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2019 DIGILAW 587 (GUJ)

Dollyben Kantilal Patel v. State of Gujarat

2019-06-10

A.P.THAKER

body2019
ORDER : A.P. Thaker, J. 1. By way of filing this petition under Articles 226 and 227 of the Constitution of India as well as under Section 482 of the Code of Criminal Procedure, 1973 (for short the 'Code'), the petitioner has sought for the relief to quash and set aside the order dated 11.11.2014 passed by the learned Chief Judicial Magistrate, Vadodara in Inquiry No. 0/1027/2013 as well as the order of issuance of summons which culminated into Criminal Case No. 44985 of 2013 for the alleged offence under Section 500 of the Indian Penal Code. 2. The short facts of the prosecution case are as under:- 2.1. It is alleged that the petitioner herein has committed an offence under Section 500 of the Indian Penal Code by alleging against the complainant (respondent No. 2) that he was witnessing the incident of custodial rape committed on the petitioner while she was in police custody/on remand. Further, the other allegation is that the complainant herein forced the petitioner to settle the Rajkot land dispute between the parties. It is further alleged that the petitioner herein has called the press conference and has defamed the complainant by narrating the whole incident which took place during the custodial remand of the petitioner. 2.2. It is the contention of the petitioner herein that on 21.05.2012, an F.I.R. came to be registered against the petitioner and some other accused for the offence punishable under Sections 406, 409, 420, 465, 466, 468, 471, 477-A and 120-B of the Indian Penal Code by one Mr. Divyang Jha, who in his capacity as the Power-of-Attorney holder of one of the members of Gayatrinagar Cooperative Housing Society Ltd., has lodged the complaint with the C.I.D. Crime, Gandhi Nagar Zone police station which was registered as C.R. No. I-5 of 2012. Pursuant to registration of the said F.I.R., the petitioner was arrested on 23.05.2012 and was produced before the concerned learned Magistrate on 24.05.2012 and the learned Magistrate has granted police custody remand till 29.05.2012. 2.3. It is contended that thereafter, she has filed regular bail application before this Court being Criminal Misc. Application No. 7680 of 2012 wherein, she was released on bail in connection with the aforesaid F.I.R. registered with the C.I.D. Crime, Gandhi Nagar Zone police station. 2.4. 2.3. It is contended that thereafter, she has filed regular bail application before this Court being Criminal Misc. Application No. 7680 of 2012 wherein, she was released on bail in connection with the aforesaid F.I.R. registered with the C.I.D. Crime, Gandhi Nagar Zone police station. 2.4. That, on 14.07.2012, she forwarded the written complaint for custodial rape committed on her during her remand period from 24.05.2012 to 29.05.2012 before the Police Inspector (In-charge), Meghani Nagar police station. It is alleged that in spite of the efforts made by the petitioner for registering the F.I.R. for the offence punishable under Sections 376 and 120-B of the Indian Penal Code, no heed was paid to her request and she was constrained to approach this Court by way of filing Special Criminal Application No. 2206 of 2012 praying for the relief of registration of F.I.R. pursuant to her allegations made in the complaint dated 14.07.2012. That, the said Special Criminal Application was dismissed by this Court and against that order of this Court, she preferred Special Leave Petition being SLP(Cri.) No. 9256 of 2012 before the Apex Court, wherein, by way of an order dated 01.07.2013, the said S.L.P. came to be dismissed. 2.5. The petitioner has contended that on 23.11.2013, one complaint being Inquiry No:9 of 2013 was sought to be lodged by one Mr. Divyang Jha against the petitioner and other accused before the learned Chief Metropolitan Magistrate, Ahmedabad alleging the commission of offence under Sections 107, 109, 182, 195, 200, 211, 503, 511 and 120-B of the Indian Penal Code on the basis of the allegation that the petitioner herein has made false statements and has falsely stated on oath with regard to the incident of custodial rape. That, the said complaint was dismissed by the learned Magistrate and being aggrieved by the order of the learned Chief Metropolitan Magistrate, Criminal Revision Application No. 735 of 2013 was preferred by the complainant and by way of impugned order dated 20.12.2013, the said revision application was allowed and the learned trial Court was directed to decide, afresh in light of Section 195 of the Indian Penal Code. Pursuant to that order, the concerned learned Magistrate, by way of an order dated 29.04.2014, dismissed said Inquiry Case No. 9 of 2013 and against that order, Criminal Revision Application No. 297 of 2014 is pending before this Court. 2.6. Pursuant to that order, the concerned learned Magistrate, by way of an order dated 29.04.2014, dismissed said Inquiry Case No. 9 of 2013 and against that order, Criminal Revision Application No. 297 of 2014 is pending before this Court. 2.6. The petitioner has also contended that in the said Criminal Revision Application No. 297 of 2014, the original complainant has attempted to rob two advocates in the present dispute and filed Criminal Misc. Application No. 11361 of 2014 which came to be rejected by this Court on 20.09.2014. 2.7. By narrating the aforesaid facts, the petitioner herein has submitted that the impugned complaint for the offence under Section 500 of the Indian Penal Code against her is absolutely vague, illegal and false and is required to be quashed and set aside. She also contended that none of the fact constituting the offence under Section 500 of the Indian Penal Code is culled out from the present complaint. It is submitted by the petitioner that her efforts to get her F.I.R. registered have failed but, certain observations have been made by this Court as well as the Apex Court and the same bear significance and it was specifically mentioned by the Apex Court that it is not underestimating the grievance of the present petitioner made before it. It is the contention that, therefore, the allegation made by the petitioner in her written complaint before the other Courts has not attained any finality and, therefore, there is no decision on the complaint filed by the petitioner declaring it to be false and fabricated. It is contended that since there is no adjudication that the complaint filed by the petitioner is false, the petitioner could not be said to have defamed the complainant - respondent No. 2 herein by leveling allegations against him. According to the petitioner, this is a pressurize tactic of Mr. Divyang Jha and others to pressurize the present petitioner to settle the land