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2018 DIGILAW 386 (GAU)

Hira Hazarika v. State of Assam

2018-03-05

RUMI KUMARI PHUKAN

body2018
JUDGMENT & ORDER : 1. Heard Mr. S. Sharma learned counsel on behalf of the petitioner and Mr. T. K Mishra, learned Addl. P.P. on behalf of respondent No. 1. None appears for the respondent No.2. 2. The respondent No. 2 filed a complaint bearing CR Case No. 122/2014 before the court of CJM, Dibrugarh stating inter alia that she is a reputed young lady holding high esteem in the society and she is a elected member of No. 1 Bokul Mazgaon Constituency. It is submitted that the accused through his advocate issued a legal notice dated 27.8.2014 to her complaining that she has given a statement on 17.8.2014 before VNS a local news channel that the accused petitioner has misappropriated the Govt. fund sanctioned for repairing the entrance road of Bokul Mazgaon. It was also mentioned in the notice that no any such amount of Rs.2,30,385/- was sanctioned by the Govt. in the year 20-1-2013 for the repair of the road and also no amount of Rs.3,90,384/- has been sanctioned by the Govt. in the year 2013-14, but only 50% of the said amount was released for repairing of the said road and repairing of the said road is going on. Thus, denying the allegation of mutual cooperation the accused petitioner asked the complainant to make public of any proof, evidence against such mis-appropriation within seven day of receipt of notice and also asked to give clarification in any newspaper or TV channel etc. regarding the innocence of the accused regretting for the same. 3. According to the respondent/complainant the content of the said notice is highly defamatory and thereby lowering the esteem of the complainant in the society. The complainant also made a reply to the said notice asking the accused petitioner to substantiate the allegation within seven days otherwise legal action will be initiated against him. Thereafter the complaint was filed by the respondent that by such issuance of legal notice dated 27.8.2014 and by spreading the same among the public without any basis and hence, he is liable for the offence U/S 499/500 IPC. 4. The learned trial Court upon examination of the complainant and her witnesses took the cognizance of the offence under Section 500/501 IPC and summoned the accused petitioner to face trial. 4. The learned trial Court upon examination of the complainant and her witnesses took the cognizance of the offence under Section 500/501 IPC and summoned the accused petitioner to face trial. Accordingly, on his appearance, despite their submission that no case has been made out for defamation, the learned court explained the charge under said section of law by order, dated 21.12.2016. 5. Challenging the aforesaid order of taking cognizance and framing charge by the Court the present petition has been preferred by the accused petitioner questioning the legality and validity of the aforesaid orders. 6. Heard the submission of learned counsel for the petitioner and learned Addl. P.P. None appears for the respondent despite service of notice. I have carefully examined the document annexed, statement of witnesses produced by the respondent/complainant. It is discernible from the record itself that it is a tag of war between the petitioner and the respondent. It is alleged by the petitioner that the complainant/respondent made some statement before a TV Channel regarding misappropriation of money on the part of the present petitioner while constructing the road. Challenging the authenticity of the allegation, the present petitioner issued an Advocate Notice to the respondent/complainant demanding her to prove such allegation within seven days and in counter the respondent/complainant issued her legal notice to substantiate the allegation made against her. Such communication is exclusively between two persons raising allegation and counter allegation against each other and at no point of time the matter was published to the public. There is nothing to show that such notice was circulated to the people also. Although the said respondent made certain statement that the accused told the village people that he has to go to jail unless she paid Rs.20 lakhs as compensation, but, such an averment is not made in the complaint petition hence cannot prevail. She has specifically stated that as the accused petitioner failed to reply her notice so she has filed the defamation case. She has specifically stated that as the accused petitioner failed to reply her notice so she has filed the defamation case. The other witnesses so far examined by the complainant/respondent also stated about the fact that the respondent never told in the News channel about the misappropriation of money but it was simply told that the accused did not provide facility to the complainant as should be given to the other members of Panchayat and due to the legal notice issued by the accused petitioner the reputation of the complainant/respondent has been lowered in the esteem of society. 7. Let us appreciate the definition of defamation and the punishment thereof under the IPC, which reads as follows- "Section 499-Whoever by words either by spoken or intended to be read or signed or by visible representation 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 defend those persons. 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 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 4.- No imputation is said to harm a persons 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 lows the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful." "Section 500- Whoever defends another shall be punished for a simple imprisonment for a term, which may extend to two years or a fine or both. Section 501- printing or engraving matter known to the defamatory- Whoever prints or engraves any matter knowing or having good reason to believe that such matter is defamatory to any person shall be punished with imprisonment for a term which may extent to two years or fine or both." 8. In the present case, bare perusal of the complaint petition makes it abundantly clear that the petition was filed on the sole ground that the legal notice has been issued through a pleader by the present petitioner to the respondent claiming that statement made by her is false and she was asked to make a clarification and also asked to seek an apology to public. Issuance of pleaders notice is a private communication between the parties and it cannot be concluded that for issuance of such pleaders notice reputation of the others person will be lowered in the society. To lower down a reputation of a person imputation has to be published which is not made in this case. Mere serving of pleaders notice would not tantamount to degrade the reputation of a person concerned as it remains within the personal knowledge of the person concerned. The said legal notice was neither published nor reached before the public hence matter of satisfying the ingredient of defamation is not made out. It is the respondent herself, who let to know her witnesses about the legal notice but it is not the case that the accused petitioner published the said notice in any manner. 9. To constitute an offence of defamation the defamatory matter must be published i.e. communicated to some persons other than the persons about whom it is addressed. Mere communication of a defamatory matter to a person defamed is not publication. Such publication should be made to others with intention to defame some persons. Now in the given background of the case there was an occasion on the part of the accused petitioner to issue such legal notice to the respondent/complainant. It is because of the disclosure of some statement made by the respondent in the News-channel, the accused petitioner asked her to prove the authenticity of the same and same cannot be termed as a imputation by the complainant. It is because of the disclosure of some statement made by the respondent in the News-channel, the accused petitioner asked her to prove the authenticity of the same and same cannot be termed as a imputation by the complainant. The petitioner respondent could have properly responded to the said notice to end the matter but instead responding to the said legal notice in legal manner she choose to prefer the said legal notice as a defamatory one which will not come within the purview of the definition as indicated above. Perception of a person to a certain matter may from men to men but it may not constitute an offence before a Criminal Court unless the same does come within the parameter of an offence. 10. The learned trial Court failed to appreciate the materials on record in proper perspective of law and facts. That initial deposition of the witnesses are based on surmises. Taking of cognizance on the basis of such vague evidence indicates non-application of judicial mind. Further, continuance of such proceeding will be nothing but abuse of process of law. 11. Considering all entirety of the matter, the complaint case pertaining to CR Case No. 122/14 pending in the Court of JMFC, Dibrugarh is hereby quashed and set aside. The petition stands disposed of.