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2017 DIGILAW 811 (ORI)

Shyam Vir Singh v. Bhawani Shankar Pattjoshi

2017-07-31

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. Heard Mr. Himansu Bhusan Mangaraj, learned counsel for the petitioner. None appears on behalf of the opposite party. In this application under section 482 of Cr.P.C., the petitioner Shyam Vir Singh has challenged the impugned order dated 23.12.1999 passed by the learned S.D.J.M., Dharamgarh in I.C.C. Case No.19 of 1999 in taking cognizance of the offence under section 501 of the Indian Penal Code and issuance of process against him. 2. It is the case of the complainant-opp.party Bhawani Shankar Pattjoshi that the “Gayatri Mission” at Santikunj, Haridwar is an International Vedic Religious Organization having its own trust for management i.e. Sri Bedmata Gayatri Trust, Santikunj. It has got number of branches and trusts all over India and even in foreign countries. At Dharmgarh, there is a branch which is managed by Gayatri Parivar Trust, Dharmgarh and the opposite party-complainant was the Managing Trustee of the branch which was under the control and direct supervision of Sri Bedmata Gayatri Trust, Santikunj. It is the further case of the complainant that Pandit Sriram Sharma Acharya was the manager of Sri Bedmata Gayatri Trust who is dead and after him, his wife Mata Bhagabati Devi was managing the trust and after her death, her daughter D. Sailabala Pandia was managing the trust. It is further case of the complainant that during the management of the trust under the guidance of D. Sailabala Pandia, much development had taken place. The petitioner and the other co-accused persons were staying inside the Asharm premises at Haridwar and when D. Sailabala Pandia took the management of the trust, the accused persons under the leadership of Balaram Singh Parihar become envious and spread rumor and canvassed against Gayatri Parivar Institution for which they were removed from the institution in February, 1999. It is further case of the complainant that thereafter the petitioner and the other accused persons indulged in revengeful attitude and made harsh and disparaging remarks against the institution. They also published and distributed pamphlets to the devotees and to the branches of Gayatri Mission including Dharamgarh branch by making false and frivolous allegations to sink the prestige and dignity of the institution. On 20.07.1999 different pamphlets were received at Dharmgarh Branch containing the names of the accused persons. The accused persons maliciously spread rumor for which the institution was defamed. On 20.07.1999 different pamphlets were received at Dharmgarh Branch containing the names of the accused persons. The accused persons maliciously spread rumor for which the institution was defamed. When the complainant received such pamphlets, he contacted the head office who instructed the complainant to file the complaint petition. The members of the Gayatri Parivar were very much shocked after getting such pamphlets. The complainant filed the original pamphlets along with the complaint petition. 3. After filing of the complaint petition, the initial statement of the complainant was recorded and inquiry contemplated under section 202 Cr.P.C was conducted, during course of which one witness was also examined and on perusal of the complaint petition, initial statement of the complainant and the statement of the witness examined during inquiry under section 202 Cr.P.C., being prima facie satisfied regarding commission of offence under section 501 of the Indian Penal Code against the petitioner and other accused persons, cognizance of offence was taken accordingly and process was issued against the petitioner. 4. Mr. Himansu Bhusan Mangaraj, learned counsel appearing for the petitioner contended that the order of taking cognizance is vitiated in the eye of law and the ingredients of the offence are not attracted and there is no allegation against the Trust Board of Dharamgarh leveled in the pamphlets and therefore, the learned S.D.J.M., Dharamgarh has no jurisdiction to entertain such complaint petition. It is further stated that for publication of such pamphlet at Haridwar, the learned 2nd Addl. C.J.M., Haridwar has taken cognizance of the offences under sections 500/501/34 of the Indian Penal Code on 11.06.1999 and issued process against the petitioner and other accused persons named in the complaint petition and the said order was challenged before the Hon’ble High Court of Uttaranchal in Criminal Misc. Case No.350 of 1999 and the proceeding has been stayed. It is further contended that since the litigation for such printing and publication is subjudiced before the competent Court having local jurisdiction, the proceeding before the learned S.D.J.M., Dharamgarh is liable to be quashed otherwise it would amount to double jeopardy. It is further stated that pamphlets attached to the complaint petition are not meant to defame anybody rather it reveals the discontentment of a group of persons against the management. 5. It is further stated that pamphlets attached to the complaint petition are not meant to defame anybody rather it reveals the discontentment of a group of persons against the management. 