Officer-in-charge of Howrah Thana lodged a detailed FIR against the Advocates of Howrah Court

24th April 2019 – In her complaint, Smt Rajarshi Dutta(OC Howrah Thana), inter alia complained that advocates of Howrah District Court illegally assembled in front of HMC gate, blocked the road and assaulted DCP Headquarter. The violent advocates took with them one Debasish Panja, an employee of HMC, inside the Court building and to rescue him the police contingent entered into the Court premises. They also fired two round of teargas with light lathi-charge to rescue the HMC employe and to save the Government properties.

Read the whole FIR :

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Govind Singh Vs. State of Chhattisgarh

SUPREME COURT OF INDIA JUDGMENTS

Murder-The entire occurrence was in a spur of the moment. There was a quarrel between the father and daughter as to where the bulb is to be put on. In the sudden quarrel and in the spur of the moment, the appellant threw the chimney lamp on his daughter. The occurrence was sudden and there was no premeditation. The chimney lamp was burning there which the appellant had picked up and thrown on the deceased. Since the occurrence was in a sudden quarrel and there was no premeditation, the act of the accused would fall under Exception 4 to Section 300.

DATE: April 29, 2019

ACTS: Section 300, 302 & 304 IPC

FROM: High Court of Chhattisgarh

SUPREME COURT OF INDIA

Govind Singh Vs. State of Chhattisgarh

[Criminal Appeal No. 770 of 2019 arising out of SLP (CRL.) No. 6695 of 2018]

R. BANUMATHI, J.

1. Leave granted.

2. This appeal arises out of judgment and order dated 11.04.2013 passed by the High Court of Chhattisgarh at Bilaspur in Criminal Appeal No.587 of 2008 in and by which the High Court has affirmed the conviction of the appellant under Section 302 IPC and sentence of life imprisonment imposed upon the appellant.

3. Case of prosecution is that on 23.05.2007 at 07.30 PM, deceased Lalita was sitting in her room along with her friend Dev Kumari (PW-1); while her mother Indra Kunwar (PW-2) was cooking food inside the house. At that time, the appellant-father of the deceased came to her room and took out the bulb saying that he wanted to connect the same in the courtyard. When deceased asked her father Govind Singh not to do so, he disconnected the wire. When deceased started reconnecting the wire, the appellant asked her not to do and abused her which resulted in wordy quarrel. Out of anger, the appellant-accused threw burning chimney lamp on the deceased Lalita causing her burn injuries. Upon hearing the cries of the deceased, her mother (PW-2) and her friend Dev Kumari (PW-1) rushed near her. Ram Dayal (PW-4) and Mannu (PW-3) extinguished the fire by pouring water on the deceased.

Immediately thereafter, deceased was taken to Community Health Centre, Odgi where she was attended by Dr. P.K. Patel (PW-9). After giving her the preliminary treatment, deceased was referred to District Hospital, Ambikapur. While deceased was taking treatment at District Hospital, Ambikapur, she succumbed to her injuries on 30.05.2007. Initially the case was registered under Section 307 IPC which was subsequently altered into Section 302 IPC. The dying declaration of the deceased (Ex.P-16) was recorded by PW-21-Executive 2 Magistrate in the presence of Dr. P.K. Patel (PW-9) who certified as to the fit, mental condition of the deceased.

The eye witnesses Dev Kumari (PW-1), mother Indira Kunwar (PW-2), Manu Singh (PW-3) and Ram Dayal (PW-4) did not support the case of the prosecution and turned hostile. Mainly relying upon the dying declaration (Ex.P-16), the trial court convicted the appellant-accused under Section 302 IPC and sentenced him to undergo life imprisonment. The High Court affirmed the conviction under Section 302 IPC and also the sentence of imprisonment imposed upon the appellant. Being aggrieved, the appellant is before us.

4. By our order dated 10.08.2018, notice was issued only limited to the nature of offence and the quantum of sentence.

5. We have heard the learned counsel appearing for the appellant/accused and the learned counsel appearing for the State of Chhattisgarh and perused the impugned judgment and other materials placed on record.

6. The occurrence was at 07.30 PM. While the deceased was talking with her friend – Dev Kumari (PW-1), the appellant-accused wanted to take out the bulb as he wanted to connect the same in the courtyard for which the deceased objected. There was a wordy quarrel between the appellant-father and his daughter-deceased. In the wordy quarrel, the appellant-accused threw chimney lamp on the deceased causing her burn injuries. She sustained injuries on her face, chest and stomach and parts below the legs. The deceased succumbed to injuries seven days after the occurrence.

7. The entire occurrence was in a spur of moment. There was quarrel between the father and daughter as to where the bulb is to be put on. In the sudden quarrel and in spur of the moment, the appellant threw the chimney lamp on his daughter. The occurrence was sudden and there was no premeditation. The chimney lamp was burning there which the appellant had picked up and thrown on the deceased. Since the occurrence was in sudden quarrel and there was no premeditation, the act of the accused would fall under Exception 4 to Section 300.

8. The conviction of the appellant-accused under Section 302 IPC is modified as the one under Section 304 Part-II IPC. As per jail certificate, the appellant-accused had undergone about 10 years, 2 months and 25 days as on 26.08.2017. By now, the appellant-accused has undergone about eleven years and eight months of imprisonment. Considering the facts and circumstances of the case and the period of imprisonment which the appellant-accused has undergone, the sentence of imprisonment is modified to the period already undergone.

9. The conviction of the appellant-accused under Section 302 IPC is modified as conviction under Section 304 Part-II IPC. The sentence of life imprisonment imposed upon the appellant is reduced to the period already undergone by the appellant-accused. The appellant-accused is ordered to be released forthwith unless his presence is required in any other case.

10. The appeal is partly allowed in the above terms.

J. [R. BANUMATHI]

J. [R. SUBHASH REDDY]

New Delhi;

April 29, 2019

THE MATHRUBHOOMI PRINTING AND PUBLISIHING COMPANY LTD. AND OTHERS Vs. SUDHEESH K. AND OTHERS

The newspapers do have a legal, moral and social duty and the alleged publication cannot be said to have constituted an infraction of the law relating to defamation. No prudent man can come into a different conclusion on a reading of the news item.

