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2019 DIGILAW 216 (UTT)

Ruchita Srivasta v. Vivek Swaroop

2019-03-15

SHARAD KUMAR SHARMA

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JUDGMENT : SHARAD KUMAR SHARMA, J. 1. Before adverting to the factual controversies as involved in the present C-482 application, it becomes inevitable for this Court to avoid reference to the provisions contained under Chapter 21 of the Indian Penal Code which, deals with the issue of “Defamation”. For commission of an offence under Section 499 of IPC, the Legislature itself has provided certain exceptions and the circumstances under which the offence under Section 499 of IPC could be said not to be made out against a person accused of it. In the instant case, the learned counsel for the applicant has drawn the attention of this Court to the 9th Exception on which reliance has been placed by him of Section 499 of IPC which reads as under:- “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 interest of the person making it, or of any other person, or for the public good.” 2. It contemplates that if by any action, words or utterances made thereof not having an intention to malign the prestige or an image of an individual and made in protection of ones own interest, that who is alleged to have committed the offence under Section 499, it will not amount to be defamation. As per the 9th exception, there has had to be a deliberate intention and the utterances of the nature which should intend to malign the prestige of the person concerned to whom it is extended but basic element necessary for this exception from Section 499 is that act or action is in good faith for protection of his own interest. 3. The argument of the learned counsel for the applicant is that in the absence of there being any element available in the complaint filed by the respondent the offence under Section 499 will not be made out, hence consequently the summoning made under Section 500 IPC by the impugned order dated 24.05.2010 would not be tenable. 3. The argument of the learned counsel for the applicant is that in the absence of there being any element available in the complaint filed by the respondent the offence under Section 499 will not be made out, hence consequently the summoning made under Section 500 IPC by the impugned order dated 24.05.2010 would not be tenable. To fortify his contentions, the learned counsel for the applicant had made reference to the pronouncements rendered by the Punjab and Haryana High Court in CRMA No. 44035 of 2015 (O&M), Navjote Kaur Khara v. State of Punjab and another, whereby the Punjab and Haryana High Court, while dealing with almost identical circumstances the effect of Section 499 IPC as discussed above. 4. In the pronouncements as relied, it has also been laid down that where a defamation is attributed against the accused based on a publication which is made in the newspaper, in order to substantiate that it is a defamatory remarks, it is necessary that when a reference is made to a news item to attracts the commission of an offence under Section 499 IPC, the publisher and the source from where the news item was published ought to be scrutinized by the learned trial Court before an accused is summoned on the complaint by the trial Court. The High Court has held that if the paper publications only describes a certain set of allegations levelled by the complainant against the accused applicant that in itself cannot be held out to be a defamatory remarks, more particularly, when it is levelled against an another persons who are already under litigation in a matrimonial proceedings and they had at one point of time enjoyed the relationship of being husband and wife. 5. The ratio has laid down that a complaint which is published in the newspaper by a spouse, as against the other who are under a litigation will not fall to be within the ambit of the defamatory remarks as contemplated under Section 499 IPC and for the said purpose, the reference to the exceptions 8 and 9 has been relied with by the aforesaid judgment. Consequently, considering the import of the 9th exception the C-482 Application was allowed, the relevant part on which the petitioner places reliance in support of his contention is quoted hereunder: “……….Therefore, it is submitted that the alleged defamatory imputation cannot be said to be published by the petitioner so as to defame the respondent. Counsel for the petitioner has also referred to the news item (Annexure P11) dated 08.12.2009 relied upon by the trial Court to submit that this is a news item published by a correspondent namely Manpreet Randhawa who is not even arrayed as respondent in the complaint and the news item only describes the allegations in the complaint made by the petitioner. Counsel for the petitioner in support of his contentions has relied upon the judgments "Harjit Kaur vs. Dr. Jaswinder Singh Bhogal", 2008(2) RCR (Criminal) 25 as well as "Shalu @ Shalini and others vs. Manmohan @ Munny and another", 2015(4) Law Herald 3634 where in similar circumstances, it was held by this Court that the allegations made during the pendency of matrimonial dispute, in a complaint made by one of the spouse cannot be termed as defamatory in view of Exceptions 8 and 9 to Section 499 IPC. It would be relevant to refer to 9th Exception to Section 499 IPC, which reads as under:- "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 4 of 6 hereinafter expected, to defame that person. 