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2020 DIGILAW 678 (MP)

Gajanand Agrawal v. Sanjay Gupta

2020-06-09

RAJENDRA KUMAR SRIVASTAVA

body2020
JUDGMENT Rajendra Kumar Srivastava, J. - The present application has been filed by the applicants under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") seeking quashment of complaint and further proceedings pertaining to R.T. No. 12876/2018 pending before the court of Judicial Magistrate First Class, Bhopal in respect of offences punishable under sections 500, 109 and 34 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC"). 2. Facts of the case, in brief, are that a complaint in respect of offences punishable under sections 500, 109 and 34 of the IPC was made by the respondent No.1/complainant before the court of JMFC, Bhopal against six persons, including the present applicants. It was stated by the respondent No.1/complainant in the complaint that he is a kidney specialist/doctor and has been running private nursing home under the name "Aradhana Maternity and Kidney Hospital" for past 10-20 years. It was further stated in complaint that the applicant No.1 (Gajanan Agarwal) is Deputy Manager at Malajkhand Copper Products, Balaghat, applicant No.2 (Ram Datt Agarwal) is the father of the applicant No.1 and applicant No.3 (Krishan Agarwal) is the uncle of applicant No.1 and runs a transport business. It was further stated in the complaint by the respondent No.1/complainant that his cousin, Richa Gupta, was married to the applicant No.1 on 9.12.2012; however, certain issues arose in matrimonial relations between the applicant No.1 and Richa Gupta due to demand of dowry. As such, a complaint was made by Richa Gupta against the applicant No.1 and 2 and one Smt. Sudesh Gupta in respect of offences punishable under section 498-A of the IPC and under section 3/4 of Dowry Prohibition Act, 1961 and case against them was registered against them as Criminal Case No. 12614/2014 before the competent Court. It was further stated by the Complainant that he was a witness in the aforesaid case. Due to this, during pendency of aforesaid criminal case, applicant No.1 addressed two letters dated 25.8.15 and 9.11.15 to the respondent No.1/complainant seeking information in respect of treatment given to Richa Gupta. To this, the respondent No.1/complainant responded that no document in that respect were available; against this, an appeal was filed by the applicant No.1 but documents could not be obtained by him. To this, the respondent No.1/complainant responded that no document in that respect were available; against this, an appeal was filed by the applicant No.1 but documents could not be obtained by him. It was further stated by the respondent No.1/complainant that the applicant No.1 made a complaint dated 29.3.16 to Madhya Pradesh Ayurvigyan Parishad regarding the action of the respondent No.1/complainant in supplying aforesaid information. Further, on 16.5.16, the applicant No.1 again made a complaint to Registrar, Madhya Pradesh Ayurvigyan Parishad regarding non supplying of documents. Purusant to the above, Madhya Pradesh Ayurvigyan Parishad asked to the Respondent No.1/Complaint to supply the relevant documents. Further, the applicant No.1 submitted a complaint dated 5.11.15 to the Deputy Secretary, Medical Council of India regarding misleading advertisement and exorbitant fees. It was further stated by the respondent No.1/complainant that no adverse finding was given against him either by Madhya Pradesh Ayurvigyan Parishad or by the Medical Council of India. In spite of the same and in order to cause financial loss to the respondent No.1/complainant, a news item was published on 4.9.16 at the behest of the applicant No.1 that stern warning has been given to "Aradhana Maternity and Kidney Hospital". Further, the applicant again made a complaint dated 30.12.15 against the respondent No.1/complainant under RTI Act to the Divisional Joint Director, Health Services and also made complaint dated 18.1.16 against one Dr. Madhubala Gupta, who is also a witness in Criminal Case No. 12614/2014. In respect of these actions, stern warnings were given to the applicant No.1 by the learned trial court. In spite of above, the applicant made third complaint against the respondent No.1/complainant to the Registrar, Madhya Pradesh Ayurvigyan Parishad seeking his educational qualifications and details pertaining to treatment of Richa Gupta; a complaint in this respect was made before the court of JMFC, Bhopal. It was further stated by the respondent No.1/complainant that the applicant No.1 also sought information regarding nursing home from Labour Commissioner and also made a false complaint to Assistant Commissioner, Central and Service Tax Department. The applicant No.1 again made a complaint on 25.4.17 before Madhya Pradesh Ayurvigyan Parishad against the respondent No.1/complainant stating that he is practising medical profession on the basis of fake degree and is committing irregularities in operating Aradhana Maternity and Kidney Hospital. The applicant No.1 again made a complaint on 25.4.17 before Madhya Pradesh Ayurvigyan Parishad against the respondent No.1/complainant stating that he is practising medical profession on the basis of fake degree and is committing irregularities in operating Aradhana Maternity and Kidney Hospital. It was further stated by the respondent No.1/complainant that the applicant No.2 and 3, being family members of the applicant No.1, have helped him in committing the said act. On the basis of aforesaid allegations, cognizance was taken against the applicants by the learned JMFC, Bhopal and Criminal Case No. 12614/2014 was instituted against them in respect of offences punishable under section 500 of the IPC. The learned JMFC inquired the matter and found sufficient ground to take cognizance under Section 500 of the IPC against the applicants/accused. 