KERALA HIGH COURT

SINGLE BENCH

( Before : Raja Vijayaraghavan V., J. )

THE MATHRUBHOOMI PRINTING AND PUBLISIHING COMPANY LTD. AND OTHERS — Appellant

Vs.

SUDHEESH K. AND OTHERS — Respondent

Crl. M.C. No. 2885 of 2013

Decided on : 07-04-2016

Penal Code, 1860 (IPC) – Section 482, Section 499, Section 500

Counsel for Appearing Parties

C.P. Udayabhanu, Advocate, for the Appellant; K.K. Rajeev, Public Prosecutor, for the Respondent

ORDER

Raja Vijayaraghavan V., J.—1. The petitioners herein are the Managing Editor, Printer and Publisher and the Editor of a newspaper and they are arrayed as accused Nos. 1 to 3 in S.T. No. 1114 of 2012 on the file of the Chief Judicial Magistrate Court, Kalpetta. Allegation in the complaint is that they have committed offence punishable under Section 500 of the IPC.

2. The said proceeding was initiated on the basis of Annexure-I complaint filed by the 1st respondent herein.

3. In Annexure-I complaint, it is alleged that the de facto complainant along with 9 others are running a business in the name and style as ‘World Wide Corporation’ at Kakkavayal, Kalpetta. They are engaged in direct marketing and their products include pillow covers, bed sheets, scissors meant for slicing fish and plastic vessels. The agents of the concern go directly to individual homes and sell these items and in course of time have garnered the respect of the customers in the District of Wayanad. While so, on 10.9.2012, a news item was seen published in the Mathrubhumi daily, in which, imputations in the form of an alternative was expressed ironically which according to the complainant, was intended against the “World wide corporation”. Though the name of the concern was not mentioned in the news item, it was clear on a plain reading of the news that it was directed against the concern of the complainant and none other. The news item was published under the heading (***). This item of news was circulated all over the District and any discerning person could have easily understood that it was directed against the concern of the de facto complainant. The defamatory news item lowered the stature of the complainant and his concern and tarnished their reputation. According to the complainant, the acts of the accused makes them penalty liable for the offence under Section 500 of the IPC.

4. I have heard the learned counsel appearing for the petitioners and the learned Public Prosecutor. Though notice was served on the 1st respondent, he has not chosen to enter appearance.

5. I have gone through Annexure – I complaint wherein the news item has been extracted in Para. 4. The same was published under the heading (***).

6. The news item refers to the unethical practices of certain direct marketing agencies operating in and around Kalpetta. It details the exploitation of unemployed youth by the direct marketing agencies in promising high wages and free accommodation to lure them to the business. Reference is made in the news item about the practice of these agencies in retaining the certificates of the agents so as to prevent them from giving up their employment. Specific reference is made to the case of a young girl whose relatives had to intervene in order to rescue the girl from the clutches of the agencies. It is also mentioned in the news item that the conditions of employment of the agents are very poor and they are made to work for long hours. Only a meagre commission is paid and the agents are persuaded to claim before the customers that they are pursuing MBA and BBM courses and have taken up direct marketing as part of their curriculum. It is further stated in the news item that situations are numerous where girls who work as agents face exploitation. It was on these allegations that the complaint was lodged, which the learned Magistrate had taken cognizance of after examining the complainant and his witnesses in terms of law. The aforesaid proceedings are sought to be quashed in this petition.

7. The learned counsel appearing for the petitioners would submit that the publication was made by the petitioners based on factual reports received from various sources. According to the learned counsel, averments in the publication will not prima facie make out a false imputation against any person and it cannot be said that the de facto complainant was targeted. Referring to the averments in the complaint, it was asserted by the learned counsel that there was no reference, either by name, description, or particulars about the complainant or the ‘World Wide Corporation’ and the contention of the complainant that the news item specifically referred to the complainant cannot be countenanced. He also highlighted the rights, duties and obligations to the press and contended that none of the offences were attracted.

8. The learned Public Prosecutor opposed the contentions of the learned counsel and contended that a person can be defamed by making an imputation in the form of an alternative or by expressing ironically. The learned Public Prosecutor, would further submit that the learned Magistrate have taken cognizance of the offence after examining the witnesses as well as the complainant and if the case of the petitioners is justified by good faith or if they are entitled to claim the benefit under the exceptions, it is for the petitioners to prove the same before the learned Magistrate. According to the learned Public Prosecutor, it was not for this Court to interfere at this stage and invocation of powers under Section 482 of the Code was not justified in the facts and circumstances.

9. I have carefully gone through the complaint. The petitioners does not dispute the fact that the news item was published. The contention of the learned counsel is that a dispassionate reading of the news item will only reveal that the intention was to bring to the notice of the general public, the modus operandi of direct marketing operations in general and no reference is made to the complainant or to the concern of the complainant. There are general allegations as regards the exploitation and unethical practices of direct marketing agencies at Kalpetta.

10. Section 499 of the Indian Penal Code gives the definition of defamation. Shorn of the Explanations and the Exceptions, the definition reads as under:–

“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.”

11. The definition of defamation, given in Section 499 reproduced above, goes to show that if a person publishes any imputation concerning another person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of the other person he would, except in cases covered by the Exceptions, be guilty of defaming the other person.

12. Now coming back to the news item, it is clear from an impartial reading of the same that reference is made only to direct marketing agencies in general and not to any particular individual or concern. Of course, there is no need to refer to any person or concern specifically and it would be enough if the imputation is made in the form of an alternative or if the same is expressed ironically. The reference need not even be explicit and if the description and attendant circumstances suggest with a fair certainty, the identity of the person intended, the offence will be attracted. But at the same time, it is settled by now that the defamatory matter to be actionable, it must be such that it contains an imputation concerning some particular person or persons whose identity can be established.

13. The learned counsel referred to the judgment of this Court in Raman Namboodiri v. Govindan [, 1962 KLT 538] wherein it was observed as follows:

” If the words complained of contain no reflection on a particular individual or individuals, but may equally apply to others belonging to the same class an action for defamation will not lie. The defamatory matter to be actionable must be such that it contains an imputation concerning some particular person or persons whose identity can be established. It is unnecessary that the person whose conduct is called in question should be described by name. It is sufficient if on the evidence it can be shown that the imputation was directed towards a particular person or persons who can be identified. In this case the imputation complained of was directed against the Adhikari and it is impossible in my opinion, upon the facts disclosed to ascertain with any degree of certitude who that Adhikari is, whether it is the appellant or whether it is his son.”