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." On the other hand, counsel for the State has opposed the prayer made by counsel for the petitioner.” 6. Reverting back to the controversy, which is involved in the present case and as could be revealed from the records also that admittedly the complainant and the accused-applicant were married on 12.02.2007. Reverting back to the controversy, which is involved in the present case and as could be revealed from the records also that admittedly the complainant and the accused-applicant were married on 12.02.2007. The applicant is said to have lodged an FIR on 27.07.2007 at Allahabad which was registered as Case Crime No. 310 of 2007 under Sections 498A, 323 and 506 IPC. However, based on the said set of allegations levelled in the FIR, the investigation was carried and a charge-sheet No. 172 of 2007 dated 29.08.2007 was submitted against the respondent on 29.08.2007. As a consequence of those proceedings though now it may not have much bearing, so far as the present summoning order is concerned, where the applicant has been summoned by the impugned order dated 24.05.2010 by the Court of Additional Civil Judge (J.D.), Roorkee, District Haridwar, in connection with the Complaint Case No. 2 of 2010, Vivek Swaroop Vs. Ruchita Srivastava purporting the commission of an offence under Section 500 of IPC. 7. It has been argued by the learned counsel for the applicant that no sanctity could be attached to the complaint filed by the respondent under Section 499 IPC for commission of an offence under Section 500, the reason being that even much prior in time, they had been under litigation and the respondent had already instituted the suit by invoking Section 13 of the Hindu Marriage Act, 1955, as against the present applicant by filing the suit for dissolution of marriage on 14.10.2007. However, the proceedings under Section 13 of the Hindu Marriage Act it is being informed and argued that it was decided ex-parte and a decree of divorce was rendered on 21.01.2008. But the applicant’s contention is that after having learnt about the ex-parte decree dated 21.01.2008, she has invoked the provisions of Order 9 Rule 13 to set aside the ex-parte decree of divorce, the same was allowed and the ex-parte decree of divorce as granted by the learned Family Court, Haridwar was set aside by an order dated 17.11.2008. Thus the proceedings under Section 13 filed by respondent complainant revived back to its number. 8. Thus the proceedings under Section 13 filed by respondent complainant revived back to its number. 8. At this juncture itself, we will have to pause and proceed to consider the impact of the proceedings of transfer which was sought at the behest of the present applicant by filing a transfer application before the Hon’ble Apex Court after the revival of the proceedings under Section 13 of the Hindu Marriage Act being HMA Case No. 302 of 2007, seeking transfer of the case from the learned Family Court, Haridwar to the Court of competent jurisdiction at Allahabad where the applicant was residing. 9. It is the case of the applicant that the Hon’ble Apex Court had allowed the transfer application vide its judgment dated 31.10.2008 and as a consequence thereto the proceedings under Section 13 of the Hindu Marriage Act as drawn on 14.10.2007 by respondent/husband/complainant stood transferred to the Court of competent jurisdiction at Allahabad. 10. It is at this stage after the order of transfer by Hon’ble Apex Court that the present controversies started to germinate from a complaint which has been lodged by the respondent under Section 499 read with Section 500 IPC on 04.01.2010. For the purposes of substantiating allegations of the complaint, the respondent had primarily laid the foundation of the complaint based on a communication which he alleges to have been sent by the applicant to his employers as back as in 2007 and the second source for lodging of the complaint was the publication, which the respondent contends to have been made by the present applicant in a local Daily on 03.03.2008. 