Criminal Application No.1376 of 1998

17th October, 2002

Petitioner Counsel: Mr. S.V. MANOHAR
Respondent Counsel: Mr. M.V. SAMARTH, Mr. H.D. DANGRE, Mrs. B.H. DANGRE

Cases Cited:
Ganesh Nand Vs. Swami Divyanand, 1980 Cri.L.J. 1036 [Para 10,14]
Vijay Vs. Suresh, 2000 ALL MR (Cri) 1199=2000(2) Mh.L.J. 90 [Para 11]
M.P. Narayana Pillai Vs. M.P. Chacko, 1986 Cri.L.J. 2002 [Para 12]
Krishnaswami Vs. C.H. Kanaran, 1971 Ker LT 145 [Para 12]
Raj Kapoor Vs. Narendra Desai, (1974) 15 Guj LR 125 [Para 12]
Sahib Singh Vs. State of U.P., A.I.R. 1965 SC 1451 [Para 13]
John Thomas Vs. Dr. K. Jagdishan, III (2001) CCR 52 (SC) [Para 13]
M/s. Pepsi Foods Ltd. Vs. Special Judicial Magistrate, 1998 ALL MR (Cri) 144 (S.C.)=AIR 1998 SC 128 [Para 15]
State of Harayana Vs. Bhajanlal, 1992 Suppl (1) SCC 335 [Para 15]
M.N. Damani Vs. S.K. Sinha, (2001) 5 SCC 156 [Para 16]

JUDGMENT

JUDGMENT:- By this petition under Article 227 of the Constitution of India u/s 482 of the Criminal Procedure Code, the petitioner has prayed for quashing and setting aside the order dated 21st March, 1999 regarding issue of process by the learned Judicial Magistrate, First Class, Katol in Criminal Case No.34 of 1998. The relevant facts in brief are as under:

2. The petitioner is the chief of Shivsena, a political party and also the Chief Editor of Marathi daily, 'Samana' and two other papers. Respondent No.2 is the original complainant who filed the above mentioned case against the petitioner on 20/3/98 in the court of Judicial Magistrate, First Class, Katol for the alleged offences punishable u/ss 500, 504, 505 and 171 (F) and (G) of the Indian Penal Code. Respondent No.2 claims to be the President of Yuvak Congress Committee, District Nagpur (Rural). In his complaint, respondent No.2 has alleged that on 7/2/1998 the petitioner held a public meeting at Katol for the purpose of canvassing the Shivsena candidate for the Loksabha election. The said meeting was attended by respondent No.2 as well as a large gathering of about 20 thousand people. According to respondent No.2 in the said meeting the petitioner did not speak about the policy of his party or the manifesto of his party nor did he make any political comments but only criticised Smt. Soniya Gandhi, Shri. Sitaram Kesari and Shri. Sharad Pawar in obscene words. Respondent No.2 has reproduced in the complaint the utterances alleged to have been made by the petitioner against these persons. So far as Smt. Soniya Gandhi is concerned, the petitioner is alleged to have made the following statements in his speech.:

(i) uÈe yeF_hs

(ii) uÈe yeF_¢s hex{js heÈ Èe osÑee¢s beJf~s kjlrn.¿ Meaning thereby; "This ill omened woman will ruin the country.

(iii) u71¢s ÈgEoe¢s bs~r jeprb-mfËvÈe cEeg¢ÞW mepje kjl |fls.¿ Meaning thereby; "At the time of 1971 war, Rajiv and Soniya were enjoying their honeymoon".

The petitioner is further alleged to have made a mimicry of the style of speaking of Smt. Soniya Gandhi and demonstrated as to how she would speak, ucsjs hlr c|eÓce iexEer kf y|fl cevls Ùf¿. "My husband used to highly respect Mahatma Gandhi". According to respondent No.2 it is an insult to the whole women class to compare Smt. Soniya Gandhi with a cow and to call her as an ill-omened woman. As regards Shri. Sitaram Kesari, the petitioner is alleged to have made the following statements:

(i) umfËvÈe k|sxir lf cñ kh[s Glezxie Dms k'mjr µ|²elel.¿ Meaning thereby; "Kesari says that he will put off his clothes, if Soniya asks him to do so".

