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2022 DIGILAW 230 (JK)

Om Raj v. Kajal Devi

2022-05-10

SINDHU SHARMA

body2022
JUDGMENT : 1. The petitioners have invoked the inherent jurisdiction of this Court under section 561-A Cr.P.C. for quashing the complaint filed by respondent No. 1 under section 500 RPC pending before the Ld. 1st Class Magistrate, Thathri, whereby after taking cognizance of the offence process has been issued against them. 2. The case of petitioner No. 1 is that his parents i.e., petitioner Nos. 2 and 3 were looking for a suitable match for the marriage of their son and on the suggestion of some close relatives visited the house of the respondent to consider the matrimonial alliance between petitioner No. 1 and the respondent. The families could not reach any consensus between them, therefore, petitioner Nos. 2 & 3 returned back to their home and started considering other proposals for the marriage of their son. 3. The respondent filed a complaint under section 500 RPC before the Ld. Judicial Magistrate 1st Class, Thathri District Doda, against the petitioners alleging that the petitioner No. 1 was engaged with respondent No. 1 in the year 2015 and the marriage between the parties was fixed to be solemnized on 19.07.2016. The arrangement for marriage were almost complete when the petitioners came to respondent's house and refused to solemnize the marriage with the respondent and in front of the villagers openly leveled allegations that the respondent is a characterless lady. 4. The allegation made in the complaint is that petitioner Nos. 2 and 3 came to the house of the complainant and openly leveled allegations before the villagers that complainant is a characterless lady and they do not want to continue this engagement. They have defamed the complainant before the whole village by stating that she is characterless and having affair with someone else. 5. After the presentation of the complaint, the learned Judicial Magistrate, Thathri recorded the preliminary statement of the complainant and the other witnesses produced by her. On the basis of the averments made in the complaint along with the preliminary statement and the learned Magistrate took cognizance of the offence and issued process against the petitioners along with other accused on 26.05.2016. 6. On the basis of the averments made in the complaint along with the preliminary statement and the learned Magistrate took cognizance of the offence and issued process against the petitioners along with other accused on 26.05.2016. 6. The petitioners have challenged the complaint as well as the cognizance taken and issuance of process against them on the ground that; (i) the same is misconceived and based on distorted facts; (ii) the bare perusal of the complaint impugned reveals that the respondent has nowhere mentioned the date and time of the occurrence of offence and, as such, the same is unsustainable in the eyes of law; (iii) the allegations leveled against petitioner No. 1 are false as he has never visited the house of the respondent and was out for training; and (iv) the allegation regarding engagement between petitioner No. 1 and the respondent is also false as they have never met each other in person and, therefore, no question of engagement arises. The respondent has filed the complaint on a false and concocted story only to pressurize petitioner No. 1 to marry her. 7. The respondent, however, submits that the complaint is only at the initial stage and criminal prosecution, cannot be scuttled or put aside at the initial stage by exercising jurisdiction under section 561-A of J&K Cr.P.C. 8. Heard learned counsel for both the parties. 9. It is well settled that this Court has inherent powers to quash an F.I.R. or a complaint under well settled principles as laid down in "State of Haryana v. Ch. Bhajan Lal & Ors." 1992 AIR SC 604 in which it has been held as under:- "It is well settled that Court can exercise inherent powers to prevent the abuse of process of Court and only if the allegations made out in the complaint do not constitute the offence, it is open for the Court to take cognizance of the same, however, there is no requirement of meticulous analysis of the complaint before the trial to find out whether the complaint will make out". 10. Though this Court, while invoking powers under section 561-A of J&K Cr.P.C. is not to conduct a trial or to appreciate evidence. This power has to be exercised sparingly with circumspection in rarest of the rare cases. 10. Though this Court, while invoking powers under section 561-A of J&K Cr.P.C. is not to conduct a trial or to appreciate evidence. This power has to be exercised sparingly with circumspection in rarest of the rare cases. The Hon'ble Supreme Court in "M/s. Indian Oil Corporation v. M/s. NEPC India Ltd. & Ors." (2006) 6 SCC 736 has held as under:- "........(i) 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. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also 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 malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence". 11. From the bare perusal of the complaint, it is evident that the trial Court had recorded satisfaction before taking the cognizance and issuance of process as prima facie case was made out. 12. The issue which arises for consideration by this Court is that whether the contents of the complaint and the material supporting, it constitute the offence of defamation. From the bare perusal of the complaint, it is evident that the trial Court had recorded satisfaction before taking the cognizance and issuance of process as prima facie case was made out. 12. The issue which arises for consideration by this Court is that whether the contents of the complaint and the material supporting, it constitute the offence of defamation. Defamation as defined in Section 499 of RPC which is applicable to the said code reads as under:- "Section 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 here in after 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 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. 13. The perusal of the above mentioned provision, it is clear that whenever a person by words spoken or signs or visible representation or publishes any imputation concerning any person knowing or intending to harm the reputation of such person except when it falls in the exception clause. The petitioners have alleged to have made certain statements in front of the entire village regarding the character of the respondents. These statements which have been made by the petitioners are only questions of fact and the same can only be determined during the trial of the complaint. The petitioners have alleged to have made certain statements in front of the entire village regarding the character of the respondents. These statements which have been made by the petitioners are only questions of fact and the same can only be determined during the trial of the complaint. None of averment falls under any exception to the section. This apart, the petitioner No. 2 had also signed Ikrarnama which shows that his son had refused to marry the respondent due to some misunderstanding. 14. The petitioners have leveled allegations before the villagers regarding the character of the respondent. These averments made against the petitioners in the complaint do not fall in any of the ten exceptions also. Whether the offence is made out or not is yet to be considered by the trial court. Thus, the learned Trial Court after recording its satisfaction on the basis of the complaint and the preliminary statements had rightly taken cognizance and issued the process against the petitioner. 15. In view of the aforesaid facts and circumstances, this petition is found to be without any merit and the same is dismissed, accordingly, along with connected application(s).