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2019 DIGILAW 642 (ALL)

Lokesh Sharma v. State of U. P.

2019-03-08

SAUMITRA DAYAL SINGH

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JUDGMENT : Saumitra Dayal Singh, J. 1. Both 482 Applications have been filed to quash Complaint Case No. 1254 of 2010, Narendra Kumar Saraswat vs. Anand Prakash and Others, complaining of offence under Section 500 IPC, P.S. Nawabganj, District Kanpur Nagar, which is stated to be pending in the Court of Additional Chief Metropolitan Magistrate (IX), Kanpur Nagar and the order dated 26.3.2011 passed therein. 2. The applicants in 482 Application No. 26918 of 2011, are Anand Prakash, Smt. Meeta Sharma, Smt. Shyam Lata Sharma, Kartik Sharma, Gyan Prakash Sharma and Gaurav Sharma. The applicant in 482 Application No. 27505 of 2012 is Lokesh Sharma (all applicants in the two applications are hereinafter collectively referred to as the applicants-accused). Smt. Meeta Sharma-applicant no. 2 in 482 Application No. 26918 of 2011 was married to the son of opposite party no. 2, namely Puneet Saraswat. The other applicants in both 482 applications are the family members and relatives of the said Smt. Meeta Sharma. The complaint filed by Opposite Party No. 2 - Narendra Kumar Saraswat (hereinafter referred to as the ‘complainant’) discloses that his son Puneet Saraswat was married to one of the applicants, Smt. Meeta Sharma on 15.02.2009. That matrimonial alliance had arisen upon the parties having met through a matrimonial website. 3. The complaint then discloses, acrimony had arisen between the parties, allegedly on account of deceitful conduct of the said Smt. Meeta Sharma. 4. Then, it has been alleged that the applicants-accused persons, who were residents of Delhi, called the complainant and his son to Delhi to settle their differences, amicably. Though no date, other particulars of occurrence etc. have been disclosed, the complaint further alleges, Anand Prakash Sharma exercised undue pressure on the complainant but, he did not succumb to the same. The said Anand Prakash Sharma then assaulted the complainant's son and his wife and thus injured them. Further, it was alleged, a false police case was lodged against the complainant and his family members and they were unnecessarily got arrested by the police. In the assault thus caused, a fracture injury was also claimed to have been suffered by the complaint's son Puneet Saraswat. 5. Further, it was alleged, a false police case was lodged against the complainant and his family members and they were unnecessarily got arrested by the police. In the assault thus caused, a fracture injury was also claimed to have been suffered by the complaint's son Puneet Saraswat. 5. Again, without disclosing any details as to the date and time of the occurrence, it was alleged that the complainant and his family members were handcuffed by the police authorities and that they were photographed at the instance of the applicant-accused Anand Prakash Sharma. 6. Proceeding further, the complaint alleges that the photographs of the complainant's son Puneet Saraswat (in handcuffs), were communicated by "Abhiyuktgan" to the superior officers of Puneet Saraswat, whereupon the latter was transferred from Delhi to Kolkata. The complaint also alleges, such photographs were also distributed in the locality/ Mohallay, where the complainant resides and that such photographs were distributed amongst relatives of the complainant, by the accused persons Gaurav Sharma and Baby Sharma. 7. Also, it was alleged, the accused person Smt. Meeta Sharma made derogatory and obscene comments to an unnamed reporter of "India TV" alleging illicit relationship between the complainant's son Puneet Saraswat and his mother. However, it was further stated that such report was never broadcast, though, audio recording of the same was claimed to be available with the complainant. Another allegation has been made in the complaint of the accused person Anand Prakash Sharma alongwith Lokesh Sharma and Gyan Prakash Sharma, having colluded with another unnamed news reporter of a Daily "Sandhya Gangaputra Times" published from Haryana, who sought a telephonic interview with the complainant, wherein he put various obscene and derogatory questions to the complainant. Resulting news items were also alleged to have been published. However, the date and other details of the questions put to the complainant and the publication have not been disclosed in the complaint. 8. With respect to the aforesaid publication, it has been further alleged that copies of the same were pasted near the residence of the complainant, as also copies of the same were alleged to have been dispatched by post by the accused persons Sudhir Kumar, Ajai Kumar and others. Again no date of such transaction or other details were disclosed. 