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2020 DIGILAW 265 (GAU)

Suren Borah v. Ganga Kataky

2020-02-24

AJIT BORTHAKUR

body2020
JUDGMENT Ajit Borthakur, J. - Heard Mr. K. Sarma, learned counsel for the petitioner and Mr. A. Gautam, learned counsel for the respondent. 2. By this petition under Section 482 read with Sections 397/401 Cr.P.C., the petitioner has prayed for quashing of the criminal proceeding in C.R. Case No. 181/2011 under Section 500 of the IPC pending in the Court of learned Sub-Divisional Judicial Magistrate (M), [''SDJM (M)'' for short] at Biswanath Chariali, Assam. 3. The petitioner''s contentions, in brief, are that the respondent/complainant filed a Title Suit being T.S. No. 04/2010 in the Court of learned Munsiff, Biswanath Chariali against him for recovery of a plot of land situated at Gohpur, whereon he is running hotel business, based on claim of purchase of the said plot of land from the original pattadar Late Suren Hazarika. In the said suit, the petitioner tendered his evidence-on-affidavit. The respondent/complainant raised objection to Para No. 9 of his evidence-on-affidavit, where he termed the respondent/complainant to be a dishonest and fraudulent person and also termed that the plaintiff/complainant obtained the documents fraudulently in respect of the suit land misleading Late Suren Hazarika, the original pattadar and therefore, filed the complaint case being C.R. Case No. 181/2011, as stated above. After due enquiry under Sections 200/201 Cr.P.C., the learned SDJM (M), Biswanath Chariali, took cognizance of the offence under Section 500 of the IPC against the petitioner and issued summons to him accordingly. 4. Mr. K. Sarma, learned counsel for the petitioner, submitted that the defendant/petitioner herein is fully protected under Section 499 of the IPC inasmuch as the statement made by him before the lawful authority is yet to be judicially scrutinized by the Court of learned Munsiff at Biswanath Chariali and arrive at a judicial decision whether the petitioner''s aforesaid statement, made on oath, is true or false and as such, till the suit is decided finally, the petitioner cannot be dragged to the Court to face criminal trial for offence of defamation of the plaintiff/respondent complainant herein. Mr. Sarma vehemently submitted that the petitioner is protected under ''Fifth Exception'' of Section 499 of the IPC. 5. Per contra, Mr. Mr. Sarma vehemently submitted that the petitioner is protected under ''Fifth Exception'' of Section 499 of the IPC. 5. Per contra, Mr. A. Gautam, learned counsel for the respondent/complainant submitted that the privilege under the ''Fifth Exception'' of Section 499 of the IPC, as submitted by the learned counsel for the petitioner is not available to the petitioner, who as an witness in the civil proceeding, has deposed on oath expressing disparaging remarks imputing the plaintiff''s character and conduct without any iota of evidence and thereby makes himself exposed to criminal liability under Section 499 read with Section 500 of the IPC. Mr. A. Gautam further submitted that by the aforesaid statement of the petitioner as D.W. 1, he has questioned the integrity of the respondent/complainant and cast aspersions on his reputation. According to Mr. Gautam, the aforesaid statement made by the petitioner on oath was made with reckless disregard for the truth and actuated by malice and personal animosity. 6. I have considered the above arguments advanced by the learned counsel of both sides and perused records. 7. Before going into the controversy, this Court feels it apposite to look into the statement made by the petitioner as D.W. 1 in Para No. 9 of his evidence-on-affidavit in T.S. No. 04 of 2010. The aforesaid para in evidence-on-affidavit reads as extracted hereinbelow- wxyz "That, the plaintiff is a fraudulent and dishonest person. Whereas the plaintiff was able to purchase some plot of land and also able to take possession over the same fraudulently but actually he was not able to purchase and take possession over the said suit land because the said suit land is under my possession since 1991 as yet. zyxw wxyz But there is no similarity between my possessing land and the said Sale Deed Vide Regd. No. 871/2001 of the plaintiff. On the basis of this sale deed, the plaintiff has lost his right to claim over for the suit land. This is true to the best of my knowledge and belief." zyxw 8. The respondent/complainant, termed the above stated statement of the petitioner as totally false and defamatory one and further, that he has no authority to make this type of false statement in evidence. 9. This is true to the best of my knowledge and belief." zyxw 8. The respondent/complainant, termed the above stated statement of the petitioner as totally false and defamatory one and further, that he has no authority to make this type of false statement in evidence. 9. It is pertinent to be mentioned that in order to constitute the offence of defamation punishable under Section 500 of the IPC, the imputation must be made with intention to harm a person. The word ''imputation'' implies making of a baseless allegation, that is, not based on true fact and with a malafide intention or ill will concerning any person in the estimation of others, which is published by words either spoken or in writing or by signs or by visible representations. Section 499 of the IPC defines the term ''defamation'' and it requires three essential ingredients to be fulfilled- (i) making or publishing any imputation concerning any person; (ii) such imputation must have been by words either spoken or intended to be read or by signs or by visible representations and (iii) the said imputation must have been made with the intention to harm or with knowledge or having reason to believe that it will harm the reputation of the person concerned. The definition of ''good faith'' in Section 52 of the IPC does away with the presumption that the accused acted bona-fide until the contrary is proved and the accused has to show that he made the imputation not without due care and circumspection. The burden to prove good faith is on the accused, which can be discharged by leading evidence, which shows preponderance of probability. If the statement so made by the accused is relevant to the issue in the case under inquiry, no prosecution for defamation would lie being absolutely privileged. However, if the statement made by the witness is wholly irrelevant to the matter of such inquiry, uncalled for and introduced by the witness maliciously for his own interest cannot be said to be a privilege under Section 499 of the IPC. The definition of ''defamation'' under Section 499 of the IPC is qualified by ten exceptions enumerated therein, which read as under- wxyz "499. The definition of ''defamation'' under Section 499 of the IPC is qualified by ten exceptions enumerated therein, which read as under- wxyz "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. zyxw wxyz 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. zyxw wxyz Explanation 2.