dispute between the parties. It is further contended that certain land disputes and litigations arising out of such land dispute are going on between the parties and because of which, one after another complaint is being, lodged against her unnecessarily to harass the petitioner and pressurize her to settle the matter. The petitioner has specifically raised contention that modus operandi of Mr. It is further contended that certain land disputes and litigations arising out of such land dispute are going on between the parties and because of which, one after another complaint is being, lodged against her unnecessarily to harass the petitioner and pressurize her to settle the matter. The petitioner has specifically raised contention that modus operandi of Mr. Divyang Jha is required to be seen to the effect that he is supervising all the litigations. That, his complaint has been dismissed due to which, another complaint in the present form has been lodged against the petitioner and this is nothing but a pressurize tactic adopted by the complainant and his associates and on these grounds, it is submitted by the petitioner that the entire proceedings against her may be quashed and set aside. 3. Respondent No. 2 -original complainant - Arbindbhai s/o. Dwarkadas Jani has filed an affidavit-in-reply. He has opposed the present petition and has contended that the petitioner has falsely stated that she is a national citizen of India whereas, in all her letters written by her to the Police Inspector with regard to her complaint under Section 376 read with Section 120-B of the Indian Penal Code, she has stated that she is a citizen of U.S. and permanently settled in U.S. According to him, no any fundamental right guaranteed under the Constitution of India is violated so far as the petitioner is concerned and on that ground above, the petition itself is not maintainable. 3.1. It is stated that his complaint before the learned Chief Judicial Magistrate is proper and after verifying everything, the learned Magistrate has found prima facie case for issuance of process and order of the learned Magistrate is a legal one. He also Contended that the said Inquiry Case is at the stage of evidence as the learned trial Court has recorded the plea and posted the same for taking evidence. It is contended that at the stage of recording of evidence, this Court may not entertain present petition under Section 482 of the Code. According to him, all the ingredients of Section 500 of the Indian Penal Code are satisfied and there is prima facie material before the learned trial Court. Regarding facts of other complaint filed by Mr. Divyang Jha, it is stated that those facts are irrelevant and have no bearing to the facts of the present case. According to him, all the ingredients of Section 500 of the Indian Penal Code are satisfied and there is prima facie material before the learned trial Court. Regarding facts of other complaint filed by Mr. Divyang Jha, it is stated that those facts are irrelevant and have no bearing to the facts of the present case. It is contended that the present petition is required to be dismissed with exemplary cost. 4. Heard learned advocate Mr. J.S. Unwala appearing for learned advocate Mr. Parth Contractor for the petitioner, learned A.P.P. Ms. Monali Bhatt for the respondent No. 1 -State and learned advocate Mr. Bharat Jani with learned advocate Ms. Mohini Bhavsar for respondent No. 2 - complainant at length. Perused the material placed with the matter. Considered the decisions cited at bar. 5. Learned advocate Mr. J.S. Unwala for the petitioner has vehemently submitted the same facts which were narrated in the present petition. While referring to Exceptions 8 and 9 of Section 499 of the Indian Penal Code, he has contended that the written complaint lodged by the petitioner for the alleged offence under Section 376 of the Indian Penal Code for her custodial rape is within the aforesaid Exceptions of Section 499 of the Indian Penal Code. He also submitted that by merely filing a petition before this Court and before the Apex Court, no case of any defamation of the complainant is made put. He has contended that the written complaint made by the petitioner against the respondent No. 2 and others, is made to the public authority and the complaint was addressed to the Police Inspector, Meghaninagar police station and, therefore, there cannot be defamation if anybody approaches the public authority alleging any offence committed by the accused. He has contended that the written complaint lodged by the present petitioner may not give rise as to defamation of anybody. According to him, the media - press has published the contains of the complaint of the petitioner as a press report and it was not at the instance of the petitioner herein. He has also contended that during the publication of the press report, there was no chance for the petitioner to address to public gathering as she was in custody. While referring to the material placed with this matter regarding the complaint lodged by one Mr. He has also contended that during the publication of the press report, there was no chance for the petitioner to address to public gathering as she was in custody. While referring to the material placed with this matter regarding the complaint lodged by one Mr. Divyang Jha and the proceedings thereof reached upto this Court and ultimately the dismissal of the private complaint of said Mr. Jha, learned advocate Mr. Unwala has submitted that all these facts suggest that said Mr. Divyang Jha along with the present respondent No. 2 and others, has tried to pressurize the petitioner for settling the land dispute which arose between the parties. 5.1. While referring to the observations of the Apex Court pertaining to the S.L.P. filed by the petitioner against the order of this Court rejecting her prayer for directing the authority to register her complaint under Section 376 of the Indian Penal Code etc., he has also stated that even the Apex Court has prima facie believed that there is a serious offence and, therefore, allegation made by the petitioner in her written complaint to the police authority, cannot be termed as defamation of the respondent No. 2. According to him, considering these factual aspects and the material placed on record, the learned trial Court ought not to have taken cognizance of the offence and has materially erred in issuing the summons for the alleged offence under Section 500 of the Indian Penal Code. While relying on the following decisions, learned advocate Mr. J.S. Unwala for the petitioner has submitted to allow the petition and to quash the criminal proceedings initiated by the respondent No. 2 for the alleged offence under Section 500 of the Indian Penal Code. While relying on the following decisions, learned