3. On behalf of the applicants, it has been contended that allegations against them are false and baseless. It has further been contended that prima facie, no offence is made out against them in respect of offences punishable under section 500, 109 and 34 of the IPC. It has further been contended that Western Central Railways has terminated services of the respondent No.1/complainant on account of irregularity on 4.2.17 (Annexure A/3) and Bharat Heavy Electrical Limited, Bhopal has also terminated services of the respondent No.1/complainant and Aradhana Maternity and Kidney Hospital (Annexure A/4). It has further been contended that the applicant No.1 made a complaint against the respondent No.1/complainant before Medical Council of M.P. and vide order dated 18.5.17 (Annexure A/6), allegations were proved against him and stern warning was also given. Further, against order dated 18.5.17, an appeal has been filed before the Medical Council of India for enhancement of punishment which is still pending. It has further been contended that Aradhana Maternity and Kidney Hospital was registered for X-ray machine with Atomic Energy Department and it was also not registered with Central Excise and Service Tax Department. Further, news item in Patrika newspaper regarding stern warning given by the Medical Council of M.P. to the respondent No.1/complainant is fair and correct report. It has further been contended that Aradhana Maternity and Kidney Hospital was registered for X-ray machine with Atomic Energy Department and it was also not registered with Central Excise and Service Tax Department. Further, news item in Patrika newspaper regarding stern warning given by the Medical Council of M.P. to the respondent No.1/complainant is fair and correct report. It has further been contended that the respondent No.1/complainant was not registered with Medical Council for D.M. and D.N.B. (Nephro) but was practising the same and Aradhana Hospital was running since 1999 without registration with Department of Health Services, Government of M.P. It has further been contended that making lawful complaints to authorities does not make out an offence and since Patrika Newspaper has not been made a party, complaint is liable to be dismissed. It has further been contended that no complaint was made by the applicant No.2 and 3 and as such, no offence is made out against them. In view of the above, it is prayed that this court may invoke its inherent powers under section 482 to quash proceedings in respect of Criminal Case No. 12614/2014 against the applicants. 4. Per contra, the learned counsel for the State opposed the prayer made by the applicants and contended that the present case is a fit one to invoke inherent powers under section 482 of Cr.P.C. On behalf of the Respondent No.2/Complainant, it has been contended that all complaints against him have been filed after filing of chargesheet in case against the applicants; thereafter, applicant No.1 and his family members started lodging various complaints. It has further been contended that the present application under section 482 of Cr.P.C. has been filed so as to circumvent procedure of trial. It is, therefore, prayed on behalf of the Respondent No.2/Complainant that the present application under section 482 of Cr.P.C. be dismissed. 5. Since the present case involves issue pertaining to quashment of proceedings by invoking inherent powers under section 482 of Cr.P.C, it is pertinent to examine the factors which are to be taken into consideration while deciding such issue. In the landmark decision State of Haryana & Ors. vs. Bhajan Lal & Ors., (1992) Supp1 SCC 335 , it has been held by the Hon'ble Apex Court as under: "102. In the landmark decision State of Haryana & Ors. vs. Bhajan Lal & Ors., (1992) Supp1 SCC 335 , it has been held by the Hon'ble Apex Court 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 and sufficiently channelised and inflexible guidelines or rigid formulae 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. (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. (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." 6. Similarly, in the case of Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 , the Hon'ble Apex has laid down following guidelines in respect of inherent powers under section 482 of Cr.P.C: "27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be: 27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence. 27.9. Even in such cases, the court would not embark upon the critical analysis of the evidence. 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice." 7. Having referred to the above decisions of the Hon'ble Apex Court, it would be necessary to examine if the case of the applicants fall in the guidelines mentioned therein. It would also be relevant here to refer to section 499 of the IPC, which defines the offence of 'defamation' and the same can be read 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. 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 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." 8. In this regard, it is also pertinent to refer to section 202 and 203 of the Cr.P.C., which are reproduced as follows: "202. In this regard, it is also pertinent to refer to section 202 and 203 of the Cr.P.C., which are reproduced as follows: "202. Postponement of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, 132[and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdication,] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant." 203. Dismissal of complaint.