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2017 DIGILAW 552 (GUJ)

Babubhai (Babulal) Prajapati v. State of Gujarat

2017-03-10

BIREN VAISHNAV

body2017
JUDGMENT : Biren Vaishnav, J. 1. The applicant has approached this Court under Section 482 of the Criminal Procedure Code, challenging the lodging of a complaint by the respondent No. 2. Arunbhai Maganlal Mistry. 2. The respondent No. 2, the original complainant, according to the applicant was appointed as a Senior System Administrator-cum-Programmer on a contractual basis with the Veer Narmad South Gujarat University. On different occasions, from May 2004 to 28th October, 2007 according to the applicant since the respondent No. 2, the original complainant was responsible and found indulging in tampering with the results of the students of Engineering by declaring the concerned students, who had failed, as passed, a First Information Report was lodged against the respondent No. 2 - original complainant at the Umra Police Station on 19.10.2007, which was registered as C.R No. 768 of 2007. Sections 408, 465, 466, 467, 471 and 114 of the Indian Penal Code were invoked. It was the case of the University that the respondent No. 2 Arun Mistry along with six others had tampered with the results of the Engineering examination. This act was carried out by Shri Mistry and others in complicity with each other for the examinations held in April 2007-June 2007. 3. The respondent No. 2 herein on 17.07.2008, filed a First Information Report against the applicant who was the Pro-Vice-Chancellor of the University and the Second Judicial Magistrate First Class, Surat, based on such complaint filed by the respondent No. 2, after inquiry under Section 202 of Code of Criminal Procedure took cognizance of the complaint and passed an order dated 26.02.2009. Process was issued and the applicant was summoned pursuant to the complaint so lodged by the respondent. The complaint was so lodged invoking Section 499 of the Indian Penal Code and it was the case of the respondent No. 2 that the applicant had in a news item which was published in a daily newspaper "Sandesh" on 13.06.2008 given a statement before the press that the respondent No. 2, the original complainant had bungled in the results of the computer examinations and that he was the prime accused in such a scam. The complaint further stated that such a statement at the hands of the applicant in a newspaper attributing motive against the respondent No. 2 herein of being the prime accused in a mark-sheets scam lowered his reputation as such publication and imputation was intended to harm his reputation. Such imputation was made by the applicant knowingly and therefore it spoiled the reputation of the respondent herein. It was the case of the complainant as is made out on reading the complaint at annexure-'A' that when the alleged tampering occurred in the mark-sheets, he was not the System Administrator and even otherwise he was not the only accused in the First Information Report lodged by the University, of which the reference is made earlier. There were six other accused. According to the complainant, therefore, projecting the respondent No. 2 and imputing that he was the prime accused in a mark-sheets scam tantamounted to lowering his reputation, and therefore, the applicant by giving such press release had committed an offence under Section 499 of the Act and was therefore punishable under Section 500 thereof. 4. The issue before this Court, therefore, is as to whether the respondent No. 2 whose action of initiating issuance of process on the basis of a complaint filed against the applicant for having committed offence under Section 499 of the Indian Penal Code, by projecting the respondent No. 2 as the prime accused tantamounted to lowering his reputation. It is the case of the applicant, that the issuance of process at the hands of the learned Second Judicial Magistrate First Class, Surat, in the complaint so filed by respondent No. 2, would amount to an abuse of process of law, inasmuch as a complaint prior in point of time namely FIR CR No. 768 of 2007 has been filed by the University. It is further the case of the applicant that even if the Court comes to the conclusion that filing of the complaint invoking section 499 of the Indian Penal Code is not an abuse of process of law, ingredients of section 499 of the Indian Penal Code are certainly not satisfied so as to file such a complaint. 5. Mr. It is further the case of the applicant that even if the Court comes to the conclusion that filing of the complaint invoking section 499 of the Indian Penal Code is not an abuse of process of law, ingredients of section 499 of the Indian Penal Code are certainly not satisfied so as to file such a complaint. 5. Mr. Jigar Patel, learned advocate for the applicant, has contended that the publication in the daily newspaper "Sandesh" on 13.06.2008 did not tantamount to defamation when appreciated and viewed in juxtaposition to the complaint lodged by the University against the respondent No. 2. It is his further contention that, there was no question of defaming the respondent No. 2, as even prior to the press statement issued, news items had appeared in various dailies in October, 2007, wherein the respondent No. 2's role was elaborated. If the respondent No. 2 then did not think it fit to invoke Section 499 against the applicant or the University, now because a newspaper report has appeared on 13.06.2008 would not make it significant for the respondent No. 2 to allege that by issuing such a press statement the applicant has defamed the respondent No. 2 by such imputation and thereby lowered his reputation. According to Mr. Jigar Patel, assuming for the sake of arguments that Section 499 ingredients are satisfied, it is the case of the applicant that, since the expression of such opinion in a press report was in good faith, the applicant's case would be covered by Exceptions 3 and 7 of Section 499 and therefore, no case for carrying out further investigation by the Judicial Magistrate was warranted and the complaint therefore, filed at the instance of the respondent No. 2 and the consequential issuance of process at the hands of the Second Judicial Magistrate, First Class, Surat, should be quashed. 