advocate Mr. J.S. Unwala for the petitioner has submitted to allow the petition and to quash the criminal proceedings initiated by the respondent No. 2 for the alleged offence under Section 500 of the Indian Penal Code. (i) Kanwal Lal v. State of Punjab and Haryana, reported in AIR 1963 SC 1317 ; (ii) Rajendra Kumar Sitaram Pande and others v. Uttam and another, reported in (1999) 3 SCC 134 : ( AIR 1999 SC 1028 ); (iii) V. Palani v. S.P. Chandrabose, reported in 2003 CrLJ 2594 ; (iv) Vinod Dattatray Samel v. Ravajibhai M. Patel, reported in 1993(3) Crimes (HC) 696; (v) Jeffrey J. Diermeier and another v. State of West Bengal and another, reported in (2010) 6 SCC 243 : (2010 AIR SCW 3493); (vi) Chandrakant J. Patel v. V.N. Srivastava, reported in: 2011(339) ITR 310; (vii) Chairman, Railway Board and others v. Chandrima Das (MRS) and others, reported in (2000) 2 SCC 465 : ( AIR 2000 SC 988 ); (viii) Harbhajan Singh v. State of Punjab and another, reported in AIR 1966 SC 97 ; (ix) State of Haryana and others v. Bhajan Lal and others, reported in 1992 Supp (1) SCC 335 : ( AIR 1992 SC 604 ) and; (x) Shri Laxman Jairam Malvankar v. Smt. Reshma Ramesh Narvekar, 6. Per contra, learned A.P.P. Ms. Monali Bhatt for the State has submitted that after verifying the material on record, the learned trial Court has issued process and, therefore, at this stage, the powers under Section 482 of the Code may not be exercised. During her submission, she has relied upon the decision in the case of Prabhu Dutt Tiwari v. State of Uttar Pradesh and others, reported in (2018)13 SCC 609 : (AIR 2017 SC (Supp) 298). 7. Learned advocate Mr. During her submission, she has relied upon the decision in the case of Prabhu Dutt Tiwari v. State of Uttar Pradesh and others, reported in (2018)13 SCC 609 : (AIR 2017 SC (Supp) 298). 7. Learned advocate Mr. Bharat Jani for the respondent No. 2 - original complainant has vehemently opposed the present petition and has submitted that the petition itself is not maintainable on the technical ground that the petitioner herein is not a citizen of India and yet, she has narrated in the petition that she is citizen of India whereas, before the police authority and in all the correspondences, she has narrated that she is a citizen of U.S. and settled in U.S. Therefore, according to him, there is no breach of any fundamental rights of the petitioner and, therefore, she cannot get any relief whatsoever under the provisions of the Constitution of India. 7.1. While referring to the material placed on record, learned advocate Mr. Bharat Jani for the respondent No. 2 has submitted that when the petitioner approached this Court for registration of her alleged complaint, this Court has refused the same and against the order of this Court, when she has filed S.L.P. before the Apex Court, it was rejected by the Apex Court. He has contended that during the pendency of the entire proceedings, the petitioner has given interview before the press and has thereby made allegations in public. He contended that the various newspapers have reported the entire written complaint of the petitioner for the alleged offence under Section 376 of the Indian Penal Code against the present respondent No. 2 and that is the base of the complaint filed by respondent No. 2 under Section 500 of the Indian Penal Code. 7.2. While referring to the allegations made against one Mr. Divyang Jha and relating to his proceedings, learned advocate Mr. Bharat Jam for respondent No. 2 has vehemently submitted that those litigations have no bearing with the present complaint filed by the present petitioner as respondent No. 2 has been defamed in his society at large on the false allegations made by the present petitioner regarding the custodial rape committed by the other accused and at that time, the present accused was present there. He has also contended that the case does not fall under the Exceptions 8 and 9 of Section 499 of the Code. He has also contended that the case does not fall under the Exceptions 8 and 9 of Section 499 of the Code. According to him, the material placed with the impugned complaint, clearly establishes that there is a prima facie case of defamation and after perusing the material placed on record and after examining the complaint, the learned trial Court has issued process against the present petitioner and, therefore, this is not a stage where, the inherent powers under Section 482 of the Code may be exercised. He contended that the criminal proceeding is pending at the stage of recording of evidence and let the learned trial Court record the evidence and thereafter decide the case. 7.3. While referring to the complaint, learned advocate Mr. Bharat Jani for the respondent No. 2 has submitted that the petitioner has made a false statement that she was in jail when the press note was released and has stated that she was already on bail due to the order of this Court dated 11.07.2012. According to him, after her release, she has given interview to the press and on the basis of that interview and written complaint, the press has published the entire story. According to him, all the newspapers published the news at the instance of the petitioner herein and the public at large has read it in the newspapers and also seen on digital media. According to him, the allegations made by the present petitioner for the offence under Section 376 of the Indian Penal Code against the present respondent No. 2, are defamatory in nature. 7.4. While referring to Section 499 of the Indian Penal Code, learned advocate Mr. Bharat Jani contended that there was no any reason for the petitioner to file complaint for the alleged serious offence against the respondent No. 2 and the written complaint made by the complainant i.e. the present petitioner is not a bonafide one. He also contended that whatever has been stated by the respondent No. 2 -original complainant in his affidavit-in-reply has not been rebutted by filing rejoinder by the present petitioner. According to him, the petitioner would get chance to rebut all the allegations by way of defence in a trial and a liberty is required to be given to both the sides to place their allegations and defence before the learned trial Court. According to him, the petitioner would get chance to rebut all the allegations by way of defence in a trial and a liberty is required to be given to both the sides to place their allegations and defence before the learned trial Court. According to him, this is a pre-mature stage as the learned trial Court has only issued the summons. He has also contended that considering the facts and circumstances of the present case, the trial is required to be conducted which is not progressed due to filing of this petition. He also contended that there is no illegality committed