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Allahabad High Court · body

2017 DIGILAW 1697 (ALL)

KAILASHI DEVI v. STATE OF U. P.

2017-07-20

ABHAI KUMAR

body2017
JUDGMENT : This petition has been filed by the applicant with a prayer to quash the summoning order dated 25.2.2004 as well as proceeding of Case No. 739 of 2004 (Sri Narain Vs. Kailashi Devi and others) pending in the court of AC.J.M. 1st Court No. 12, Gorakhpur. 2. The facts of the case are as follows: An application under section 156(3) Cr.P.C. was dismissed by the Magistrate vide order dated 2.11.2002. It is relevant to mention here that the application was also accompanied by the medical report. The trial court also observed that the applicant, if so wishes, can file a complaint case as per law. After that, a complaint case was instituted by applicant no.1. During proceeding statement of applicant no. 1 was taken under section 200 Cr.P.C. whereas statement of one witness was recorded under section 202 Cr.P.C. On 30.6.2003 in absence of the applicant no.1, the matter was dismissed in default. No further action was taken by the applicant no.1. Now the present case was preferred before the trial court on the ground that the opposite party no. 2 is a reputed person and having reputation in village as well as in his department where he is a multipurpose employee. The applicant is said to be a Government employee. 3. It is further asserted that by filing the above referred complaint case, applicant no.1 lowered his reputation in the eyes of public and thereby committed offence under section 500 I.P.C. The trial court after considering the evidence placed before it, summoned the applicants under section 500 I.P.C. for facing the trial. 4. The only contention that is raised before this court by the applicant is regarding the nature of alleged offence and on that ground, it is submitted that no offence under section 500 I.P.C. is made out. The learned counsel for the applicant submitted a ruling in his favour reported in 2010 Lawsuit (All) 2553 (Ganga Ram Sharma Vs. State of U.P. and another). 5. A co-ordinate bench of this court in the above referred ruling cited the relevant provisions, which are reproduced below. The learned counsel for the applicant submitted a ruling in his favour reported in 2010 Lawsuit (All) 2553 (Ganga Ram Sharma Vs. State of U.P. and another). 5. A co-ordinate bench of this court in the above referred ruling cited the relevant provisions, which are reproduced below. (4) Section 499 of the Indian Penal Code defines defamation, according to which, whosoever 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. Section 499 IPC has four explanations and the fourth explanation seems also to be relevant for the purpose of the present case, which is reproduced as follows: "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 lothsome state, or in a state generally considered as disgraceful." (5) There are as many as ten exceptions to the definition of the term "defamation". The exceptions VIIIth and IXth, according to the learned counsel for the petitioner, are relevant in this case, which are reproduced 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. 7. Ninth Exception.-Imputation made in good faith by person for protection of his or other's interests.- It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good." 8. 7. Ninth Exception.-Imputation made in good faith by person for protection of his or other's interests.- It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good." 8. It is observed by the Hon'able judge that the learned Magistrate as well as the Additional Sessions Judge was to see whether the allegation made in the complaint filed by the petitioner were based on any malice or were not probable and also whether exceptions VIIIth and IXth to Section 499 I.P.C. were attracted or not. 9. It is well settled principles that if some one launches a criminal prosecution in a competent court against any person making certain accusations against him and the allegations are neither based on any malice nor they are improbable, the person launching the prosecution cannot be prosecuted for the offence of defamation against the accused and his case would be covered by VIIIth exception to section 499 I.P.C. 10. If we see this fact in that back drop, then we found that there were various litigations between the parties. The paper regarding the litigation is also upon the record. These were filed along-with the counter affidavit by opposite party no.2. Seeing the litigation going on between the parties, it cannot be said that the referred matter is false and fabricated one and the probability of the incident is more than its improbability. 11. The complaint was not filed right away before the court rather an application under section 156(3) Cr.P.C. was initially moved by applicant no.1 along-with the medical report attached with it. Although, the court found the injuries to be simple but it cannot be ruled out that injury report not related to the incident shown by applicant no.1. Had there been a complaint case right away, then the bonafide of the applicant no.1 could have been doubted but seeing the fact that initially she moved an application under section 156(3) Cr.P.C., it can be termed as a bonafide steps taken by applicant no.1. If the court refused to get the FIR lodged, then there is no option but to file a complaint case and the same was done by the applicant no.1. 12. If the court refused to get the FIR lodged, then there is no option but to file a complaint case and the same was done by the applicant no.1. 12. Had there been any malice and had there been any intention to lower the reputation of opposite party no. 2 in society as well as in the department, then applicant no.1 must have prosecuted the referred case and she would not have left it to be dismissed in default. The reputation of opposite party no. 2 could have been dented after issuing of summons in the case. 13. Keeping in view the facts referred above, this court is of the opinion that the applicant initiated a criminal proceeding against the opposite party no.2 in a bonafide manner and seeing the enmity between the parties, the allegations made in the complaint case were very much probable. 14. The trial court while passing the order did not consider the settled principles and consequently the impugned order of summoning of the applicant under section 500 I.P.C. suffers from material irregularity resulting in case of violation of justice. 15. The petition is accordingly allowed. The impugned order of summoning of the applicant dated 25.2.2004 is quashed and the proceedings of Case No.739 of 2004 (Sri Narain Vs. Kailashi Devi and others) pending in the court of AC.J.M. 1st Court No. 12, Gorakhpur, will stand dismissed.