(ii) uÈexve yeF_cEÈs mi~s ¢eixns Ëomls. lr |el |nbls.¿ Meaning thereby; "He sees everything good in this woman. She shakes her hand".

(iii) uk'mjr¢e nifxJ JeF_J Peene.¿ Meaning thereby; "The underwear (Langot) of Kesari became tight".

The complaint does not state what statements were allegedly made by the petitioner in respect of Shri. Sharad Pawar. Respondent No.2 contended in his complaint that on account of said statements publicly uttered by the petitioner in relation to Smt. Soniya Gandhi and Shri. Sitaram Kesari, both these persons as well as the Congressmen have been defamed. According to the respondent No.2 the feelings of the Congressmen have been hurt by the petitioner. He also submitted that he himself being a Congressman, he has a right to file a complaint against the petitioner.

3. Respondent No.2 filed this complaint against the petitioner on 20/3/98. The learned Magistrate after perusing the complaint and documents and after hearing the advocate of the complainant, directed issue of process against the petitioner-accused for the offences punishable U/ss 500, 504, 505, 171 (F) and (G) of the Indian Penal Code. It is this order which is sought to be quashed and set aside by the petitioner.

4. Shri. S.V. Manohar, the learned advocate for the petitioner submitted that the alleged defamation by the petitioner is not of the respondent, but of Smt. Soniya Gandhi and Shri. Sitaram Kesari. He further submitted that respondent No.2 not being "the person aggrieved", within the meaning of Sec.199(1) of Cri.P.C. does not have locus standi to file this complaint. Shri. Manohar further pointed out that so far as the alleged offence u/s 505 of I.P.C. is concerned. there is no requisite sanction obtained by respondent No.2 U/s 196(1) and (1)(a) of Cri.P.C. As regards the alleged offences u/s 171(F) and (G) of I.P.C., Shri. Manohar pointed out that the alleged defamatory statements by the petitioner were not directed against the candidate who was contesting the election nor there is any averment to indicate that the undue influence was used on the voters. Shri. M.V. Samarth, the learned 'A' panel counsel appearing for respondent No.1-State submitted that the question of defamation cannot be decided unless the evidence is led. He further submitted that the question of quashing the order regarding issue of process does not arise at this preliminary stage. Shri. H.D. Dangre, the learned advocate for respondent No.2 adopted the argument of Shri. Samarth.

5. The general rule that any person can set criminal law in motion, is subject to certain exceptions. But the learned Magistrate seems to be oblivious about it. Chapter XIV of Cri.P.C. deals with conditions requisite for initiation of proceedings. Section 196(1) inter-alia states that no court shall take congnizance of any offence punishable under sub section (1) of section 505 and except with the previous sanction of the Central Government or the State Government. Sub section 1-A states that no court shall take cognizance of any offence punishable under sub section (2) or sub section (3) of section 505 of the Indian Penal Code except with the previous sanction of the Central Government or of the State Government or of the District Magistrate. In the complaint filed by respondent No.2 there is no averment indicating that he had obtained such requisite sanction from the concerned authority. Therefore, the learned Magistrate was not competent to take congnizance of the alleged offences under sections 171(F) and 171(G). It may be noted that they are offences relating to elections. Section 171(F) is an offence of undue influence or personation at an election. Section 171(G) is an offence of making a false statement in relation to the personal character or conduct of any candidate.

6. The complaint does not spell out any act of undue influence or personation by the petitioner nor does it refer to any false statement in relation to personal character or conduct of any candidate contesting from the Katol constituency. It is, therefore, obvious that the complaint as it stands does not at all make out any case for the alleged offences u/ss 171(F)(G) of the Indian Penal Code against the petitioner. However, the learned Magistrate issued process against the petitioner even on these two counts without applying his mind to the provisions of sections 171(F) and (G) of the Indian Penal Code.