9. With respect to the aforesaid publication, it has been further alleged that copies of the same were pasted near the residence of the complainant, as also copies of the same were alleged to have been dispatched by post by the accused persons Sudhir Kumar, Ajai Kumar and others. Again no date of such transaction or other details were disclosed. 9. It was then alleged that a letter written on the letter pad of Haryana Brahman Samaj Samiti was got distributed by the accused persons alongwith the daily newspaper containing an appeal made by the accused persons. Neither the details nor the contents of the said letter were disclosed in the complaint. 10. Last, it has been alleged that the accused person Meeta Sharma wrote a letter to the S.H.O. Kanpur, informing about the arrest of the complainant's wife and his son. 11. The learned Magistrate recorded statements under Section 200 Cr.P.C. of the complainant Narendra Kumar Saraswat. Relevant to the allegation of defamation, it has been stated that the accused persons had, in collusion with the police, got arrested the complainant and his family members and also got them photographed at that moment. Those photographs were circulated in the office of the complainant's son and also dispatched by post at his residence. It was also stated that a statement had been given by the accused person Meeta Sharma to a reporter of India TV, wherein she made false allegations of illicit relationship between the complainant's wife and his son. It was also stated that the reporter refused to accept that allegation, where after the accused persons Anand Prakash Sharma, Gyan Prakash Sharma and Lokesh Sharma shared the phone number of the complainant with an unnamed reporter of the daily Haryana "Sandhya Gangaputra Times" whereupon that reporter called the complainant and spoke to him using improper words. A publication in the daily Sandhya Gangaputra Times was also stated to have been published, which was then disclosed to have been pasted outside the house of the complainant and also distributed and dispatched the complainant, by post. 12. It is on such allegations made in the complaint and the statement recorded under Section 200 Cr.P.C. that the learned Magistrate has summoned the applicants as accused persons by his order dated 26.03.2011. 12. It is on such allegations made in the complaint and the statement recorded under Section 200 Cr.P.C. that the learned Magistrate has summoned the applicants as accused persons by his order dated 26.03.2011. After making a recital of the fact allegation made in the complaint and the statement recorded under Section 200 Cr.P.C. the learned Magistrate has recorded his prima facie satisfaction that the accused persons are liable to be proceeded against, under Section 500 IPC. 13. Learned counsel for the applicants, submits that the case has a chequered history of spoilt and acrimonious relationship between the son of the complainant Puneet Saraswat and one of the accused persons Smt. Meeta Sharma. Reference has been made to the demand of dowry made by the complainant and of assault having been committed on 04.04.2009 resulting in a police complaint lodged on 05.04.2009, assault committed by Puneet Saraswat, his friend Vikram on 21.07.2009 resulting in FIR being lodged in Case Crime No. 313 of 2009 under Sections 323, 325, 354, 452/34 IPC, threats held out by the said Puneet Saraswat, resulting in another complaint lodged on 28.08.2009 by his wife, accused person Smt. Meeta Sharma at Police Station Mandawali, New Delhi; another complaint with respect to separate incident lodged on 08.09.2009, at Police Station R.K. Puram, New Delhi, Another FIR lodged on 26.10.2009 in Case Crime No. 153 of 2009 under Sections 498A, 406/34 IPC and FIR lodged on 11.05.2010 in Case Crime No. 161 of 2010 under Section 500 IPC and Sections 66(1) and 66(2) of Information Technology Act, 2000. At the same time, certain complaints and FIRs were also admitted to have been lodged by the applicants-accused persons against the complainant and his family members. 14. In such facts, learned counsel for the applicants submits, the allegations made against the applicants-accused persons in the complaint are wholly vague and devoid of material particulars. Neither the date and time nor the place of occurrence has been disclosed in the complaint nor in the statement recorded under Section 200 Cr.P.C. The only date disclosed is 09.01.2010, being the date, when, it is alleged, some of the accused persons had pasted newspaper reports outside the house of the complainant and on the public streets. 15. Then, it is submitted, wild and frivolous allegations had been made against numerous family members of Smt. Meeta Sharma. 