11. What is significant to be considered at this stage and also argued by the learned counsel for the applicant that the foundation of the complaint under Section 499 read with Section 500 IPC are the incidents which have occurred in 2007 and in 2008. What is relevant is that these two incidents could not have been extracted by the complainant to initiate the proceedings by lodging a complaint belatedly on 04.01.2010, more particularly, in the light of the fact when the proceedings at the behest of the applicant stood transferred by the order of Hon’ble Apex Court dated 31.10.2008 when the proceedings under Section 13 of the Hindu Marriage Act, which was initiated before the learned Family Court, Haridwar was transferred to Allahabad. Thus lodging of the complaint under Section 499 read with Section 500 of IPC based on the allegation of the incidence alleged to be of 2007 and 2008, was nothing but as an afterthought and revengeful, having lodged belatedly after passing of the order by Hon’ble Apex Court on 13.10.2008, thereafter in relation to those incidents which had chanced even much prior to passing of the order by Hon’ble Apex Court transferring the proceedings under Section 13 of the Hindu Marriage Act, would be nothing but a malicious and an deliberate attempt to harass the applicant who otherwise stood succeeded by the order of Hon’ble Apex Court by getting the proceedings under Section 13 of the Act transferred to Allahabad from Haridwar by an order dated 13.10.2008. 12. No grievance alleged in the complaint filed by respondent could be placed on the set of allegation as levelled in the complaint itself for the reason that when the Court was holding the proceedings under Sections 200 and 202 on the complaint lodged by the respondent, the prime witness adduced by the respondent i.e. Ram Saran, as a matter of fact, his statement cannot be relied with as to be an gospel truth for initiation of the proceedings under Section 499 read with 500 IPC, because as per his statement itself which finds place on record which reads as under:- **jke'kj.k iq= eaxy falg mez 55 o"kZ is'kk lfoZl fuoklh 849 U;w vkokl fodkl lgkjuiqj gky fuoklh :M+dh dks"kkxkj esa lfoZl djrk gWawA eSa ifjoknh foosd JhokLro dks tkurk gWwa tks ,d Hkys balku gSa eSaus nSfud tkxj.k fnukafdr 28-05-2008 dks [kcj i<h tks foosd Lo:i ifjoknh dh ckcr Fkk ftlesa :fprk JhokLro us buds mij >wBs vkjksi yxk j[ks Fks ftl [kcj dk eq[; gSfMax iz'kklfud vf/kdkjh ls iRuh dks [krjk vafdr Fkk ftlesa [kcj dks i<dj esjh fuxkg esa iM+h oknh foosd Lo:i dh bTtr ds ckjs esa /kDdk yxk o esjh utjksa esa budk lkekftd lEeku ?kV x;kA tcfd okLro esa ,slk ugha FkkA blds vykok foHkkx esa Hkh ifjoknh ds f[kykQ >wBs izkFkZuk i= fn;s ftlls budh bTtr dks cVVk yxkA Lkqudj rlnhd fd;kA** 13. As a matter of fact, the statement of Ram Saran do not project a rightful image of the complainant and also his statement cannot be taken as to be an exclusive foundation for taking cognizance of an offence under Section 500 IPC for which the summoning order has been issued to the applicant, as he has expressed shock on reading the news article allegedly published by applicant against respondent, as shock allegedly suffered cannot constitute to be basis of inferring commission of offence under Section 499 read with Section 500 of IPC. 14. However, there had been further subsequent developments which though referred during the course of the arguments but cannot be addressed with authenticity in the absence of particulars and documents being brought on record and being made available to the counsel for the applicant that numerous other developments have taken place at a later stage due to which the complainant thereafter had avoided to participate in the proceedings of the present C-482 as would be apparent from the order sheet, and is even not present today though the matter is taken up in the revised call. This itself shows the sanctity of the complaint, lodged by the respondent as against the present applicant it was nothing but a deliberate attempt of vengeance of grievances and his personal grudges which he has generated with the passage of time against the present applicant. 15. Even after going through the contents of the complaints the reasons of which has been taken into consideration by the learned trial Court while issuing the summoning order do not go to prove that merely if she has lodged a complaint in 2007 or made a paper publication in 2008 and has slept over it after lodging of the aforesaid complaints and for the first time invokes Section 499 read with Section 500 by filing a compliant after a sufficient gap of time i.e. for the first time on 04.01.2010, no sanctity could be attached to the contents of the complaint itself. 16. Hence, on consideration of the totality of the matter as placed before this Court and as would reveal from the documents on record, it cannot sustain the summoning order dated 24.05.2010 would be nothing but an abuse of process of law Court, as it would simply result into harassment of the present applicant. 16. Hence, on consideration of the totality of the matter as placed before this Court and as would reveal from the documents on record, it cannot sustain the summoning order dated 24.05.2010 would be nothing but an abuse of process of law Court, as it would simply result into harassment of the present applicant. Consequently, this Court is of the opinion that the present C-482 Application is allowed. The impugned order dated 24.05.2010, as well as the complaint Case No. 2 of 2010, Vivek Swaroop Vs. Ruchita Srivastava are quashed. 17. However, there would be no order as to costs.