14. From the allegations in the complaint, I find it very difficult to comprehend that the 1st respondent or his concern was targeted and that the intention of the petitioners herein was to harm the reputation of the 1st respondent or his concern. Only general references to the unethical practices of direct marketing agencies are made in the complaint. These are all matters which are required to be brought to the notice of the general public. It is not possible to comprehend that the de facto complainant or his concern was defamed as a result of the said publication.

15. The newspapers do have a legal, moral and social duty and the alleged publication cannot be said to have constituted an infraction of the law relating to defamation. No prudent man can come into a different conclusion on a reading of the news item.

16. In Sahib Singh v. State of U.P. (, AIR 1965 SC 1451) the Supreme Court has observed as follows:–

“In a free society, the press enjoys an important position and plays a vital role. It may articulate the yearnings and aspirations of the inarticulate and give voice and visage to them. A muffled or muted media cannot discharge the trust that it holds. But, the liberty of press, by its history and connotation must be deemed to have certain limitations. It has to keep within these bounds, and not transgress frontiers of decency and propriety. Vituperative exercises, or yellow journalism, cannot pass muster under the guise of freedom of press, no more than shilling shockers, or salacious prose can masquerade, as literary works. The freedom of press is no mere important, than the good name of the press. It must set the right tune.”

17. The news item cannot be said to be a vituperative exercise intended to target the complainant or his concern nor can it be said that they have exceeded the frontiers or decency or propriety. It does not appear to me that the news item was published with malevolent motive or with intent to cast aspersions on the complainant or his concern or with intent to tarnish his reputation in public.

18. In the light of the above materials and the facts which are beyond dispute and in view of the settled position of law, I am of the view that on a reading of Annexure – A complaint no offence under Section 499 is disclosed against the petitioners who are accused Nos. 1 to 3. Therefore, the court below ought not have taken cognizance against the petitioners/accused.

19. In above view of the matter, I am of the view that the petition is required to be allowed and the concerned criminal complaint filed by the second respondent deserve to be quashed.

20. The petition is therefore, allowed and all further proceedings in S.T. No. 1114 of 2012 on the file of the Chief Judicial Magistrate Court, Kalpetta, is quashed.

Final Result : Allowed

In controversy as to whether the material complained of is defamatory or not, the Court will first decide, as a question of law [ RHC]

RAJASTHAN HIGH COURT

SINGLE BENCH

( Before : K.S. Sidhu, J. )

SECRETARY, N.C.E.R.T. — Appellant

Vs.

DR. P. D. BHATNAGAR — Respondent

Criminal Misc. Application No. 217 of 1979 Against the order of Judicial Magistrate, Ajmer dated 19-7-1979 passed in case No. 74 of 1979 (77 of 1979)

Decided on : 22-01-1980

Counsel for Appearing Parties

V.S. Dave and A.K. Sharma, Advocates, for the Petitioners; Amrit Kumar, Advocate, for the non-petitioners

JUDGMENT

K. S. Sidhu, J.—The two petitions listed above filed under section 482 Cr. P. C. arise out of two complaints under section 500 I. P. C. pending before two different judicial magistrates, one in the district of Ajmer and the other in Bharatpur. Besides the Secretary, National Council of Educational Research and Training. New Delhi (for short the N. C. E. R. T.), all other petitioners 24 in number including Principal Wanchoo, a Professor and several Readers were members of the Faculty of Regional College of Education, Ajmer, at the material time. The complainant in one case is P. D. Bhatnagar who was himself a Professor in the same college. The complainant in the second case is Shiv Kumar who was a Junior Research Fellow in the said College at the relevant time.

2. P. D. Bhatnagar filed his complaint on the allegations that there were serious differences between him and the petitioners relating to discipline and other College affairs creating bad blood on both sides. Giving instances of matters which created the differences, he mentioned that he did not approve of hosting of drink parties and taking of alcoholic drinks by some of the petitioners at the campus of the college. He had also differences with the petitioners over what he described as bungling in internal assessment and arbitrary stoppage of scholarships of the students. In August, 1977, the students of the college went on a strike. Shri Nathu Singb, a Member of Parliament and Shri Onkar Singh Lakhawat, a lawyer member of the Janta Party visited the college and tried to sort out these problems. The petitioners and some other members of the Faculty published a date wise account of the events of the strike containing what complainant Bhatnagar considers defamatory accusations against him. The passages in the said document to which Bhatnagar has taken particular exception may be reproduced here as follows : –

1. All wrong, deceitful, derogatory and malicious informations were fed to Shri Singh (Nathu Singh) through leading and instigating questions by Dr. Bhatnagar. Students were directed to narrate their demands and grievances. Some of the false and malicious description like drinking parties by staff members with ladies, tape recording and black-mailing of ladies were narrated to him through leading questions asked by Dr. Bhatnagar.

2. He (i.e. Dr. Bhatnagar) was continuously whispering something to the students which instigated them more and they began to shout at Mr. Wanchoo.

…Then Dr. Bhatnagar addressed the students alone. After sometime some outsiders beat some college students on a different issue but Dr. Bhatnagar and Mr. Bhartiya told the students that Mr. Wanchoo had hired outside Gundas to beat the college students.

3. Dr. Bhatnagar warned Principal Wanchoo to get prepared for the worst from his (Dr. Bhatnagar’s) side.

4. The meeting continued against rowdyism aggressive behaviour and abusive languages on the part of the students even in the presence of Dr. Bhatnagar and Shri Bhartiya.

5. Dr. P. D. Bhatnagar & R.K. Bhartiya losing their tempers very often and instigating students.

6. When these people started moving at about 6-00 p. m. there was a cry from behind “Acting Principal” by Dr. P. D. Bhatnagar. There was shout by Dr. P. D. Bhatnagar, “Do not leave him, get hold of him, but M/s Dr. Dave, Dr. Panda. Ramakrishna anu Balbeer Singh ran away. A few blows also fell on the back of Dr. Panda and Shri Ramkrishna.

Thank God that the gate near the PBX was not closed by the students. It was a narrow escape.