15. Then, it is submitted, wild and frivolous allegations had been made against numerous family members of Smt. Meeta Sharma. Thus, it has been submitted, Anand Prakash Sharma (father), Smt. Shyam Lata Sharma (mother), Karthik Sharma (brother), Gyan Prakash Sharma (paternal uncle), Gaurav Sharma (son of Gyan Prakash Sharma) and also Lokesh Sharma (Mausa), have been implicated only to cause deep harassment and/or to seek revenge. 16. Then, in absence of any specific allegation of defamation made in the complaint, learned counsel for the applicants would submit, the learned Magistrate has failed to make the necessary inquiries and has cursorily summoned the applicants-accused persons by the impugned order, which is wholly cryptic, to say the least. Perusal of the order does not disclose any application of mind or formation of any reason to believe to proceed against the accused persons. In that regard reliance has also been placed on the Exceptions to Section 499 IPC. In absence of vital details and material particulars being disclosed in the complaint, the ingredients of the offence were clearly not made out and, therefore, the summoning order was invalid. 17. Learned counsel for the applicants has further relied on the principle laid down by the Supreme Court in Sunil Bharti Mittal vs. Central Bureau of Investigation, (2015) 4 SCC 609 , wherein, referring to the earlier decision of the Supreme Court in M.N. Ojha and Others vs. Alok Kumar Srivastava and Another, (2009) 9 SCC 682 , the Supreme Court opined that if the learned Magistrate has applied his mind to the facts and circumstances and sequence of events as well as documents filed with the complaint, surely, he would have dismissed that complaint, as it was only a counterblast to the First Information Report lodged against the complainant. Referring to the judgment in Subramanian Swamy vs. Union of India, Ministry of Law and Others, (2016) 7 SCC 221 , it has been submitted, for the offence of defamation to arise, the imputation made must be with the intention of causing harm or having reason to believe that such imputation will harm the reputation of the person about whom it is made. It must be such as 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. Insofar as, the complaint allegations pertain to legal proceedings initiated by the accused-persons against the complainant and his family members and its report published by third parties, in any case, the ingredients of the offence alleged were not made out. 18. Reference has been made to a decision of the Supreme Court in National Bank of Oman vs. Barakara Abdul Aziz and Another, (2013) 2 SCC 488 , to submit that in view of the fact that the applicants-accused persons were residing at Delhi, i.e. outside the territorial jurisdiction of the learned Magistrate at Kanpur, the requirement of Section 202 Cr.P.C. should have been strictly met. The falsehood of the allegations made in the complaint ought to have been deeply examined before summoning the applicants-accused persons. 19. Responding to the above, learned counsel for the complainant has submitted, at this stage, it is wholly premature on part of the applicants-accused persons to claim applicability of any of the exceptions to the statutory explanations attached to Section 499 of the IPC. That would remain a matter of evidence and adequate opportunity would be available to the accused persons in the trial, that is yet to take place. Insofar the acts of defamation was clearly and substantially alleged in the complaint and supported in the statement of the complainant, at this stage, no further burden lay on the complainant. The exact details of the allegations would remain a matter to be examined in the trial proceedings. 20. Responding to the above, learned counsel for the complainant has submitted, it is intention of the accused and not the nature of the transaction that would be decisive as to the commission of the offence, or otherwise. The exact details of the allegations would remain a matter to be examined in the trial proceedings. 20. Responding to the above, learned counsel for the complainant has submitted, it is intention of the accused and not the nature of the transaction that would be decisive as to the commission of the offence, or otherwise. Then, relying on the decision of the Supreme Court in Balraj Khanna and Others vs. Moti Ram, AIR 1971 SC 1389 , it has been submitted, to establish the ingredients of offence under Section 499 IPC, the exact words constituting that offence need not be stated meticulously in the complaint itself. Also, the exceptions to Section 499 IPC, would remain a matter to be examined during trial only. Then, as to the scope of the present proceedings, reliance has been placed on two decisions of the Supreme Court in M.N. Damani vs. S.K. Sinha and Others, (2001) 5 SCC 156 and Hamida vs. Rashid alias Rasheed and Others, (2008) 1 SCC 474 , to submit that the powers should be exercised by the Court sparingly and with circumspection. 