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2021 DIGILAW 604 (JK)

Sudershan Gupta v. Shiv Kumar

2021-11-18

RAJNESH OSWAL

body2021
JUDGMENT : 1. The present petition has been filed by the petitioners for quashing the order dated 24.05.2018 passed by the learned Excise Mobile Magistrate, Jammu (hereinafter to be referred as the trial court) in complaint filed by the respondent, titled, "Shiv Kumar vs. Smt. Sudershan Gupta and others" under section 500 RPC by virtue of which process has been issued against the petitioners and also the criminal proceedings arising out of aforesaid complaint pending before the trial court. 2. The petitioners have impugned the aforesaid proceedings on the ground that no offence under section 500 RPC is made out and that the impugned order as well as criminal proceedings initiated thereto are required to be closed on the ground that the alleged defamatory statement made in the suit before the court of learned 2nd Additional Sessions Judge, Jammu was made by the husband of petitioner No. 1 and father of petitioner No. 2, namely, Sh. Natha Ram and not by the petitioners as the petitioners had become party after the demise of said Natha Ram and further that the complaint filed by the respondent deserves to be quashed as the same has been filed by the respondent with mala fide. 3. Mr. Jamrodh Singh, learned counsel for the petitioner has vehemently argued that the complaint is not maintainable as the alleged defamatory statement was made by the predecessor in interest of the petitioners and the petitioners have simply stepped into his shoes for the purpose of continuing the suit filed by Natha Ram and further that the complaint has been filed with mala fide. 4. Per contra, Mr. Amarvir Singh Manhas, learned counsel for the respondent has vehemently argued that the petitioners continued with the defamatory statement as made in the plaint by their predecessor in interest as such, they are liable to be prosecuted and punished for commission of offence under section 500 RPC. 5. Heard and perused the record. 6. 4. Per contra, Mr. Amarvir Singh Manhas, learned counsel for the respondent has vehemently argued that the petitioners continued with the defamatory statement as made in the plaint by their predecessor in interest as such, they are liable to be prosecuted and punished for commission of offence under section 500 RPC. 5. Heard and perused the record. 6. Brief facts for the disposal of the present petition are that a suit for possession of the land as well as for permanent prohibitory injunction was filed by one Natha Ram against the respondent and in paras 5 and 6 of the said suit, it was stated by said Natha Ram predecessor in interest of the petitioners that because of the hospitalization of the plaintiff, the defendant (respondent) has taken the benefit of the absence of the plaintiff (Natha Ram) and trespassed upon the land of the plaintiff without any right whatsoever. Para Nos. 5 and 6 of the plaint are reproduced as under:- "5. That because of the hospitalization of the plaintiff, the defendant has taken the benefit of the absence of the plaintiff and trespassed upon the land of the plaintiff without any right whatsoever. The defendant is a known land grabber and has forcibly and illegally trespassed upon and occupied the land of the plaintiff". "6. That the defendant is also a Government employee working in the Forest Department and has accumulated wealth beyond his known source of income and has hired goons to perpetuate the illegality by committing trespass over the land of the plaintiff ". 7. The said suit was filed on 12.08.2015 and the learned 2nd Additional District Judge, Jammu vide its judgment dated 30.12.2017 dismissed the said suit on the issue of maintainability without trying the same on merits. 8. Further, it is evident from the record that the Natha Ram, predecessor in interest of the petitioners passed away on 02.12.2015 and the petitioners were brought on record as legal heirs of the deceased Natha Ram (plaintiff) to continue the suit filed by the predecessor in interest of the petitioners. After the dismissal of the suit, the respondent filed the complaint on 16.03.2018 against the petitioners regarding the alleged defamatory averments made in the plaint by the predecessor in interest-plaintiff and the learned trial court vide order dated 24.05.2018 issued the process against the petitioners. After the dismissal of the suit, the respondent filed the complaint on 16.03.2018 against the petitioners regarding the alleged defamatory averments made in the plaint by the predecessor in interest-plaintiff and the learned trial court vide order dated 24.05.2018 issued the process against the petitioners. A perusal of the order dated 24.05.2018 reveals that the learned trial court has simply observed that there is sufficient ground to proceed in the matter for commission of offence under section 500 RPC as some derogatory remarks were made against the complainant. The learned Magistrate has nowhere observed in the order that the alleged defamatory remarks were made by the petitioners or their predecessor in interest. It clearly reflects the non application of mind on the part of the learned trial court. The learned Magistrate, while issuing the process, is expected to apply its mind on the allegations leveled in the complaint against the accused and if the Magistrate is of the opinion that there are allegations against the accused those require further proceedings, then only the process is required to be issued. In the instant case, there is no satisfaction recorded by the learned Magistrate that the petitioners have committed any offence. 9. The Learned Magistrate in the instant case has acted in a mechanical manner while issuing process contrary to the mandate of law laid down in Pepsi Foods Ltd. v. Special Judicial Magistrate, reported in (1998) 5 SCC 749 , where Apex Court has held as under:- 28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. 10. The allegations in the complaint are that the petitioners made the above defamatory statements in their plaint and persisted with the same (Para-9 of the complaint). It needs to be noted that the averments made in the plaint were not made by the petitioners but their predecessor in interest. It is only when the accused by words either spoken or intended to be read or by signs or by visible representation, makes or publishes any imputation concerning any person intending to harm or knowing or having reason to believe the such imputation will harm the reputation of such person, then the said person can be said to have defamed other(s). 11. So far as the instant case complaint is concerned, the averments were made in the plaint by the predecessor in interest of the petitioners and during his life time i.e. till 02.12.2015, the respondent never filed any complaint for commission of offence under section 500 RPC against him and it was only when the petitioners were arrayed as legal heirs of the deceased plaintiff and the suit was dismissed, the respondent filed the impugned complaint. 12. It is not the case of the respondent that the petitioners after the demise of their predecessor in interest repeated the said allegations against the respondent in any subsequent pleadings and this Court is of the considered view that the legal representatives of deceased party to a suit cannot be prosecuted under section 500 RPC with regard to the averments made in the plaint by the deceased party as it is only the person who has made or published the alleged defamatory statement, can be held liable for commission of offence under section 500 RPC. Merely continuing the suit filed by their predecessor-in-interest containing alleged defamatory statement, would not render the successor-in-interest, in the instant case the petitioners, liable for prosecution under sec. 500 RPC. 13. Merely continuing the suit filed by their predecessor-in-interest containing alleged defamatory statement, would not render the successor-in-interest, in the instant case the petitioners, liable for prosecution under sec. 500 RPC. 13. Viewed thus, this Court is of the considered opinion that not only the order impugned is not sustainable in the eyes of law but also the criminal proceedings initiated by the respondent against the petitioners titled "Shiv Kumar VS. Sudershan Gupta & Ors. pending before learned Excise Mobile Magistrate, Jammu, are misconceived, as such, the same are quashed.