3. Bhatnagar filed the complaint against petitioners on July 3, 1979 after a lapse of nearly two years from the date of occurrence. Explaining the delay, he pleaded that it was only on June 28, 1979 when he came to know that the petitioners were the authors of the objectionable documents which had been submitted by them to the authorities in N. C. E. R. T. and other important people under their own signatures. He mentioned in passing that a departmental enquiry had been instituted against him by the N. C. E. R. T. on the basis of the said document and that the Inquiry Officer had supplied to him, along with the charge-sheet, a true copy of that document on June 28, 1979. That is how he came to know that the petitioners had published this document.

4. Shiv Kumar filed his complaint against the same petitioners on August 3, 1979. He mentioned there in that the petitioners had animosity against him because he opposed drinking parties and taking of alcoholic drinks by them on the campus of the college. He also stated that he had been the leader of the striking students who opposed what he described as bundling in internal assessment marks and arbitrary stoppage of scholarships of the students. His complaint in respect of the aforementioned signed document, containing a date-wise account of the events of the strike is confined to the following passages : –

1. During their talk, the students led by Shri Shiv Kumar, J. R. F. stormed-into the office of the Principal with the students. These students were forcibly taken out of their classes by the said J. R. F. In the presence of the honourable guest they (including Shiv Kumar) began to abuse the Principal and accuse him of various injustices……………

2. At one stage students like Subhash Sangwan, Gunvir Singh, Hiralal, Lakhmi Cant and JRF Shiv Kumar jumped at Mr. S. P. Ram, the Senior Most Reader of the college using the most abusive and offensive language. Because of the presence of some staff members he was saved. All this goondaism took place in the presence of Dr. Bhatnagar and Shri Bhartiya.

3. Inspite of Mr. (Onkar Singh) Lakhawat’s requests, the students under the leadership of Shiv Kumar left the room shouting slogans in abusive languages.

Another document to which he took exception is said to have been issued by the petitioners, under the “Unacademic and restrictive Activities of Dr.P.D, Bhatnagar on September 14, 1977. The alleged objectionable passage may be reproduced here : –

1. That during 1975-76 above mentioned Shiv Kumar was admitted to one year B. Ed. Science. Another Shiv Kumar of Hapur (U. P.) gave legal notice to the Principal, Relational College and Vice Chancellor Rajasthan University stating that this Shiv Kumar (J. R. F.) had impersonated him in 1975 July, and got admitted to the Regional College. The test mark sheets reached Shiv Kumar of Hapur. There appears to have been sufficient evidence with the college to this effect.

2. That on 5.9.77 he alongwith Shiv Kumar (J. R. F.) and A. S. Bedi student were seen standing at three exit doors of Rajasthan Vidhan Sabha Jaipur and distributing an unsigned cyclostyled paper to the Vidhayaks. The cyclostyled paper contained false and fabricated statements and show an ideal exercise in Yellow Journalism.

3. That Dr. P. D. Bhatnagar, J. R. F. Shiv Kumar and student A. S. Bhati were seen standing at the exit doors of Jaipur Vidhan Sabha and distributing an unsigned Hindi cyclostyle sheet an ideal exercise in Yellow Journalism to the Vidhayuks as and when they emerged out on behalf of H. C. F. student.

It is alleged that the petitioners sent the aforementioned defamatory documents to Shri Bachani and Shri Tara Chand, M. L. C. These documents were also delivered to Shri Pradumusan and Shri Daulat Ram Sharma, residents of Bharatpur. According to Shiv Kumar the imputation contained in these documents brought him down in the esteem of residents of Bharatpur.

5. Like P. D. Bhatnagar the other complainant, Shiv Kumar pleaded that he could not take legal action against the petitioners earlier in the absence of a signed copy being made available to him. P. D. Bhatnagar met Shiv Kumar at Bharatpur on August 2, 1979 and brought to his notice a photostat copy of the signed document containing the alleged defamatory material.

6. After examining the complainant and recording the statement of one Hari Singh by way of inquiry, the learned Judicial Magistrate, Ajmer passed an order dated July 19, 1979 issuing process against all the 25 petitioners summoning them to face proceedings in his court under section 500 I. P. C. Similarly, the Bharatpur Magistrate, who took cognizance of the complaint of Shiv Kumar passed an order dated August 17, 1979 issuing process against as many as 20 members of the Faculty summoning them to stand trial under section 500 I. P. C.

7. Most of the accused in both the complaints are common. They filed the present petition under section 482 Cr. P. C. challenging the process issued against them by the Judicial Magistrate, Ajmer and Judicial Magistrate, Bharatpur vide orders dated July 19, 1979 and August 17, 1979 respectively. This Court admitted these petitions on September 19, 1979 and further directed that the proceedings in both the courts below shall remain stayed till further orders.

8. Section 482 Cr. P. C., under which these two petitions purport to have been filed deals with the inherent powers of the High Court. It lays down inter alia that nothing contained in the said Code, shall be deemed to limit or affect the inherent powers of the High Court to prevent the abuse of the process of any court, or otherwise to secure the ends of justice. I have examined the record and heard learned counsel on both sides at considerable length with a view to ascertaining, if by issue of process against the petitioners the learned Magistrates have permitted abuse of the process of their courts resulting in manifest failure of justice and therefore warranting interference by this Court in the exercise of its inherent powers under section 482 Cr. P. C. I am constrained to say that this question must be answered in the affirmative. The impugned orders, issuing process against the petitioners under section 204 Cr. P. C. therefore, deserve to be quashed and, instead, the two complainant deserve to be dismissed under section 203 Cr. P. C. Reasons for this opinion may be stated as follows : –

9. Section 499 I. P. C. which deals with the offence of defamation defies the offence with the aid of four Explanations and ten Exceptions with more Explanations and Illustrations appended to the Exceptions. We may read here the main definition and Explanation 4 which are relevant for decision of these petitions. They are as under:

499 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 – 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.