21. Having heard learned counsel for the parties and having perused the impugned complaint made against the applicants-accused persons as also the statement recorded under Section 200 Cr.P.C. it is first seen that the present criminal complaint has arisen with a long background of disputes between the parties. As noted above, the parties were on acrimonious terms for some times arising from a bad matrimonial relationship, wherein the applicants-accused persons had first lodged numerous FIRs and complaints against the complainant and his family members. The complainant had also reported at least two criminal occurrences against the applicants-accused persons. 22. It is also beyond doubt that the acrimony between the parties had arisen purely on account of bad or spoilt matrimonial relationship between the son of the complainant Puneet Saraswat and one of the applicants-accused persons Smt. Meeta Sharma. 23. That being the background in which the complaint had arisen, perusal of the complaint, though does allege numerous incidents, however, almost by way of a consistent pattern and repetitive effort, the complainant failed to disclose either the date or the time or other material particulars of any of the occurrences. Thus, he neither disclosed the date and time nor the place of occurrence, when the accused persons called him and his family members and assaulted them. Thus, he neither disclosed the date and time nor the place of occurrence, when the accused persons called him and his family members and assaulted them. He also did not disclose other details with respect to the police having handcuffed the complainant and his family members at Delhi, at the instance of the accused persons or the date, time and place of the photographs that had been taken allegedly at the instance of one of the accused persons. Again no details have been disclosed, as to the date or the mode when/how such photographs were sent to the higher officers of Puneet Saraswat, resulting in his transfer from Delhi to Kolkata. In fact, even the date of transfer has not been disclosed in the complaint. As to the alleged defamatory statement made to the news reporter, neither the names of such news reporters has been disclosed nor the date has been disclosed when such transaction may have taken place nor have the said news reporters been joined as accused parties, in the complaint. Even as to the photographs that are claimed to have been dispatched to the residence of the complainant and his family members/relatives etc., no details of date or mode of dispatch or its details have been disclosed. Even as to the publication made in the newspaper or the letter written by a third party and it's circulation, no details of the same, either as to time or place or the contents have been disclosed. 24. While, these material particulars are found completely lacking in vital details, the complainant has, at the same time, chosen to name the accused persons either generally (with respect to a few transaction) and specifically with respect to the others. Here, it has to be noted, the applicants are all relatives and family members of Smt. Meeta Sharma. While the complainant has, for reasons best known to him, chosen not to make disclosure of material particulars as to the transaction itself, he has chosen to name the family members of Smt. Meeta Sharma, specifically. 25. Then, coming to the allegations itself, the fact that the complainant and his family members may have been arrested by the police upon a complaint made by one or more of the accused persons, may not itself constitute ingredient of offence of defamation against the applicants-accused persons. 25. Then, coming to the allegations itself, the fact that the complainant and his family members may have been arrested by the police upon a complaint made by one or more of the accused persons, may not itself constitute ingredient of offence of defamation against the applicants-accused persons. The arrest not being alleged to be made by them and it having not been found or held to be illegal, the same may never be treated to be an act of defamation. Even as to the transaction of the complainant being handcuffed, the same being an act committed by the police authorities, may never be attributed as an intentional act on part of any of the accused persons to defame the complainant. 