7. So far as the offence u/s 504 of the Indian Penal Code is concerned, it is intentional insult with intent to provoke breach of the peace. Section 504 states;

"Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both".

The alleged defamatory statements made by the petitioner purported to insult Smt. Soniya Gandhi and Shri. Sitaram Kesari and not respondent No.2. There is nothing in the complaint to indicate that the said defamatory statements were intended or likely to provoke respondent No.2 to break the public peace or commit any other offence. It is obvious that the complaint as it stands does not make out any case for the offence u/s 504 of the Indian Penal Code. The learned Magistrate however did not consider this aspect while issuing process against the petitioner.

8. As regards the offence of defamation, section 499 of the Indian Penal Code defines defamation 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 reasons 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 persons, 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."

A bare perusal of the complaint makes it clear that the alleged defamatory statements attributed to the petitioner do not relate to respondent No.2 nor to the Congress Party to which he belongs. They also do not relate to the members/workers of the Congress Party as a class. They relate to two individuals only namely; Smt. Soniya Gandhi and Shri. Sitaram Kesari, who are the leaders of the Congress Party. The alleged utterances are per-se indecent, vulgar and defamatory to both these persons, but there is nothing in those statements which is directed against respondent No.2, he is not defamed. The persons who could be said to have been defamed are Smt. Soniya Gandhi and Shri. Sitaram Kesari, whom the respondent No.2 holds in high esteem. According to the respondent No.2 the said defamatory statements have insulted the women as a class as well as all the Congressmen.

9. Respondent No.2 claims a right to file a complaint for the said defamation on the ground that he is a Congressman and that the leaders of the Congress Party have been defamed. Two questions are, therefore required to be considered and they are ; whether defamation of the said two leaders can be considered as the defamation of the Congressmen? The second question is whether on account of the alleged defamatory statements, respondent No.2 can be regarded as "some person aggrieved" within the ambit of section 199 (1) of Criminal Procedure Code? In other words, whether respondent No.2 has locus-standi to file a complaint for the alleged defamation of the two leaders whom he respects? Section 199(1) deals with prosecution for defamation and states:

"No court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860), except upon a complaint made by some person aggrieved by the offence.

Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf."

10. The question as to who is the "person aggrieved" for the purpose of Section 199(1) of Cri.P.C. was considered by the Delhi High Court in Ganesh Nand Vs. Swami Divyanand (1980 CRI.L.J. 1036) wherein the facts were that the complainant was disciple of one P who was a spiritual head of the Ashram. Certain imputations were made against P suggesting that he was leading an immoral life. The said complainant filed a complaint u/s 500 of I.P.C. giving details of imputations and contending that they were patently false. It was nowhere stated in the complaint that P had renounced the world nor was there any explanation as to why P or the lady with whom he was alleged to have illicit relations could not file the complaint. The Delhi High Court quashed the complaint holding that one can say about the complainant is that he has a grievance about his Guru being defamed. It was held that the said grievance which the other disciples must also be sharing cannot make him the "aggrieved person" within the meaning of section 199(1) of the Criminal Procedure Code.

11. In Vijay Vs. Suresh (2000(2) Mh.L.J. 90 : [2000 ALL MR (Cri) 1199]) the learned single Judge (Parkar, J.) of this Court considering the same question in relation to the complaint of defamation filed by a person in respect of the alleged defamation of his father who happened to be the sole trustee of a temple. The complaint was filed by the complainant during the life time of his father. The Magistrate issued process against the accused who then challenged that order by filing a revision application in the Sessions Court but the same was dismissed. Thereafter the accused filed a petition under section 482 of Cri.P.C. and Article 227 of the Constitution of India challenging the order of issue of process against him. The learned Judge allowed the petition observing that u/s 199(1), cognizance of the offence punishable under Chapter XXI of the Indian Penal Code which pertains to defamation, cannot be taken except upon a complaint made by some person aggrieved by the offence. The learned single Judge referred to the explanation 1 to 4 to section 499 of I.P.C. as also the provisions of section 199(1) of Cri.P.C. and observed that the aggrieved person could be the member of the family of the deceased against whom the imputation was directed or other relatives and/or a person aggrieved by the imputation concerning a company or an association or collection of persons. The learned single Judge held that the complainant could not be said to be the aggrieved person entitled to file complaint, and therefore, the cognizance taken by the trial court and process issued on his complaint were quashed. The ratio of this decision, is therefore to the effect that the person aggrieved should be either the person defamed or any person covered by any of the explanations in section 499 of the Indian Penal Code.