The essential ingredients of the offence of defamation therefore, are : – (1) making or publishing any imputation concerning any person (2) such imputation must have been made by words either spoken or intended to be read or by signs or by visible representations and (3) such imputation must have been made with the intention to harm or with the knowledge or having reason to believe that it will harm the reputation of that person. The first and foremost question which a court dealing with criminal prosecution involving the offence of defamation must, therefore, answer is whether the alleged material described as defamatory amounts to imputation within the meaning of this expression as used in Section 499. Imputation ordinarily implies an accusation. Imputation or accusation alone will not suffice. To constitute the offence of defamation, the prosecutor will have to prove that the imputation or accusation was made with an intention or knowledge or belief as mentioned in ingredient 3 above. A person is not guilty of defamation by making the imputation or accusation unless he intends to harm or knows or has reason to believe that thereby he would harm the reputation of another person. In other words an imputation or accusation simplicity without proof of requisite intention, knowledge or belief as covered by ingredient 3 of the definition will not constitute the offence of defamation.

10. The question whether an imputation or accusation is defamatory or not is a mixed question of law and fact. If there is a controversy as to whether the material complained of is defamatory or not, the Court will first have to decide, as a question of law. as to whether the said material is capable of being understood in a defamatory sense. If the court decides this question in the affirmative, it will then, and then only, proceed to determine whether, the said material containing a defamatory potential had in fact harmed the reputation of the complainant, within the ambit of the definition of such harm as given in Explanation 4. If the material is defamatory parse, for example, where the accused imputed commission of a felonious crime to the complainant, there is no difficulty in deciding the question of law mentioned above. The court will at once answer it saying that the imputation of commission of felony by the defendant is capable of being understood in no other but a defamatory sense. In such a situation, the court would be justified in straight away taking the parties to evidence with a view to determining as a question of fact, whether the said imputation had harmed the reputation of the complainant within the four corners of Explanation 4. If on the other hand, the words of the alleged imputation are ambiguous, it becomes a question of some difficulty for the court to decide whether those words are capable of being understood in a defamatory sense. If the court decides in the context of a particular complaint that the words in question are reasonably capable of bearing a defamatory meaning, it is only thereafter that it will address itself to the question of fact regarding harm to the reputation of the complainant.

11. In issuing process against the petitioners on the complaints of P. D. Bhatnagar and Shiv Kumar, respectively, the learned Magistrates appear to have been influenced mainly by the evidence of certain witnesses who appeared before them in the inquiry under Section 202 Cr. P. C. and gave evidence to the effect that the publications in question had harmed the reputation of the complainants in their estimation. Before considering the question as to whether the publications in question had in fact harmed the reputation of the complainants in the estimation of others, it was incumbent upon the learned Magistrates to determine, as a question of law, as to whether the said publications were capable at all of being understood in a defamatory sense by the right thinking members of the society. The learned Magistrates did not approach and appreciate the problem from that angle. They did not consider this question at all, much less answer it.

12. Let us, therefore, find out as to whether the publications in question were capable of being understood in a defamatory sense by reasonable members of the society generally. As already stated, the complainants themselves admitted in the text of their complaints that there were serious difference between them on one side and the petitioners on the other relating to discipline and other college affairs. Such difference had created bad blood on both sides. They mentioned in this context that they opposed drinking parties and taking of alcoholic drinks by some of the petitioner on the campus of the college. Shiv Kumar, the complainant in the second complaint, even admitted that he had led the students to strike over what he described as bungling in assessment marks and arbitrary stoppage of scholarships of the students. P. D. Bhatanagar, who is the complainant in the first complaint, admitted that, on a complaint being made by the petitioners to the authorities in the N.C.E.R.T. a departmental inquiry was instituted against him by the s aid authorities on the basis of the allegations contained in the said complaint. The enquiry was still pending when he rushed to file the criminal complaint against the petitioners, describing the allegations in the petitioners’ complaint against him to the N. C. E. R. T. authorities as defamatory. Now, if we size up the petitioners’ complaint in the back ground of the complainants’ allegations to the effect that some of the petitioners were guilty taking alcoholic drinks in the company of lady members of the Faculty on the campus of the college and also of bungling in the assessment of marks, the petitioners’ complaint will emerge as a relatively restrained and disciplined effort on their part in vindication of Their own conduct as member of the Faculty vis-a-vis the conduct of the complainants as such. For example, P. D. Bhatnagar, complaints that the petitioners used snarl words like “wrong, deceitful, derogatory and malicious'” m relation to the leading questions which Bhatnagar is alleged to have out to the striking students in the presence of Shri Nathu Singh, Member of Parliament, to convince the latter that some of the petitioners were in the habit of taking alcoholic drinks and hosting drink parties with lady members of the Faculty as guest on the campus of the college. This material could not be understood by any right thinking man in a defamatory sense. A person who knows that the complaints have been opposed to the petitioners because the former do not approve of the alleged taking of alcoholic drinks and hosting of drink parties by the petitioners on the campus of the college is not likely to hold the complainants in any lover esteem by reason of the fact that they tried to expose the petitioners by putting leading questions to the students about such parties in the presence of Shri Nathu Singh.

13. Similarly imputations produced at Nos. 2, 3, 4, 5 and 6 in paragraph 2 of this judgment are not reasonably capable of being construed in a defamatory sense in the context of the situation of contention between the complainants on one side and the petitioners on the other in the Regional College of Education, Ajmer, brought about by the complainants themselves. It must be remembered that in every case the court is required to decide whether or not such words are reasonably capable of bearing defamatory meaning in the particular circumstances in which they have been published. Having regard to the fact that both the complainants have tried to justify the strike by the students in the Regional College of Education, Ajmer, by blaming it on the petitioners, the court cannot possibly adjudge the allegations of the complainants contained in Nos. 2, 3, 4,5, and 6 aforementioned as reasonably capable of bearing a defamatory meaning.