-It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. zyxw wxyz Explanation 3.-An imputation in the form of an alternative or expressed ironically, may amount to defamation. zyxw wxyz Explanation 4.-No imputation is said to harm a person''s reputation, unless that imputation directly or indirectly, zyxw wxyz 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. zyxw wxyz First Exception.-Imputation of truth which public good requires to be made or published.-It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact. zyxw wxyz Second Exception.-Public conduct of public servants.-It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further. zyxw wxyz Second Exception.-Public conduct of public servants.-It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further. zyxw wxyz Third Exception.-Conduct of any person touching any public question.-It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further. zyxw wxyz Fourth Exception.-Publication of reports of proceedings of Courts.-It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings. zyxw wxyz Explanation.-A Justice of the Peace or other officer holding an inquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section. zyxw wxyz Fifth Exception.-Merits of case decided in Court or conduct of witnesses and others concerned.-It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, zyxw wxyz which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further. zyxw wxyz Sixth Exception.-Merits of public performance.-It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further. zyxw wxyz Explanation.-A performance may be substituted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public. zyxw wxyz Seventh Exception.-Censure passed in good faith by person having lawful authority over another.-It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. zyxw wxyz Eighth Exception.-Accusation preferred in good faith to authorised person.-It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation. zyxw wxyz 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. zyxw wxyz Tenth Exception.-Caution intended for good of person to whom conveyed or for 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." zyxw 10. On bare perusal of the complaint petition along with the statement made by the petitioner in his evidence-on-affidavit shows that his aforesaid statement made before the trial Court is in aid of proper adjudication of the issues involved in T.S. No. 04/2010, which is pending trial. The petitioner, as an witness for the defendant, is yet to be cross-examined by the plaintiff/complainant herein to test the veracity of his testimony so made in examinationin-chief. Therefore, the allegations made by the respondent/complainant in the case, at its present stage of trial, squarely falls within the ''Ninth Exception'' of Section 499 of the IPC as a privileged statement relevant to the issues in the aforesaid suit pending adjudication in the Court of law. Considered from this perspective, there ought to have been the complainant''s approach to the aforestated statement of the petitioner to understand the words in the sense in which thereby they actually intended to be conveyed in ordinary parlance and understood in the context of the facts relevant to the issues in the suit. Considered from this perspective, there ought to have been the complainant''s approach to the aforestated statement of the petitioner to understand the words in the sense in which thereby they actually intended to be conveyed in ordinary parlance and understood in the context of the facts relevant to the issues in the suit. What it appears to this Court, is that the petitioner as D.W. 1, actually intended to convey a meaning of lack of fairness and unconscionable illegal dealings by making misrepresentation of the real facts to the purported seller of the land Late Suren Hazarika, which are yet to be adjudicated upon in the suit, which is still pending in the Court. In Indian Oil Corporation Vs. NEPC India Ltd., (2006) 6 SCC 736 , the Apex Court observed that a complaint can be quashed where the allegations made in 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 the case alleged against the accused. Further, a complaint may be quashed where it is a clear abuse of the process of the Court, as when the criminal proceeding is found to have been initiated with mala fides/ malice for wrecking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. 11. Therefore, this Court is of the considered opinion, on reading of the complaint as a whole and without examining the merits of the allegations, that continuation of the criminal complaint proceeding against the petitioner/accused will undoubtedly be an abuse of the process of the Court and detrimental to the ends of justice. This Court is of the further opinion that in that view of the whole matter, the learned SDJM (M), Biswanath Chariali appears to have erroneously and on misconception of law taken cognizance of the offence under Section 500 of the IPC and issued summons to the petitioner, without final adjudication of the contentions made in the statement of the petitioner in the civil proceeding, where he is yet to be cross-examined by the complainant. 12. 12. For the reasons, set forth above, the entire criminal proceeding in C.R. Case No. 181/2011, pending in the Court of learned SDJM (M), Biswanath Chariali is hereby quashed and set aside in exercise of the inherent jurisdiction vested in this Court under Section 482 Cr.P.C. Accordingly, the petition stands allowed. Petition stands disposed off.