12. As pointed above, the alleged defamatory statements do not relate to the Congress Party or Congressmen as a class but they relate to two leaders of the said Party. According to respondent No.2 the defamation of the said leaders is the defamation of all the Congressmen and that he being one of the Congressmen, is entitled to file the complaint. Assuming for a moment that the alleged statements attributed to the petitioner are defamatory of the Congressmen as a class, still in view of the following decisions, it cannot be said that the complainant is entitled to file the complaint. In M.P. Narayana Pillai Vs. M.P. Chacko (1986 Cri.L.J. 2002) the facts were that; an article consisting some derogatory statements pertaining to the Syriam Christian community as a whole was published. The statements were to the effect that the Syrian Christian girls working abroad are engaged in prostitution for livelihood. That Syrian Christian ladies are being sent to nunneries on account of the financial incapacity of their parents to give them away in marriage, and that Mother Theresa who is considered to be a living Saint of Christain community is doing missionary work for publicity alone. It was held that u/s 499 explanation II imputations against an association or collection of persons can be defamatory only if such persons are definite and determinable body. Only if there is a definite association or collection of persons capable of being identified it could be said that the imputation against it affects all of them and any member of the class can say that the imputation is against him also personally so as to entitle him to file a complaint for defamation. It was held that the Syrian Christian Community is an unascertainable body of persons, and therefore, no member of that body could say that he was individually defamed on account of the imputations. In the said case reference is made to the decision in Krishnaswami Vs. C.H. Kanaran (1971 Ker LT 145) wherein it was held that the Marxist Community Party as a collection of persons as such was an unascertainable body. Similarly in Raj Kapoor Vs. Narendra Desai (1974) 15 Guj LR 125 there were imputation made against the Bhangi community in general. It was held that the imputation would not amount to defamation because they were not directed against the particular group or members of that community which could be identified. It was observed;

"There was no imputation against the complainant as an individual. If he felt that as a member of the Bhangi community, he was defamed, that would not entitle him to maintain a prosecution for defamation unless the imputation was against him personally".

13. This is, however not so when an association or collection of persons is identified. In Sahib Singh Vs. State of U.P. (A.I.R. 1965 SC 1451) an article was published in a newspaper under the heading; "Ulta Chor Kotwal to Date", which means that; "a thief reprimands a police officer". The said article was in connection with the public prosecutors and assistant public prosecutors of Aligarh. It was held that within the general group of public prosecutors of U.P. there is an identifiable group of prosecuting staff consisting of public prosecutors and assistant public prosecutors at Aligarh and that the said group of persons was covered by Explanation II to Sec.499 and could therefore be subject of defamation. In John Thomas Vs. Dr. K. Jagdishan (III (2001) CCR 52 (SC) a renowned hospital in Chennai was caricatured in a newspaper as the abettor of human kidneys for trafficking purpose. The Director of the hospital complained of defamation but the publisher of the newspaper contended that the libel was not against the Director personally but against the hospital only. The trial court upheld the contention of the publisher but the High Court did not approve the action of the Magistrate and directed the trial to proceed. The Supreme Court confirmed the decision of the High Court observing that it cannot be disputed that a publication containing defamatory imputations as against a company would escape from the purview of the offence of defamation. It was further held that if a company is described as engaging itself in nefarious activity its impact would certainly fall on every director of the company and hence he can legitimately feel the pinch of it. In the instant case, it cannot be said that the Congressmen as a class is an identifiable body. Therefore, even assuming that the alleged statements of the petitioner are defamatory of the Congressmen, respondent No.2 is not entitled to file a complaint for the same. For the aforesaid reasons, I feel that respondent No.2 is not the person aggrieved within the meaning of the term as given in section 199(1) of Cri.P.C. Secondly he is not entitled to file a complaint for defamation against the petitioner for the alleged defamation of Smt. Soniya Gandhi and Shri. Sitaram Kesari.