14. The observations made above in relation to the complaint of P. D. Bhatnagar apply with equal force to the complaint of Shiv Kumar against the petitioners. Shiv Kumar made an allegation in his complaint that he was compelled to lead the striking students because he opposed the drinking parties and taking of alcoholic drinks by the petitioners on the campus of the college and he did not like what he described as bungling in internal assessment of marks and arbitrary stoppage of scholarships of the students. It these are his own accusations against the petitioners, he cannot be heard complaining if the petitioners tried to defend themselves by complaining to the authorities in the N. C. E. R. T. that the complainant had stormed into the office of the Principal, along with the students, and abused the Principal. The allegation of the petitioners in their complaint to the authorities in the N. C. E. R.T. that acts of gundaism took plea in the college in the presence of complainants cannot by any means be described as defamatory. The petitioners’ allegation that one Shiv Kumar of Hapur, a name-shake of complainant Shiv Kumar, had served a legal notice on the Principal of the Regional College of Education, Ajmer, and the Vice Chancellor of the Rajasthan University, Jaipur, stating that complainant Shiv Kumar had impersonated him in the year 1975 and thus got admission to the Regional College, Ajmer, is also not defamatory. It is whit maybe described as a bare statement of fact If some one has served a baseless of bogus notice on the Principal of the College and the Vice Chancellor of the University of Rajasthan, it cannot possibly defend Shiv Kumar in the estimation of those, who know that he is not an impostor. It is significant to note that Shiv Kumar himself has not committed in any manner as to whether the notice is bogus, baseless or what.

15. The other material alleged to be defamatory in Shiv Kumar’s complaint is also of similar nature. The petitioners who are members of the Faculty of the Regional College of Education, Ajmer, were placed in such a difficult situation as a result of the allegations made against them by the two complainants that they were left with no option but to bring the whole matter to the notice of the authorities in N. C. E. R. T. for rectification of the situation and redressal of their grievances against the complainants. It is obvious that when they wrote to the N. C. E. R. T. authorities under their own signatures their only purpose, as they explained in their covering letter to the said authorities, was to bring the facts to their notice so that the sanctity of the cause of education and norms of discipline, decorum and decency of academic life could be protected. No defamatory intention knowledge or belief can reasonably be attributed to the petitioners from the communications complained of as defamatory.

16. For all these reasons, I have no hesitation in holding that none of the publications complained of is reasonably capable of bearing a defamatory meaning in the particular circumstances in which they were published. That .being so, it would-quite clearly amount to an abuse of process of the court if the complainants are permitted to subject as many as 25 members of the Faculty of the Regional College of Education, Ajmer to the inconvenience and expenses of what is bound to be a long and tortuous trial. I must therefore interfere in the matter in the exercise of the inherent powers of this Court to rectify the error committed by the learned Magistrate in issuing the process against the petitioners. Consequently, allow the two petitions set said the impugned orders and instead dismiss the two complaints under section 283 Cr. P. C.


(1980) 5 RajCriC 392

Rama Rao And Anr. vs Narayan And Anr – 20/12/1968

SUPREME COURT OF INDIA JUDGMENTS

By Section 195 of the Code of Criminal Procedure, it is enacted that certain offences amounting to contempt of lawful authority of public servant i.e., offences falling under Sections 172 to 188, I.P. Code offences against public justice under Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offences are alleged to have been committed in or in relation to, any proceeding in any court, and offences described in Section 463, or punishable under Section 471, 475 or 476 when such offences are alleged to have been committed by a party to any proceeding in any court in respect of a document produced or given in evidence in such proceeding, cannot be taken cognizance of by any court, except in the first class of cases on a complaint in writing of the public servant concerned and in the second and third class of cases on the complaint in writing of such court or some other court to which it is subordinate.

Supreme Court of India

Rama Rao And Anr. vs Narayan And Anr.

Date: 20 December, 1968

Bench: A Grover, J Shah

Acts: Maharashtra Co-operative Societies Act, 1960

JUDGMENT

Shah, J.

1. The Nagpur District Land Development Bank Ltd. is registered as a society under the Maharashtra Co-operative Societies Act, 1960. One Narayan Tanbaji Murkute applied for membership of the bank as a “non-borrowing member”. At a meeting of the bank held on June 30, 1964, the application of Murkute and 94 others were granted and they were enrolled as members. But in the list of members entitled to take part in the General Meeting, dated June 30, 1964, the names of the Murkute and others were not included.

2. Murkute and others then applied to the Registrar Co-operative Societies for an order declaring that they were entitled to participate in the election of office-bearers and for an injunction restraining the President and the Secretary from holding the Annual General Meeting. The registrar referred the dispute for adjudication under Section 93 of the Maharashtra Co-operative Societies Act, 1960 to H. V. Kulkarni, his nominee. The nominee decided the dispute on May 7, 1965, and held that Murkute and other applicant were members of the Bank. In the proceeding before the nominee certain document including the minutes book of the bank were produced. It is claimed by Murkute that those books were fabricated the President and the Secretary with a view to make it appears that Murkute and other persons were never elected members of the bank.

3. On August 7, 1965, Murkute filed a complaint in the Court of the Judicial Magistrate, First Class, Nagpur, charging the President and Secretary of the bank with committing offences under Sections 465 and 477, I.P. Code. It was alleged in the complaint that the two accused had dishonestly and fraudulently introduced a clause in Resolution no. 3 appearing in the minutes book with the intention of causing it to be believed that the clause was part of the original resolution passed by the Board of Directors in the meeting held on June 30, 1964, whereas it was known to them that at that meeting no such clause was passed.

4. The two accused raised an objection that the Magistrate had no jurisdiction to take cognizance of the complaint without the previous sanction of the Registered of Co-operative Societies under Section 148(3) of the Maharashtra Co-operative Societies Act, 1960. The Trial Magistrate rejected the contention. The order was confirmed by the Court of Session and the High Court of Bombay.

5. In this court counsel for the accused raised two contentions –

(1) that the nominee of the Registrar appointed under Section 95 of the Maharashtra Co-operative Societies Act, 1960, was a “court” within the meaning of Section 195, Code of Criminal Procedure and a complaint for offences under Sections 465 and 471, I. P. Code, alleged to have been committed by a party to any proceeding in respect of a document produced or given in evidence in such proceeding, cannot be entertained except on a complaint in writing of such court, or of a court to which it is subordinate; and (2) that offence charged in the complaint fell within the description of the offences under Section 146(p) of the Maharashtra Co-operative Societies Act, 1960 and without the sanction of the Registrar the complaint was not maintainable.

6. Section 195, Code of Criminal Procedure in so far as it is relevant provides :

“(1) No court shall take cognizance –

(a) X X X X

(b) X X X X

(c) of any offence described in Section 463 or punishable under Section 471 X X X when such offence is alleged to have been committed by a party to any proceeding is any court in respect of a document produced or given in evidence in such proceeding, except on the compliant in writing of such court, or of some other some court to which such court it subordinate.
“(2) In clauses (b) and (c) of sub-section (1), the term “Court” includes a Civil, Revenue or Criminal Court, does not include a Registrar or Sub-Registrar under the Indian Registration Act, 1877.”

