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2022 DIGILAW 242 (JK)

Rashpal Singh v. Kamal Kumar Lakhanpal

2022-05-12

JAVED IQBAL WANI

body2022
JUDGMENT : 1. Through the medium of the instant petition filed under Section 561-A (482) Cr.P.C., the petitioner seeks quashing of complaint No. 19 titled as, "Kamal Kumar Lakhanpal v. Rashpal Singh" along with order dated 21.08.2018 pending before the Court of Railway Magistrate Jammu. 2. The factual matrix of the matter reveals that the impugned complaint came to be filed by the respondent herein, against the petitioner herein contending therein, the complainant to be a high ranking officials in Indian Army wielding high respect in society, amongst relatives and friends as also being the Chairman of Ex-serviceman Cell J&K of National Conference Party. The aforesaid image of the complainant is stated to have been tarnished by the accused/petitioner herein on account of having filed false, frivolous, fictitious complaints and cases. 3. It is being further stated in the complaint that the accused/petitioner herein also got various false news items published against the complainant/respondent herein, without any basis in various newspapers in order to black mail the complainant/respondent herein. 4. It is being stated in the complaint that the complainant/respondent herein has led a honest dedicated life having never indulged into cheating or fraud. It is also stated that Properties had been inherited by the complainant from his father and on account of publication of false news item by the accused/petitioner herein, the complainant/respondent herein got defamed and suffered great mental torture and agony. 5. It is being stated in the complaint that the accused/petitioner herein was served with a legal notice by the complainant/respondent herein calling upon him to tender unconditional apology in this regard. 6. The said acts of omissions and commission of the accused/petitioner herein against the complainant/respondent herein are stated to constitute an offence punishable under Section 500(b) RPC. 7. 5. It is being stated in the complaint that the accused/petitioner herein was served with a legal notice by the complainant/respondent herein calling upon him to tender unconditional apology in this regard. 6. The said acts of omissions and commission of the accused/petitioner herein against the complainant/respondent herein are stated to constitute an offence punishable under Section 500(b) RPC. 7. The impugned complaint along with order dated 21.08.2018 is being challenged in the instant petition inter alia on the grounds that the impugned order passed by the Court below is against the mandate of law having been passed without applying mind and recording any satisfaction and that the impugned order is contended to have been passed wrongly mentioning Section 500(b) RPC without there being any such provision in the RPC and that the allegations leveled in the complaint against the accused/petitioner herein that the news items published against the complainant/respondent herein nowhere indicate that the same were reported by the accused/petitioner herein and that the impugned complaint is abuse of process of law instituted with a motive to harass the accused/petitioner herein but instead has been for pressurizing him to deter from pursuing the case pending investigation in the Vigilance Organisation against the complainant/respondent herein as also before the Special Tribunal Jammu and that the impugned complaint as well as impugned order are misuse of process of law. 8. Heard learned counsel for the parties and perused the record. 9. According to the learned counsel for the petitioner, the petitioner has been a whistle blower against acquiring of three fraudulent allotments of land by the complainant/respondent herein and in this regard complaint had been filed by the petitioner herein against the complainant/respondent herein and against his two brothers before Provincial Rehabilitation Officer, Jammu resulting into cancellation of said allotment by the said officer in terms of order dated 20.02.2017 and that the Vigilance Organization, Jammu conducted an enquiry into said illegal allotment of land in favour of the complainant/respondent herein. 10. According to learned counsel for the petitioner, a complaint also came to be filed by him before the Learned Special Judge Anti-Corruption, Jammu against the respondent herein and his brother for having concealed facts while securing allotment of Evacuee land and the said Court is contended to have directed the Vigilance Organisation to verify the allegation and to proceed in accordance with law. 11. 11. According to the learned counsel for the petitioner, an F.I.R No. 4/2017 got registered against the respondent herein, after verification by Vigilance Organisation besides some revenue officials and the registration of F.I.R was published in a newspaper which is being attributed by the respondent herein to have been got published by the petitioner herein against the respondent herein. 12. According to learned counsel, the petitioner herein in essence pleads to have filed complaints, cases etc., against the respondent herein as a whistle blower in good faith, entitling him to the protection against the commission of the offence of defamation as enshrined in various Exceptions appended to Section 499 RPC (IPC). 13. Per contra, counsel for the respondent would controvert the submissions made by the learned counsel for the petitioner and would contend that the instant petition is not maintainable in the present form and exercise of inherent power is not warranted having regard to the facts and circumstances of the case. 14. True it is that the Exceptions appended to Section 499 RPC (IPC) extend protection to a person from being implicated in an offence of defamation, if the imputation is made in good faith. Law is settled that the burden of proving "good faith" is on the accused when the accused pleads an Exception in an offence of defamation. Thus, burden of proving circumstances bringing a case within an Exception to Section 499 RPC (IPC) is upon the accused. However, whether the imputations are made or conveyed in good faith being factual in nature and character can only be adjudicated upon the trial Court after the parties lead their respective evidence. The said determination cannot be undertaken by this Court in exercise of its inherent jurisdiction. To sum up the question whether the matter falls within an Exception appended to Section 499 RPC (IPC) is not a threshold question. 15. Reverting to the question of validity or otherwise of the impugned order dated 21.08.2018, the same seemingly has been passed by the Court below overlooking the principle of law laid down by the Apex Court in case titled as, "Pepsi Food Ltd. & Anr. v. Special Judicial Magistrate & Ors. reported in (1998) 5 SCC 749 wherein at para 28 following has been laid down:- "28. Summoning of an accused in a criminal case is a serious matter. v. Special Judicial Magistrate & Ors. reported in (1998) 5 SCC 749 wherein at para 28 following has been laid down:- "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. 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". 16. In view of the above, the exercise of inherent power of this Court, insofar, as challenge thrown to the maintainability of the complaint is concerned, same is declined. However, the power is exercised insofar as the challenge thrown to impugned order is concerned as a consequence whereof the impugned order dated 21.08.2018 is set aside and the trial Magistrate is directed to revisit and re-consider the matter afresh and proceed in accordance with law.