6. On the other hand Mr. Neeraj Vasu, who appeared for the respondent No. 2-original complainant, has taken me, to the contents of the complaint filed by him before the Second Judicial Magistrate, First Class, Surat and contended that the Press Report of 13.06.2008 published at the hands of the applicant herein categorically was as good as to make out an imputation against him intending to harm his reputation and therefore such imputation amounted to defamation and hence punishable under Section 500 of the Indian Penal Code. Learned advocate for the respondent further contended that, to project the applicant as the prime accused was also not justified, particularly when, evidently from reading the complaint filed by the University it was evident that he was only one of the seven accused in such an alleged scam and therefore, the emphasis in such a publication in the press on 13.06.2008, that the respondent was the prime conspirator tantamounted to prejudice his case also in the criminal case filed by the University and such action therefore, satisfied the ingredients of Section 499 of the Indian Penal Code. The contention of Mr. Jigar Patel, is that such a complaint could not have been filed without appropriate sanction from the State Government under Section 197 of the Criminal Procedure Code. It was contended by Mr. Vasu that publication of such a report for giving press statement certainly did not fall within such an act being carried out in the discharge of his duty, by the applicant. It was in no way connected with or had an access with his discharge of public duty and therefore Shri Jigar Patel's contention was misconceived. The question therefore needs to be addressed is: (a) whether this Court in exercise of its extraordinary power under Section 482 of the Cr.P.C. should quash the criminal complaint instituted by the respondent No. 2 against the Court of the Chief Judicial Magistrate, Surat on the ground that "(i) such proceedings were initiated only with an intention to harass the applicant tantamounting to abuse of process of law in view of a previous complaint filed by the University against the respondent. (b) Whether the complaint ought to be quashed as it did not satisfy the ingredients of Section 499 of the Indian Penal Code. (c) Whether if the Court came to the conclusion that the ingredients of Section 499 was satisfied and it was not an abuse of process of Court, would such a complaint be bad for want of sanction under Section 197 of the Code of Criminal Procedure." 7. Mr. Jigar Patel, learned advocate for the applicant, in support of his submissions has taken me through the provisions of Section 499 of the IPC and Exceptions 3 and 7 respectively thereof to contend that such a publication has been made in good faith and therefore, in view of such exceptions continuance of proceedings before the Magisterial Court are unwarranted. Mr. Jigar Patel, learned advocate for the applicant, in support of his submissions has taken me through the provisions of Section 499 of the IPC and Exceptions 3 and 7 respectively thereof to contend that such a publication has been made in good faith and therefore, in view of such exceptions continuance of proceedings before the Magisterial Court are unwarranted. Mr. Patel has also relied on a decision of a Supreme Court in the case of Director of Inspection and Audit and Others v. C L Subramaniyam AIR 1995 SC 866 to contend that the sanction under Section 197 of the Criminal Procedure Code is a prerequisite and therefore in view of the fact that since the publication in the newspaper was in act of and in discharge of the official duties of the applicant, sanction was imperative. 8. As against that Mr. Neeraj Vasu, in support of his contention has relied upon a decision of Supreme Court in the case of M A Rumugham v. Kittu Krishnamurthy (2009) 1 SCC 101 to contend that this Court should not exercise extraordinary powers under Section 482 and if the accused wants to invoke exceptions under Section 499 it would be necessary for him to prove such case before the trial Court, and therefore, to quash such a complaint would be premature for the High Court. Mr. Vasu has further relied on a decision of the Supreme Court in the case of Chandankumar Basu v. State of Bihar reported in 2014 JX (SC) 439 in support of his contention that the issue of sanction can be left to be decided at a later stage. 9. Having heard the learned advocates for the respective parties, in the opinion of this Court, exercise of power under Section 482 of the Code of Criminal Procedure is not warranted for the following reasons: "(A) If the complaint of the University dated 19.10.2007 (annexure-'C' page 31) is seen, the University has filed such a complaint invoking sections 408, 465, 466, 467, 471 and 114 of the Indian Penal Code not only against the respondent No. 2 but against six other accused. The complainant's name though appears in the body of complaint, on reading the complaint in its entirety the role of six others is also set out. The complainant's name though appears in the body of complaint, on reading the complaint in its entirety the role of six others is also set out. Evidently, therefore, though the University has lodged a complaint against seven individuals including the present respondent No. 2, in the press release dated 13.06.2008, what is projected in the newspaper is that the respondent No. 2 is the prime accused. The issue whether the respondent No. 2 and the other six are involved in such a scam is still at large before the Criminal court, as is undisputed by both the advocates for all the respective parties. The press release therefore, prima facie would amount to an imputation which would lower the reputation of the respondent. Such press release can certainly not be stated to be in good faith so as to come within Exceptions 3 and 7 respectively. On a first