by the learned trial Judge on issuing the process against the petitioner and when there is no such illegality committed by the learned trial court, this Court may not exercise inherent powers under Section 482 of the Code for quashing of the complaint. While relying on the following decisions, he has prayed to dismiss the present petition:- (i) M.A. Rumugam v. Kittu alias Krishnamoorthy, reported in (2009)1 SCC 101 : ( AIR 2009 SC 341 ); (ii) Bikramjit Ahluwalia & Ors. v. Simran Ahluwalia & Anr., (iii) Rohini Singh, d/o Late Mr. M.B. Singh & v. State of Gujarat & Ors. (iv) Jeffrey J. Diermeier and another v. State of West Bengal and another, reported in (2010) 6 SCC 243 : (2010 AIR SCW 3493); (v) Sewakram Sobhani v. R.K. Karanjia, Chief Editor, Weekly Blitz and others, reported in (1981)3 SCC 208 : ( AIR 1981 SC 1514 ); 8. In reply to the submissions made by the learned A.P.P. Ms. Monali Bhatt for the State as well as learned advocate Mr. Bharat Jani for the respondent No. 2-original complainant, learned advocate Mr. J.S. Unwala for the petitioner has submitted that his client is ready to file an affidavit and to delete the words that she is the citizen of India, as these words are being typed in the petition as a normal practice of filing the petition in this Court He has also contended that the criminal proceedings initiated against the present petitioner can be agitated by her for breach of her legal rights as an ordinary person and that same can be available under Article 226 of the Constitution of India as well as under Section 482 of the Code. While referring to Article 21 read with Article 226 of the Constitution of India, learned advocate Mr. While referring to Article 21 read with Article 226 of the Constitution of India, learned advocate Mr. J.S. Unwala for the petitioner has submitted that the provisions therein are available to any person which is not merely available to the citizen of India and, therefore, according to him, though the petitioner has inadvertently referred herself as a citizen of India, her petition may not be dismissed only on this technical ground and she is ready to file necessary affidavit to the effect that the averment made in the petition as to her being a citizen of India may be deleted. 9. In the case of Bhajan Lal and others ( AIR 1992 SC 604 , para 108) (supra), in para 102, the Apex Court has held as under:- "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined arid sufficiently channelised and inflexible guidelines or rigid formulate and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence Or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can. ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 10. In the case of Kanwal Lal ( AIR 1963 SC 1317 ) (supra), while referring to Exceptions 8 and 9 under Section 499 of the Indian Penal Code, the Apex-Court has observed as follows:- "4. In order to establish the defence under this exception, the accused would have to prove that a person to whom the complaint was made and lawful authority over the person complained against, in respect of the subject-matter of the complaint." 5. In other words, besides the bona fides of the person making the imputation, the person to whom the imputation is conveyed must have a common interest with the person making it which is served by the communication. This exception merely reproduces the principle laid down by Lord Campbell, C.J., Harrison v. Bush (i). In other words, besides the bona fides of the person making the imputation, the person to whom the imputation is conveyed must have a common interest with the person making it which is served by the communication. This exception merely reproduces the principle laid down by Lord Campbell, C.J., Harrison v. Bush (i). "A communication made bona fide upon any subject matter in which the party communicating (1)(1855)5 E. & B. 344, 348; 119 E.R. 509, has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contains criminatory matter which, without this privilege, would be slanderous and actionable." The point of difference between Exceptions, 8 and 9 is that whereas in the former the person to whom the complaint is made must have lawful authority to deal with the subject-matter of the complaint and take proceedings against that person, there is no such requirement in Exception 9 where it is sufficient if a communication is made to a person for the protection one's own interest in which the other also has an interest. This is clearly brought only by the illustrations to the exception." 11. In the case of Rajendra Kumar Sitaram Pande ( AIR 1999 SC 1028 ) (supra), the fact of the case was that the allegation in the complaint was to the effect that the accused persons made a complaint to the Treasury Officer containing false imputations to the effect that the complainant had came to the office in a drunken state and abused the Treasury Officer. That, the Magistrate directed the Treasury Officer to hold inquiry and submit a report and accordingly, the report of the Treasury Officer indicating that the departmental inquiry had been initiated and the complainant was found guilty, was submitted to the Magistrate. In view of the peculiar facts of that case, it was held that Exception 8 of Section 499 of the Indian Penal Code was attracted and prima facie, there was no case for defamation. However, it is observed therein that Section 499 of the Indian Penal Code defines the offence of defamation and Section 500 provides the punishment for such offence. However, it is observed therein that Section 499 of the Indian Penal Code defines the offence of defamation and Section 500 provides the punishment for such offence. Exception 8 to Section 499 clearly indicates that it is not a defamation to prefer in good faith an accusation against any person to any of those, who have lawful-authority over that person with regard to the subject-matter of the accusation. 