26. Similarly, publication of news of such arrest or any incident made by independent newspapers also cannot, by itself, constitute an act of defamation, especially, in absence of the news reporter being named or made an accused party, though the complainant alleged collusion. Admittedly, none of the newspapers or publications is claimed to have been made by any of the accused persons. Even if it is accepted that the accused persons had spoken ill about the complainant to certain unnamed news reporters, it is too far-fetched, remote and at present unfounded, in the entirety of the facts and circumstances and the background facts noted above, to assume that such unnamed news reporter, if at all, acted in collusion with the accused persons with the intent to defame or that such act can be described as one carried out intentionally to defame the complainant. 27. In absence of any date and other details of the contents of the publication being disclosed in the complaint as may have constituted ingredients of defamation, if such publications were found pasted outside the house of the complainant or in its vicinity, it would again be a very doubtful and premature trial to arise. 28. No details as were lacking in the complaint have been filled up or brought on record by means of the statement of the complainant. It is equally bald and in fact, a mere repetition of the complaint. 29. In Balraj Khanna and Others vs. Moti Ram (supra), the facts were entirely different where, though the exact statements attributed to each of the accused persons individually, had not been spelt out in the complaint, however, the complainant had relied on Ex. It is equally bald and in fact, a mere repetition of the complaint. 29. In Balraj Khanna and Others vs. Moti Ram (supra), the facts were entirely different where, though the exact statements attributed to each of the accused persons individually, had not been spelt out in the complaint, however, the complainant had relied on Ex. PW-3/B containing six specific acts and utterances attributed to all the accused persons collectively. Before the Magistrate, six witnesses had been examined under Section 202 Cr.P.C. and it was thereafter that the issue had arisen whether, in the case of oral defamation, it was mandatory for the complainant to meticulously state the substance of spoken words that constitute the offence of defamation. In the instant case, the facts are entirely different. The complainant has failed to give the minimum details of the transaction giving rise to the allegation of defamation. Neither the date nor the time nor the contents have been disclosed in any manner. Thus, the complainant has failed to bring before the Magistrate even the minimum disclosure required to establish the ingredients of offence of defamation alleged. If the rule laid down by the Supreme Court in Balraj Khanna and Others vs. Moti Ram (supra) were to be extended and thus applied to the facts of the present case, it would imply that the complainant, at this stage, would not be burdened to even assert the existence of ingredients of the offence. Unless the ingredients are disclosed to the Magistrate, it is difficult to conclude that the accused persons could have been summoned. While in the case of Balraj Khanna and Others vs. Moti Ram (supra), existence of those ingredients had been established by production of Ex. PW-3/B and testimony of six witnesses, in the instant case, neither the newspaper nor the letter nor any other material has been placed before the Magistrate nor does the statement of the complainant satisfy that requirement. 30. Then, the background facts of the dispute having arisen out of a bad matrimonial relationship and history of criminal cases lodged by both the parties against each other, also cannot be lost sight of. 30. Then, the background facts of the dispute having arisen out of a bad matrimonial relationship and history of criminal cases lodged by both the parties against each other, also cannot be lost sight of. At the present juncture, there does not appear to exist minimum material necessary to establish the existence of ingredients of offence alleged and even otherwise the prosecution appears to have been initiated by way of abuse of the process of the Court, solely in the context of bad matrimonial relationship existing between Smt. Meeta Sharma and Shri Puneet Saraswat. 31. Admittedly, the accused persons reside at Delhi while the complainant resides at Kanpur where the complaint was instituted. In view of that fact, the enquiry that was necessary under Section 202 Cr.P.C. ought to have been taken with more seriousness of purpose. The mere complaint accompanied with a statement under Section 200 Cr.P.C. which, in effect, is a mere reiteration of the complaint without substantiation of any allegation, did not satisfy the test of the enquiry required to be made. 32. Consequently, the complaint lodged and the summoning order dated 26.03.2011 passed by the Additional Chief Metropolitan Magistrate (IX), Kanpur Nagar/Metropolitan Magistrate, Kanpur Nagar in Complaint Case No. 1254 of 2010, are misconceived and accordingly quashed. 33. Present 482 Applications stand allowed.