14. On behalf of the respondents a question about the maintainability of this petition is raised. It is pointed out that the petitioner did not file any revision application in the Sessions Court for setting aside the order of issue of process and has straightaway approached this Court. The question, which therefore arises is as to whether it is permissible to the petitioner to have such a recourse to Sec.482 Cri.P.C. ? In Ganesh Nand Vs. Swami Divyanand (supra), the petitioner after issue of process against him directly filed an application u/s 482 Cri.P.C. for quashing the complaint on the ground that cognizance of the offence was taken on a complaint filed by the person who was not an aggrieved person. The High Court held that such an application was maintainable as cognizance of offence was illegal being against the mandatory provisions of the Criminal Procedure Code. It was held that to ignore such a breach of law would amount to ignoring grounds of public policy which have been enunciated in Sec.191 of the Criminal Procedure Code for the benefit of the accused. It is true that in the instant case the relief claimed by the petitioner is not for quashing of the complaint but for quashing of the order regarding issue of process. Shri. Manohar, however submitted that quashing of the order of issuance of process itself renders the complaint nugatory and that it cannot be prosecuted thereafter. Thus, according to him the effect of quashing the complaint as well as quashing the order of issue of process is one and the same.

15. Shri. Manohar further relied upon the decision in M/s. Pepsi Foods Ltd. Vs. Special Judicial Magistrate (AIR 1998 SUPREME COURT 128) : [1998 ALL MR (Cri) 144 (S.C.)] in which the Supreme Court examined the powers of the High Court under Articles 226 and 227 of the Constitution and section 482 Cri.P.C. and it was held that the High Court can exercise its power of judicial review in criminal matters. The Supreme Court made reference to its earlier decision in State of Harayana Vs. Bhajanlal (1992 Suppl (1) SCC 335) wherein it was observed that the extraordinary power under Art.226 of the Constitution and also the inherent powers u/s 482 of Cri.P.C. could be exercised by the High Court to prevent abuse of process of any Court or otherwise to secure the ends of justice. In that case certain guidelines were laid down for exercising jurisdiction under these provisions with a note that the guidelines could not be inflexible or laying rigid formula to be followed by the Courts. It was held that exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. One of such guidelines is 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. It was held by the Supreme Court that nomenclature under which the petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. It is true that in the instant case the petitioner could have challenged the order of issue of process by filing a revision application in the Sessions court u/s 397 of Cri.P.C., but non filing of such an application does not debar him from seeking a recourse u/s 482 Cri.P.C. nor does it restrict the Court from exercising its inherent powers when the facts of the case warrant the same.

16. In M.N. Damani Vs. S.K. Sinha (2001) 5 Supreme Court Cases 156 it was held that;

"For deciding whether the criminal proceedings should be allowed to continue or the same should be quashed, two aspects are to be satisfied: (1) whether the uncontroverted allegations, as made in the complaint, prima facie establish the offence, and (2) whether it is expedient and in the interest of justice to permit a prosecution to continue.

I think that in the instant case both these tests have been satisfied, and therefore, there should be no reason to hesitate to exercise the inherent powers u/s 482 Cri.P.C. merely on the ground that alternative remedy of revision u/s 397 was not availed of by the petitioner. In the facts and circumstances of the case, I am not inclined to take a rigid view of the matter and in my opinion this is a fit case wherein exercise of the inherent powers can very well be made to prevent the abuse of process of law as also to secure the ends of justice.

17. In the result, the petition is allowed. The order dated 21/3/1998 passed by the Judicial Magistrate, First Class, Katol in Criminal Case No.34/1998 against the petitioner is hereby quashed and set aside. The petitioner is discharged.

Petition allowed.