12. In the case of Vinod Dattatray Samel (supra), the accused, who were tried under Section 500 of the Indian Penal Code, were acquitted by the trial Court. It was challenged by the original complainant before the Bombay High Court wherein, considering the factual aspects of the case, it was held and observed that the imputation was made for protection of the interest of the company. They were made before a Court which was held to be seized with the disputes with regard to the termination of the services of the complainant and those imputations were made in good faith and were made before a Judge for the purpose of justifying the order of termination. Therefore, the accused was held to be covered by Exceptions 7, 8 and 9 of Section 499 of the Indian Penal Code and, therefore, the accused was not held guilty of the offence of defamation under Section 500 of the Indian Penal Code. 13. In the case of Jeffrey J. Diermeier and another (2010 AIR SCW 3493, paras 19, 23, 24, 25, 27 & 32) (supra), it was held as under:- "23. The purport of the expression "rarest of rare cases", to which reference was made by Shri Venugopal, has been explained recently in Som Mittal v. Govt. of Karnataka ( AIR 2008 SC 1528 ). Speaking for a Bench of three Judges, Hon'ble the Chief Justice said: (SCC pp. 580-81, para 9) (at pp. 1531-1532, para 9 of AIR). "9. When the words 'rarest of rare cases' are used after the words 'sparingly and with circumspection' while describing the scope of Section 482, those words merely emphasize and reiterate what is intended to be conveyed by the words 'sparingly and with circumspection'. They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression "rarest of rare cases" is not used in the sense in which it is used with reference to punishment for offences under Section 302, IPC, but to emphasize that the power under Section 482, Cr.P.C. to quash the FIR or criminal proceedings should be used sparingly and with circumspection." 28. "Defamation" is defined under Section 499 of the IPC. It reads as under: "499. 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 hereinafter excepted, to defame that person." 29. To constitute "defamation" under Section 499 of the IPC, there must be an imputation and such imputation must have been made with intention of harming or knowing or having reason to believe that it will harm the reputation of the person about whom it is made. In essence, the offence of defamation is the harm caused to the reputation of a person. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant, irrespective of whether the complainant actually suffered directly or indirectly from the imputation alleged. 30. However, as per Explanation 4 to the Section, no imputation is said to harm a person's reputation, unless that imputation directly or indirectly 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, in the estimation of others 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. 32. The Tenth Exception to Section 499, IPC reads as follows: 'Tenth Exception.- Caution intended for good of person to whom conveyed or for the public good. 32. The Tenth Exception to Section 499, IPC reads as follows: 'Tenth Exception.- Caution intended for good of person to whom conveyed or for the public good. - It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or, of some person in whom that person is interested, or for the public good." 37. It is trite that where to the charge of defamation under Section 500, IPC the accused invokes the aid of Tenth Exception to Section 499, IPC, "good faith" and "public good" have both to be established by him. The mere plea that the accused believed that what he had stated was in "good faith" is not sufficient to accept his defence and he must justify the same by adducing evidence. However, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. 38. It is well settled that the degree and the character of proof which an accused is expected to furnish in support of his plea cannot be equated with the degree of proof expected from the prosecution in a criminal trial. The moment the accused succeeds in proving a preponderance of probability, onus which lies on him in this behalf stands discharged. Therefore, it is neither feasible nor possible to lay down a rigid test for deciding whether an accused person acted in "good faith" and for "public good" under the said Exception. 39. The question has to be considered on the facts and circumstances of each case, having regard to the nature of imputation made; the circumstances on which it came to be made and the status of the person who makes the imputation as also the status of the person against whom the imputation is allegedly made. These and a host of other considerations would be relevant and required to be considered for deciding appellants' plea of "good faith" and "public interest". Unfortunately, all these are questions of fact and matters for evidence. 13.1. These and a host of other considerations would be relevant and required to be considered for deciding appellants' plea of "good faith" and "public interest". Unfortunately, all these are questions of fact and matters for evidence. 13.1. Ultimately, considering the facts of that case, it was held that the stage for recording of evidence has not been reached and, therefore, in the absence of any evidence on record, the Court find it difficult to return a finding whether or not the appellants have satisfied the requirements of "good faith" and "public good" so as to fall within the ambit of Tenth Exception to Section 499 of the Indian Penal Code and resultantly, refused to quash the complaint. 14. In the case of Shri Laxman Jairam Malvankar (supra), a civil litigation was filed for compensation on the basis that the defendant therein had lodged false complaint and for publication of libel and the trial Court dismissed the suit. The appellate court also dismissed the suit. In the Second Appeal, the substantial questions of law were (i) whether the police complaint is a public document and can be made available for publication in press? (ii) Can a police complaint, containing only allegation unilaterally made, defame the accused if published in press, till the crime is investigated, tried and the accused is convicted? 14.1. It was found from the record that publications of the facts were only narrated as alleged by the defendant No. 1 therein in the police complaint and it was substantially a report of the complainant and the police has not taken any action. 14.2. While dismissing the Second Appeal, the Bombay High Court has observed in para 23 as under:- "23. The defendant No. 1 has admitted that she has lodged the complaint against the plaintiff for illegal and criminal acts committed by him. Police are the authorities before whom complaints for criminal act against anyone can to be filed. Police have the authority to investigate into the said complaints. Therefore, merely by lodging complaint with police, no one may commit the offence of defamation. Admittedly, there was a civil litigation pending between the plaintiff's brother and the family of the defendant No. 1. The plaintiff has not produced any evidence to prove that the police, after investigation, found that the said complaint was false and fabricated. Therefore, merely by lodging complaint with police, no one may commit the offence of defamation. Admittedly, there was a civil litigation pending between the plaintiff's brother and the family of the defendant No. 1. The plaintiff has not produced any evidence to prove that the police, after investigation, found that the said complaint was false and fabricated. The plaintiff has not proved that it is the defendant No. 1 who caused to publish the contents of the complaint in the newspaper. The defendant No. 2 has published the hews about the complaint which has been admittedly lodged at Bicholim Police Station. The news does not state that the contents of the complaint are true. The plaintiff has also failed to prove that the defendant No. 2 published the news with a view to defame the plaintiff." 