Murkute complained that the President and the Secretary of the bank who were parties to the proceeding before the nominee of the Registrar had committed offences under Section 465 and 467, I.P. Code, in respect of documents produced or given in evidence at the trial. If the Registrar’s nominee is a court within the meaning of Section 195 Code of Criminal Procedure, the Magistrate could not take cognizance except on the complaint in writing by the Registrar’s nominee or of some court to which he was subordinate. To determine whether the Registrar’s nominee is a court it is necessary to refer to the relevant provisions of the Maharashtra Co-operative Societies Act, 1960, relating to the functions of the nominee and the power with which he is invested. Counsel for the appellants urges that by the Maharashtra Co-operative Societies Act the power of the Civil Court to entertain disputes with regard to certain matters concerning co-operative societies is expressly excluded from the jurisdiction of the Civil Court and the Registrar or his nominee is alone competent to determine those question thereby the Registrar and his nominee are invested with the judicial power of the State and they are on that account “courts” within the meaning of Section 195 of the Code of Criminal Procedure.

7. Section 2(2) of the Maharashtra Co-operative Societies Act, 1960, defines “arbitrator” as meaning” a person appointed under this Act to decide dispute referred to him by the Registrar and includes the Registrar’s nominee or board of nominees”. Section 91 and the following section which occur in Chapter IX relate to disputes and arbitration. By Section 91, in so far as it is material it is provided :

“(1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, election of the officer-bearer, conduct of general meetings, management or business of a Society shall be referred by any of the parties to the dispute X X X X to the Registrar, if both the parties hereto are one or other of the following :

(a) X X X X

(b) a member, past member or a person claiming through a member, past
member or a deceased member of a society, or a society which is a
member of the society.

(c) X X X X

(d) X X X X

(e) X X X X

(2) When any question arises whether for the purpose of the foregoing sub-section, a matter referred to for decision is a dispute or not, the question shall be considered by the Registrar, whose decision shall be final.

(3) Save as otherwise provided under sub-section (3) of Section 93 the court shall have jurisdiction to entertain any suit or other proceedings in respect of any dispute referred to in sub-section (1).”

Section 93 provides :

“(1) If the Registrar is satisfied that any matter referred to him or brought to his notice is a dispute within meaning of Section 91, the Registrar shall, subject to the rules, decide the dispute himself, or refer it for disposal to a nominee, or a abroad of nominees, appointed by the Registrar.

(2) Where any dispute is referred under the foregoing sub-section, for decision to the Registrar’s nominee or broad of nominees, the Registrar may at any time, for reasons to be recorded in writing with-draw such dispute from his nominee or board of nominees, and may decide the dispute himself or refer it again for decision to any other nominee, or board of nominees, appointed by him.

(3) Notwithstanding anything contained in Section 91, the Registrar may, if he thinks, fit, suspend proceedings in regard to any dispute, if the question at issue between a society and a claimant or between different claimants, is one involving complicated questions of law and fact, until the question has been tried by a regular suit instituted by one of the parties or by the society.

If any such suit is not instituted within two months from the Registrar’s order suspending proceedings, the Registrar shall take action as it provided in sub-section (1).”

Section 94 provides for the procedure of settlement of disputes and power of the Registrar, his nominee or the board of nominees. It provides, in so far as it is material :

“(1) the Registrar, or his nominee or board of nominees, hearing a dispute under the last proceeding section shall hear the dispute in the manner prescribed, and shall have power to summon and enforce attendance of witnesses including the parties interested or any of them and the compel them to give evidence or oath, affirmation or affidavit, and to compel the production of documents by the same means and as far as possible in the same manner, as is provided in the case of a Civil Court by the Code of Civil Procedure, 1908.

(2) Except with the permission of the Registrar or his nominee or board of nominees as the case may be no party shall be represented at the hearing of a dispute by a legal practitioner.”

Sub-section (3) of Section 94 authorises the Registrar, his nominee or the board of nominees to join or substitute new parties. Section 95 authorises the Registrar or his nominee or board of nominees to pass an order of attachment and other interlocutory orders. Section 96 provides :

“When a dispute is referred to arbitration the Registrar or his nominee or board of nominees may, after giving a reasonable opportunity to the parties to the dispute to be heard, make an award on the dispute, on the expenses incurred by the parties to the dispute in connection with the proceedings, and fees and expenses payable to the Registrar or his nominee or as the case may be, board of nominees. Such an award shall not be invalid merely on the ground that it was made after the expiry of the period fixed for deciding the dispute by the Registrar and shall, subject to appeal or review of revision, be binding on the parties to the dispute.”

Section 97 provides :

“Any party aggrieved by any decision of the Registrar or his nominee or board of nominees under the last preceding section, or an order passed under Section 95 may, X X X appeal to the Tribunal.”

Section 98 provides that every order passed by the Registrar or his nominee or board of nominees or in appeal therefrom shall, if not carried out, on a certificate signed by the Registrar, be deemed to be a decree of a Civil Court, and shall be executed in the same manner as a decree of such court or be executed according to the law and under the rules for the time being in force for the recovery of arrears of land revenue. By Section 99 a private transfer or delivery of, or encumbrance of charge on, property made or crated after the issue of the certificate of the Registrar under Section 98 shall be null and void as against the society on whose application the certificate was issued.

8. Jurisdiction of the Civil Court by Section 91(3) to entertain a suit in respect of any dispute referred to in sub-section (1) of Section 91 is expressly excluded and the dispute is required by law to be referred to the Registrar or his nominee. Against the decision of the Registrar’s nominee an appeal lies under Section 97 and the order made for payment of money is enforceable as a decree of the Civil Court. The Registrar or his nominee called upon to decide the dispute are bound to hear it in the manner prescribed and they have power to summon and enforce attendance of witnesses and to compel then to give evidence on oath, affirmation or affidavit and to compel production of documents. The effect of these provisions, according to counsel for the appellants, is that the judicial power of the State to deal with and dispose of disputes of a civil nature which fall within the description of Section 91(1) is vested in the Registrar’s nominee and he is on that account made a “court” within the normal connotation of the term.

