code. 15. So, the accusation made by the petitioner no.1 before the officer-in-charge of Shyampukur Police Station will be covered under Eighth Exception to Section 499 of the Indian Penal Code. 15. In view of my above findings, I have no hesitation to hold that the accusation was made by the petitioner no.1 before the lawful authority in good faith. Thus, the accusation made by the petitioner no.1 against the opposite party no.1 and his associates before the officer-in-charge of Shyampukur Police Station and her subsequent conduct reflected in various documents resulting in discharge of the opposite party no.1 from the criminal charge squarely falls within the ambit of Eighth Exception appended to Section 499 of the Indian Penal Code. Accordingly, contents of the petition of complaint do not disclose commission of offence punishable under Section 500 of the Indian Penal Code. The opposite party no. 1 has also failed to make out a case of criminal conspiracy against the petitioners. The continuation of the criminal proceeding in such a case against the petitioners will be an abuse of the process of the Court and as such I am inclined to invoke my inherent jurisdiction under section 482 of the Code of Criminal Procedure to quash the complaint case in question. 16. As a result, the complaint case no. C-165 of 2013 pending before the Court of learned Metropolitan Magistrate, 20th Court, Calcutta, is quashed. Criminal revision and the CRAN 379 of 2015 are, thus disposed of. The department is directed to send down a copy of this order to the Court of learned Magistrate for favour of information and necessary action. Urgent photostat certified copy of this order, if applied for, will be made available to the petitioner within a week from the date of putting in the requisites. Revisional application allowed.