15. In the case of Prabhu Dutt Tiwari v. State of U.P (AIR 2017 SC (Supp) 298) (supra), the complainant lodged the complaint for the offences under: Sections 419, 420, 468, 471 and 120-B of the Indian Penal Code before the concerned Magistrate and after necessary formalities, the learned Additional Chief Judicial Magistrate issued summons against the accused, which were challenged by the accused before the concerned High Court wherein the order of the trial Court was quashed by the High Court. Against that order, the appellant - original complainant filed petition before the Supreme Court wherein the Supreme Court has held and observed in para 3 that at the stage of summoning the accused on the basis of a private complaint, all that is required is a satisfaction by the Magistrate that there is sufficient ground to proceed against the accused in the light of the records made available and the evidence adduced by the complainant. It is further held and observed in para 4 that at the stage of summoning, the satisfaction required for the Magistrate is only to see whether there is sufficient ground to proceed against the accused. 16. In the case of Rohini Singh v. State of Gujarat (supra), while dealing with many decisions, this Court has held and observed in paras 28, 30, 34, 35 and 36 as under:- 28. 16. In the case of Rohini Singh v. State of Gujarat (supra), while dealing with many decisions, this Court has held and observed in paras 28, 30, 34, 35 and 36 as under:- 28. An inquiry under section 202 of the Code is not in the nature of a trial for there can be in law only one trial in respect of any offence and that a trial can commence only after the process is issued to the accused. Such proceedings are not strictly the proceedings between the complainant and the accused. A person against whom a complaint is filed does not become an accused until it is decided to issue process against him. Even if he participates in the proceedings under section 202 of the Code, he does so, not as an accused, but as a member of the public. The object of the inquiry under section 202 of the Code is the ascertainment of the fact whether the complaint has any valid foundation calling for the issue of process to the person complained against or whether it is a baseless one on which no action need be taken. The section does not require any adjudication to be made about the guilt or otherwise of the person against whom the complaint is preferred. Such a person cannot even be legally called to participate in the proceedings under section 202 of the Code. The nature of these proceedings is fully discussed by the Supreme Court in two of its cases, i.e., (i) Vadilal Panchal v. Dattatraya Dulaji Chadigaonker,: AIR 1960 SC 1113 and (ii) Chandra Deo Singh v. Prakash Chandra Bose,: AIR 1963 SC 1430 , in which, section 202 of the former Code of Criminal Procedure arose for consideration; The present section 202, being a substantial reproduction of the former section 202, the observations made by the Supreme Court in the two decisions., referred to above, on the nature of the proceedings under that section would have to be accepted as governing the proceedings under section 202 of the present Code. 30. 30. The scope of the inquiry under section 202 of the Cr.P.C. is extremely limited-limited only to the ascertainment whether or not there is sufficient ground for proceeding (i) on the materials placed by the complainant before the court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. As noted above, it is well settled that in the proceedings under section 202, the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not. 34. In the case of P.S. Meherhomji v. K.T. Vijay Kumar & Ors., (2015) 1 SCC 788 : (AIR Online 2014 SC 286), the Supreme Court observed in para 15 as under; "So far as the complaint alleging the offence under section 499, IPC is concerned, if on consideration of the allegations the complaint is supported by a statement of the complainant on oath and the necessary ingredients of the offence are disclosed, the High Court should not normally interfere with the order taking cognizance." 35. In Dhanalakshmi v. R. Prasanna Kumar (1990) Supp SCC 686 : ( AIR 1990 SC 494 ), a three Judge Bench of the Supreme Court held as under; 'Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find 167 out whether the case would end in conviction or not. The complaint has to be read as a whole. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find 167 out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious. in that event there would be no justification for interference by the High Court.' 36. In Chand Dhawan v. Jawahar Lal (1992) 3 SCC 317 : ( AIR 1992 SC 1379 ), the Supreme Court, while considering the power of the High Court under section 482, Cr.P.C. and quashing me criminal proceedings, observed that when the High Court is called upon to exercise its jurisdiction to quash the proceedings at the stage of the Magistrate taking cognizance of the offence, the High Court is guided by the allegations, whether those allegations, set out in the complaint or the chargesheet, do not in law constitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of court or not. 17. In the case of M.R. Rumugam v. Kittu Alias Krishnamoorthy ( AIR 2009 SC 341 , paras 15 & 16) (supra), the Supreme Court has held and observed in paras 19 and 20 as under:- 19. For the purpose of bringing his case within the purview of the Eighth and the Ninth Exception appended to Section 499 of the Penal Code, it would be necessary for the appellant to prove good faith for the protection of the interests of the person making it or of any other person or for the public good. 20. It is now a well settled principle of law that those who plead exception must prove it. The burden of proof that Ms action was bona fide would, thus, be on the appellant alone. 18. In the case of Sewakram Sobhani v. R.K. Karanjia ( AIR 1981 SC 1514 ) (supra), while dealing with Ninth Exception to Section 499 of the Indian Penal Code, the Supreme Court has held and observed in para 15 as under:- 15. The burden of proof that Ms action was bona fide would, thus, be on the appellant alone. 