5. Adverting to the contentions raised and on going through the averments made in the complaint petition carefully, it is mentioned that the accused persons under their signatures published and distributed the pamphlets to the devotees and public at the branches of the Gayatri Mission including Dharamgarh branch making false and frivolous allegations to sink the prestige and dignity of the great organization including its devotees. It is further mentioned in the complaint petition that the pamphlets were received at the Gayatri Parivar Trust, Dharamgarh. On going through the extract of the pamphlets which has been mentioned in the complaint petition, prima facie it appears to be defamatory. Section 499 of the Indian Penal Code defines defamation and sets out exceptions to it. Law is well settled that in order to constitute an offence under section 499 of the Indian Penal Code, it would be sufficient to show that the accused intended or reason to believe that imputation made by him would harm the reputation of the complainant, irrespective whether the complainant actually suffered directly or indirectly from the imputation alleged. It is not necessary for the prosecution either to allege or to prove that the act of the accused was directed at communicating the libel to any specified person or persons or that the libel, as a matter of fact, was brought to the notice of such person or persons. Everything printed or written, which reflects on the character of another, and is published without any lawful justification or excuse is a libel, whatever the intention may have been. To maintain a prosecution for defamation in a particular Court, there must be a publication/distribution of the libel within the local limits of jurisdiction of that Court. The complainant is none else but the Managing Trustee of the Gayatri Parivar Trust, Dharmgarh and therefore, he is the person aggrieved and on going through the extract of the pamphlets, I am satisfied that the prima facie ingredients of the offence under section 501 of the Indian Penal Code is made out. 6. The complainant is none else but the Managing Trustee of the Gayatri Parivar Trust, Dharmgarh and therefore, he is the person aggrieved and on going through the extract of the pamphlets, I am satisfied that the prima facie ingredients of the offence under section 501 of the Indian Penal Code is made out. 6. Even though, the order dated 05.07.2000 of the High Court of Uttaranchal at Nainital passed in Criminal Revision No. 852 of 2001 has been filed but the learned counsel for the petitioner is unable to give the details of the present position of such proceeding. Since the complaint case is of the year 1999 and this CRLMC application is of the year 2004, I am not inclined to grant further adjournment to the learned counsel for the petitioner to take instruction on the progress of the criminal revision petition. The rule of autrefois acquit and autrefois convict which is the rule of double jeopardy applies only when an order of acquittal or conviction is passed at a trial held by Court of competent jurisdiction and thereby safeguarding the accused to face trial again on the same facts of the offence for which he was tried earlier. Since the complaint petition basing on which 2nd cognizance of offences has been taken by the learned Additional C.J.M., Haridwar has not been filed and in that case, neither order of conviction nor acquittal has been passed, there is no bar in entertaining the complaint petition by the learned S.D.J.M., Dharmagarh. Therefore, I find no infirmity or illegality in the impugned order so as to interfere with the same invoking my inherent power under section 482 of Cr.P.C. 7. At this stage, the learned counsel for the petitioner contended that after taking of cognizance of the offence, process was directed to be issued against the accused persons on 23.12.1999 and the case was posted to 23.08.2000, on which date after the S.R. returned back with endorsement that the accused persons refused to accept the summons, the learned S.D.J.M., Dharamgarh issued non-bailable warrant of arrest against the petitioner. In the case of Inder Mohan Goswami & Anr. -Vrs.-State of Uttaranchal & Ors. reported in (2008) 39 Orissa Criminal Reports (SC) 188, it is held that in complaint cases, at the first instance, the Court should direct serving of the summons along with the copy of the complaint. In the case of Inder Mohan Goswami & Anr. -Vrs.-State of Uttaranchal & Ors. reported in (2008) 39 Orissa Criminal Reports (SC) 188, it is held that in complaint cases, at the first instance, the Court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the Court, in the second instance should issue bailable warrant. In the third instance, when the Court is fully satisfied that the accused is avoiding the Court’s proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. In view of such observation of the Hon’ble Supreme Court, the order of issuance of non-bailable warrant of arrest by the learned S.D.J.M., Dharamgarh vide order dated 23.08.2000 is not sustainable in the eye of law. Since the offence is bailable one, if the petitioner surrenders before the learned Trial Court within a period of two weeks from today, the learned S.D.J.M., Dharamgarh shall release him on bail on suitable terms and conditions. Accordingly, the CRLMC application being devoid of merit and stands dismissed. The petitioner is at liberty to raise all the points before the learned Trial Court at the appropriate stage which will be considered in accordance with law.