-If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing." 9. In Adalat Prasad vs. Rooplal Jindal, (2004) 7 SCC 338 , it has been held by the Hon'ble Apex Court as follows: "12. In Adalat Prasad vs. Rooplal Jindal, (2004) 7 SCC 338 , it has been held by the Hon'ble Apex Court as follows: "12. Section 200 contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present, if any. If on such examination of the complaint and the witnesses, if any, the Magistrate if he does not want to postpone the issuance of process has to dismiss the complaint under Section 203 if he comes to the conclusion that the complaint, the statement of the complainant and the witnesses have not made out sufficient ground for proceeding. Per contra, if he is satisfied that there is no need for further inquiry and the complaint, the evidence adduced at that stage have materials to proceed, he can proceed to issue process under Section 204 of the Code. 13. Section 202 contemplates "postponement of issue of process". It provides that if the Magistrate on receipt of a complaint, if he thinks fit, to postpone the issuance of process against the accused and desires further inquiry into the case either by himself or directs an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding, he may do so. In that process if he thinks it fit he may even take evidence of witnesses on oath, and after such investigation, inquiry and the report of the police if sought for by the Magistrate and if he finds no sufficient ground for proceeding he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under Section 203 of the Code. 14. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew case, (1992) 1 SCC 217 : 1992 SCC (Cri) 88 that before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Sections 200 and 202, and the only stage of dismissal of the complaint arises under Section 203 of the Code at which stage the accused has no role to play, therefore, the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under Section 203 of the Code on a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage." 10. A perusal of the aforesaid decision would indicate that for proceeding in a complaint, there need to be sufficient reason or material based on material available on record. In the present case, there is no sufficient material to proceed against the applicant No.2 and 3. In the present case, a complaint has been made by the respondent No.1/complainant mainly on the basis of actions of the applicant No.1. It is the allegation of the respondent No.1/complainant that the applicant No.1 made several complaints against him as he was one of the witnesses in Criminal Case No. 12614/2014 before the court of JMFC, Bhopal. In addition to complaints, it is the allegation of the respondent No.1/complainant that at the behest of the applicant No.1, a news item was published wherein allegations were made against the respondent No.1/complainant in order to cause him financial loss. In addition to complaints, it is the allegation of the respondent No.1/complainant that at the behest of the applicant No.1, a news item was published wherein allegations were made against the respondent No.1/complainant in order to cause him financial loss. So far as applicant No.2 and 3 are concerned, it is the allegation they abetted or helped the applicant No.1 in his actions which were directed against the respondent No.1/complainant. Evidently, no particular allegations have been made against the applicant No.2 and 3 and they seem to have been implicated on erroneous ground. There is no material which is available on record and which would indicate that the applicant No.2 and 3 have prima facie committed offence under section 500 of the IPC. Needless to say, applicant No.2 and 3 cannot be prosecuted on superficial grounds and as such, continuation of proceedings against them would be an abuse of process of law. Even order dated 11.10.2018 passed by the learned JMFC, Bhopal in RT No. 12876/2018, indicates cognizance has been taken only in respect of section 500 of IPC and not in respect of other provisions, and rightly so. In view of the above, the present application is allowed so far as the applicant No.2 and 3 concerned and proceedings in respect of RT No. 12876/2018 is quashed, so far as the applicant No.2 (Ram Datt Agarwal) and applicant No.2 (Krishan Agarwal) are concerned. 11. So far as the applicant No.1 is concerned, the present application cannot be allowed as under section 482 of Cr.P.C., this court cannot confer upon itself powers of a trial court. The allegations which have been made against the applicant No.1 are factual in nature and the same would require appreciation of evidence, including documents presented in the present application, in accordance with law. The applicant No.1 has relied on a series of documents in order to controvert the allegations which have been made against him by the respondent No.1/complainant. The allegations which have been made against the applicant No.1 are factual in nature and the same would require appreciation of evidence, including documents presented in the present application, in accordance with law. The applicant No.1 has relied on a series of documents in order to controvert the allegations which have been made against him by the respondent No.1/complainant. In view of decisions of the Hon'ble Apex court in State of Orissa vs. Devendra Nath Padhi, (2005) 1 SCC 568 and Rukmini Narvekar v. Vijaya Satardekar, (2008) 14 SCC 1 , only unimpeachable evidence of sterling quality can be looked into while adjudicating a petition under section 482 of Cr.P.C. Those documents and evidence, which require detailed examination by following the tenets of evidence law including issue of relevancy and admissibility, cannot be considered as unimpeachable evidence of sterling quality. The respondent No.1/complainant has made allegations against the applicant No.1 which, if proved, might have tendency to harm his reputation and his profession. The same allegations need to be proved before the trial court. But, prima facie it cannot be said that offence under section 500 of the IPC is not made out against the applicant No.1 and the same would require appreciation of evidence, and the same can only be done in trial. In view of the above, without commenting on the merits of the case, the present application is dismissed so far as the applicant No.1 (Gajanan Agarwal) is concerned. 12. The present petition is accordingly disposed off.