18. In the case of Sewakram Sobhani v. R.K. Karanjia ( AIR 1981 SC 1514 ) (supra), while dealing with Ninth Exception to Section 499 of the Indian Penal Code, the Supreme Court has held and observed in para 15 as under:- 15. The prayer in the application before the High Court was merely to quash the order dated November 30, 1977 of the learned Chief Judicial Magistrate, Bhopal and not to quash the complaint itself as the High Court has done. But, that was only a technical defect and we do not take serious notice of it in an appeal under Art. 136 of the Constitution where we are very naturally concerned with substantial justice and not with shadow puppetry. The position now is this: The news item in the Blitz under the caption 'MISA Rape in Bhopal Jail' undoubtedly contained serious imputations against the character arid conduct of the complainant. In order to attract the 9th Exception to S. 499 of the Indian Penal Code, the imputations must be shown to have been made (1) in good 631 faith, and (2) for the protection of the person making it or of any other person or for the public good. 'Good Faith' is defined, in a negative fashion, by S. 52 Indian Penal Code as follows: "Nothing is said to be done or believed in 'Good faith' which is done or believed without due care and attention". The insistence is upon the exercise of due care and attention. Recklessness and negligence are ruled out by the very nature of the definition. The standard of care and attention must depend on the circumstances of the individual case, the nature of the imputation, the need and the opportunity for verification, the situation and context in which the imputation was made, the position of the person making the imputation, and a variety of other factors. Good faith, therefore is a matter for evidence. It is a question of fact to be decided on the particular facts and circumstances of each case. So too the question whether an imputation was made for the public good. In fact the 1st Exception of S. 499 Indian Penal Code expressly states "Whether or not it is for the public good is a question of fact". It is a question of fact to be decided on the particular facts and circumstances of each case. So too the question whether an imputation was made for the public good. In fact the 1st Exception of S. 499 Indian Penal Code expressly states "Whether or not it is for the public good is a question of fact". 'Public Good' like 'Good faith' is a matter for evidence and not conjecture. 19. Having considered the rival contentions as well as material placed with the matter, certain admitted facts emerge out, which may be summarized as under:-- (1) Earlier, one complaint, for various offences was registered against the present petitioner. (2) The petitioner was arrested in connection with the aforesaid complaint. (3) The petitioner was in police custodial/on remand. Thereafter, she was enlarged on bail in the said matter. (4) The petitioner herein filed an application to the concerned police for registration of the offence punishable under Section 376 read with Section 120-B of the Indian Penal Code dated 14.07.2012 against the present respondent No. 2 and others. (5) The police did not register the said FIR. (6) Pursuant to non-registration of the FIR, the petitioner herein has moved Special Criminal Application No. 2206 of 2012, which came to be disposed of by the Co-ordinate Bench of this Court vide order dated 08.11.2012 with. observation that the recourse to the remedy as provided by the Cr.P.C. be pursued and the Court of Magistrate on the basis of material which may be collected during the course of investigation may examine where the petitioner may also assist the court with regard to the material placed on record so that the Magistrate can come to a conclusion whether cognizance could be taken or not., (7) Against the aforesaid order, the appellant herein has preferred criminal appeal before the Supreme Court which came to be dismissed with the following observation made in para 12. 12) Having regard to the Scheme of the Code, various provisions as to the course to be adopted arid in the light of the peculiar/special facts and circumstances which we have already noted in the earlier paras, we are satisfied that the High Court was fully justified in directing the appellant to avail the recourse to, the remedy as provided in the Code by filing a complaint before the Magistrate. We are also satisfied that the High Court, in order to safeguard the stand of the appellant, issued certain directions to remedy her grievance against the persons concerned. We confirm the decision of the High Court in the light of the facts relating to the background of the case, particularly, the land dispute, the complaint regarding the same and various subsequent circumstances including her silence about the non-disclosure of the alleged rape before her mother on two occasions and before the female doctors at Civil Hospital as well as Sabarmati Jail and also before the Magistrate. It is further made clear that while affirming the decision of the High Court, it cannot be presumed that we are underestimating the grievance of the appellant herein and it is for the Magistrate concerned to proceed in accordance with the provisions of the Code and arrive at an appropriate conclusion. (8) Thereafter, no such alternative remedy has been exhausted by the present petitioner for alleged offence under Section 376 read with Section 120-B of the Indian Penal Code. (9) The respondent No. 2 herein has lodged a private complaint before the trial Court for the offence under Section 500 of the Indian Penal Code. (10) After due compliance With the procedure under the provisions of the Code of Criminal Procedure, the learned Magistrate has issued summons against the present petitioner for the alleged offence under Section 500 of the Indian Penal Code. The learned Magistrate has also considered the material placed with the private complaint. 20. Now, so far as the technical point raised by respondent No. 2 regarding maintainability of the present petition under Articles 226 and 227 of the Constitution of India is concerned, it is found that the petitioner herein has mentioned in para 1 of the petition that she is a national citizen of India. It appears from the record that she has categorically stated that she is citizen of USA and settled at USA, before police authority. One thing is certainly clear that she is facing criminal trial for the earlier offence. Admittedly, certain fundamental rights are not available to the person who is not a citizen of India. But the provision contained under Article 21 of the Constitution of India is always available to any person whether he or she is citizen of India or not. One thing is certainly clear that she is facing criminal trial for the earlier offence. Admittedly, certain fundamental rights are not available to the person who is not a citizen of India. But the provision contained under Article 21 of the Constitution of India is always available to any person whether he or she is citizen of India or not. Further so far as Articles 226 and 227 of the Constitution of India are concerned, any person who is facing any criminal trial in the Court of law in India can always approach the concerned High Court for redressal of the grievance as may be available under the law. Of course, during the course of arguments, learned advocate for the petitioner has expressed readiness of the petitioner to file necessary affidavit stating that it is not an intentional error describing that she is a citizen of India in para 1 of the petition and she apologize for the same. Considering the statement at the bar and the fact that any person who is facing criminal trial can approach the High Court under Article 226 of the Constitution of India, the preliminary point raised at the instance of respondent No. 2 is not accepted. 