reading of the complaint, therefore, ingredients of Section 499 of the Indian Penal Code are satisfied and the complaint therefore filed at the hands of the respondent No. 2 would not tantamount to abuse of process of law, so as to, merit attention and interjection in exercise of powers under Section 482 of the Code of Criminal Procedure. (B) In view of my opinion recorded in (A) above, which are only prima facie observations, and such imputations at the hands of the applicant are a subject matter which can be decided only by leading evidence and whether they fall within the exceptions under Section 499 of the Indian Penal Code can only be gone into in a trial as it is a matter of evidence. Such a complaint cannot be quashed without further trial. (C) Once I hold that prima facie ingredients of Section 499 have been satisfied and that filing of such a complaint is not an abuse of process of law, the question that needs to be addressed is therefore, whether sanction under Section 197 of the Cr.P.C. is a pre-requisite for the complaint to proceed further. Section 197 of the Code of Criminal Procedure lays down that if the offence is committed in the discharge of an official duty, and if such an act/Commission is an integral part of the performance of the public duty, sanction would be a pre-requisite. Reliance placed by Mr. Section 197 of the Code of Criminal Procedure lays down that if the offence is committed in the discharge of an official duty, and if such an act/Commission is an integral part of the performance of the public duty, sanction would be a pre-requisite. Reliance placed by Mr. Jigar Patel on decision of the Supreme Court in the case of Director of Inspection and Audit and Others v. C L Subramaniyam (Supra), does not in any manner conclude the issue of whether such an act was carried out by the applicant in discharge of his official duty. In the case of State of Maharashtra v. Devhari Devasingh Pawar and others, reported in 2008 2 SCC 540 , the Supreme Court in para 14 has held as under while quoting a paragraph from the case of Romeshlal Jain v. Nagindersingh Rana (2006) 1 scc 294 . According to the Supreme Court, each case has to be considered on its own facts. Para 14 thus reads as under: "14 In Romesh Lal Jai v. Naginder Singh Rana this Court held and observed as under: (SCC p 312, para 33) "33 The upshot of the aforementioned discussions is that whereas an order of sanction in terms of Section 197 Cr.P.C. is required to be obtained when the offence complained of against the public servant is attributable to the discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained of has nothing to do with the same. A plea relating to want of sanction although desirably should be considered at an early stage of the proceedings, but the same would not mean that the accused cannot take the said plea or the court cannot consider the same at a larger stage. Each case has to be considered on its own facts. A plea relating to want of sanction although desirably should be considered at an early stage of the proceedings, but the same would not mean that the accused cannot take the said plea or the court cannot consider the same at a larger stage. Each case has to be considered on its own facts. Furthermore, there may be cases where the question as to whether the sanction was required to be obtained or not would not be possible to be determined unless some evidence is taken, and in such an event, the said question may have to be considered even after the witnesses are examined." In light of the above passage, we fail to see how tampering with the entries made in official registers, tearing of pages from different official registers and stowing them away in one's house can be related to the discharge of official duties. We do not have the slightest doubt that the allegations made against the accused related to acts that had no nexus or connection with the discharge of their official duties and, therefore, their prosecution on those allegations had no need of any sanction under Section 197 of the Code." Even, in the case of Shambhunath Mishra v. State of U P and oths., reported in (1997) 5 scc 326 , the question came up for consideration before the Supreme Court as to whether the Act therein i.e. misappropriation of public funds was an act which was in discharge of public duties. The Hon'ble Supreme Court held that the question has to be decided keeping in mind as to whether it was the official duty of the public servant or such act was carried out in furtherance of official duty. Giving of a press report or a press statement by the applicant can certainly be not said to be an act carried out in discharge of his public duty, nor can it be said to be one purported to be carried out in exercise of his official duty. Moreover, giving of a press statement was not under the cloak of office or professed to have been given in the exercise of his office. It certainly cannot be an act which has a reasonable nexus with the discharge of his official duty. 10. Moreover, giving of a press statement was not under the cloak of office or professed to have been given in the exercise of his office. It certainly cannot be an act which has a reasonable nexus with the discharge of his official duty. 10. In view of the aforesaid, I do not think it fit that this case falls within the parameters of a case where the complaint can be said to be one which prima facie does not disclose an offence or tantamounts to having been filed as an abuse of process of law. In my opinion, on reading the complaint as a whole, once the Magistrate has prima facie come to a conclusion that the allegations comes within the definition of "defamation under section 499" and could be taken cognizance of, further facts needs to be established at the trial and the applicant can certainly take defenses open to him. Prima facie, therefore, at this stage it is not a case warranting quashing of the complaint. Criminal Miscellaneous Application is therefore dismissed. Rule discharged. Interim relief, if any, stands vacated. Application Dismissed