21. Section 499 of the Indian Penal Code defines the defamation as a crime and explains its contents through four explanations and provides ten very important exceptions. Section 499 with explanations reads as under:- 499. 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 hereinafter expected, to defame that person. 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 is 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 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 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 loathsome state, or in a state generally considered as disgraceful. 22. From the comprehensive definition of "Defamation" and Section 499, one can derive the following ingredients of the offence of defamation:- 1. Making or publishing any imputation concerned concerning any person; 2. Such imputation must have been made by; (i) Words either spoken or intended to be the read; or (ii) Signs; or (iii) Visible representations; 3. Such imputation must have been made with intention to harm or knowledge or reason to believe that such will harm, the reputation of the person concerned whom it is made. "imputation" means acquisition against the person and emplace of allegation of fact and not accordingly a given of abuse or insult. 4. In order constitution of offence of defamation, it is not necessary to get the injury to the reputation of the complainant must have been actually caused. 23. The ten exceptions to Section 499 provides the situation wherein imputation prima facie may be excused. There are occasions when a man is allowed to speak how to write matters which would be ordinarily defamatory. These exceptions are as under:- 1. Imputation of truth which public good requires to be made or published; 2. Public conduct of public servants; 3. Conduct of any person touching any public question; 4. Publication of reports of proceedings of Courts; 5. Merits of case decided in Court or conduct of witnesses and others concerned; 6. Merits of public performance; 7. Censure passed in good faith by person having lawful authority over another; 8. Accusation preferred in good faith to authorised person; 9. Imputation made in good faith by person for protection of his to other's interests; 10. Merits of case decided in Court or conduct of witnesses and others concerned; 6. Merits of public performance; 7. Censure passed in good faith by person having lawful authority over another; 8. Accusation preferred in good faith to authorised person; 9. Imputation made in good faith by person for protection of his to other's interests; 10. Caution intended for good of person to whom conveyed or for public good; 24. Now, on perusal of the material placed on record, it transpires that the petitioner herein has made allegation of custodial rape against several persons including respondent No. 2. It also appears from the material on record that the complaint which she has lodged before the concerned police station has been discussed in print media. It also appears from the record that various print media has elaborately referred to the allegations made in the complaint. Not only that but it also appears from the material on record that there was the statement of the petitioner that unless and until her complaint is registered as an FIR, she would not make very statement. It also appears from the record that as her complaint was not registered as an FIR, she has moved this Court as well as before the Apex Court. It appears from the record that after perusing the remedy upto the Apex Court, she has not acted further. It also appears from the record that due to such amputation of custodial rape against several persons including respondent No. 2, respondent No. 2 has filed a private complaint before the learned Magistrate, who has after recording the statement of the petitioner and perusing the material placed with the matter, has registered the criminal complaint and directed issuance of the summons under Section 500 of the Indian Penal Code against the present petitioner. The main contention of the petitioner herein is that her case falls under Exceptions 8 and 9 of Section 499 of the Indian Penal Code. This stand of the petitioner requires to be proved by leading necessary evidence during the trial. Now, considering the factual aspects of the present case, the disputed question of facts are involved in the present case and it requires necessary adjudication by the trial Court. This stand of the petitioner requires to be proved by leading necessary evidence during the trial. Now, considering the factual aspects of the present case, the disputed question of facts are involved in the present case and it requires necessary adjudication by the trial Court. Therefore, considering peculiar facts and circumstances of the present case, this Court is of the considered view that this is not a fit case wherein discretionary power under Section 482 of the Criminal Procedure Code or Articles 226 and 227 of the Constitution of India could be exercised. The petitioner has efficacious remedy by way of putting her defence before the trial Court. 25. So far as the reference to the complaint filed by one Mr. Divyang Jha is concerned, it is pertinent to note that those proceedings have no bearing with the present matter. 26. In view of the foregoing reasons, the present petition is devoid of merits and is required to be dismissed. Hence, the present petition stands dismissed. Interim relief, if any, stands vacated forthwith. Rule is discharged. FURTHER ORDER After pronouncement of the aforesaid order, Mr. J.S. Unwala, learned counsel for the applicant requests to stay the operation of this order and to continue interim relief granted earlier for a period of six weeks from today. The same is objected by the otherside. Considering the facts and circumstances of the case, this Court is not inclined to extend the interim relief granted earlier. Accordingly, the request to stay this order and to extend the interim relief is refused.