9. Section 195(2) of the Code of Criminal Procedure enacts that the term “court” includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the Indian Registration Act, 1877. The expression “court” is not restricted to courts, Civil, Revenue or Criminal, it includes other tribunals. The expression “court” is not defined in the Code of Criminal Procedure. Under Section 3 of the Indian Evidence Act “court” is defined as including “all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence”. But this definition is devised for the purpose of the Evidence Act and will not necessarily apply to the Code of Criminal Procedure. The expression “Court of Justice” is defined in the Indian Penal Code by Section 20 as denoting “a Judge who is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially”. That again is not a definition of the expression “court” as used in the Criminal Procedure. The expression “court” in ordinarily parlance is a generic expression and in the context in which it occurs may mean a “body or organizations” invested with power, authority or dignity. In Halsbury’s Laws of England, 3rd Edn., Vol. 9, Article 809, at page 342, it is stated :

“Originally the term “court” meant, among other meanings, the sovereign’s place; it has acquired the meaning of the place where justice is administered and, further, has come to mean the persons who exercise judicial functions under authority derived either directly or indirectly from the sovereign. All tribunals, however, are not courts in the sense in which the term is here employed, namely to denote such tribunals as exercise jurisdiction over persons by reason of the sanction of the law, and not merely by reason of voluntary submission to their jurisdiction. Thus, arbitrators, committees of clubs, and the like, although they may be tribunals exercising judicial functions, are not “courts” in this sense of that term. On the other hand, a tribunal may be a court in the strict sense of the term although the chief part of its duties is not judicial. Parliament is a court. Its duties are mainly deliberative and legislative; the judicial duties are only part of its function.”

In Article 810 it is stated :

“In determining whether a tribunal is a judicial body the facts that it has been appointed by a non-judicial authority, that it has no power to administer an oath, that the chairman has a casting vote, and that third parties have power to intervene are immaterial, especially if the statute setting it up prescribes a penalty for making false statement; element to be considered are (1) the requirement for a public hearing, subject to a power to exclude the public in a proper case, and (2) a provision that member of the tribunal shall not take part in any decision in which he is personally interested, or unless he has been present throughout the proceedings.

A tribunal is not necessary a court in the strict sense exercising judicial power because (1) it gives a final decision; (2) hears witnesses on oath; (3) two or more contending parties appear before it between whom it has to decide; (4) it gives decisions which affect the rights of subjects; (5) there is an appeal to a court; and (6) it is body to which a matter is referred by another body. Many bodies are not courts, although they have to decide questions, and in so doing have to act judicially, in the sense that the proceedings must be conducted with fairness and impartiality, such as the former assessment committees, the former court of referees which was constituted under the Unemployment Insurance Acts, the benchers of the Inns of Court when considering the conduct of one of their members, the Disciplinary Committee of the General Medical Council when considering question affecting the conduct of a medical man, a trade union when exercising disciplinary jurisdiction over its members, or the chief officer of a force exercising discipline over member of the force.”

A body required to act judicially in the sense that its proceedings must be conducted with fairness and impartiality may not therefore necessarily be regarded as a court.

10. Counsel for the appellant however invited our attention to a number of decisions in support of his contention that wherever there is a dispute which is required to be resolved by a body invested with power by statute and the body has to act judicially, it must be regarded as a court within the meaning of Section 195 of the Code of Criminal Procedure. Counsel asserted that every quasi-judicial authority is a court within the meaning of Section 195(2) of the Code of Criminal Procedure. The contention is inconsistent with a large body of authority of this court to which we will presently refer.

11. By Section 195 of the Code of Criminal Procedure, it is enacted that certain offences amounting to contempt of lawful authority of public servant i.e., offences falling under Sections 172 to 188, I.P. Code offences against public justice under Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offences are alleged to have been committed in or in relation to, any proceeding in any court, and offences described in Section 463, or punishable under Section 471, 475 or 476 when such offences are alleged to have been committed by a party to any proceeding in any court in respect of a document produced or given in evidence in such proceeding, cannot be taken cognizance of by any court, except in the first class of cases on a complaint in writing of the public servant concerned and in the second and third class of cases on the complaint in writing of such court or some other court to which it is subordinate.

12. An offence ordinarily signifies a public wrong: it is an act or omission which is a crime against society: it may therefore be brought to the notice of the court by any person, even if he is not personally aggrieved by the act or omission. To that rule there are certain exception which are specified in Sections 195, 196, 197, 198, 198-A of the Code of Criminal Procedure and other special statutes. Authority of courts to entertain complaints in respect of the offences so specified is barred in view of the special nature of the offence which vitally affect individuals only or public bodies and in the larger interest of society it is deemed expedient to exempt them from the general rule.

13. The nominee of the Registrar acting under Section 96 performs the functions substantially of an arbitrator to whom a dispute is referred for adjudication. The Registrar may appoint a single nominee or a board of nominees and may at any time, for reasons to be recorded in writing, withdraw such dispute from the nominee or board of nominees, and may decide the dispute himself, or refer it again for decision to another nominee, or board of nominees, appointed by him. Under sub-section (3) of Section 93, it is open to the Registrar to suspend proceedings in regard to any dispute if the question at issue between a society and a claimant or between different claimant, is one involving complicated question of law of fact. The jurisdiction of the nominee or board of nominees arises by reason not of investment by statute, but by appointment made by the Registrar who exercises control ever the proceeding. The nominee, therefore, derives his authority from his appointment by the Registrar: the registrar entitled to withdraw his authority; and the Registrar may fix the time within which a dispute shall be disposed of : his adjudication is again called an award. The nominee is even entitled to make a provision for the expenses payable to the Registrar or to himself. It is true that the procedure of the nominee is assimilated to the procedure followed in the trial of a Civil Proceeding. The nominee has the power to summon witnesses, to compel them to produce documents and he is required to hear the dispute in the manner prescribed by the Code of Civil Procedure. Thereby he is required to act judicially, i.e., fairly and impartially: but the obligation to act judicially will not necessarily make him a court within the meaning of Section 195 of the code. The position of a nominee of the Registrar is analogous to that of an arbitrator designated under a statutory arbitration to which the provisions of Section 47 of the Arbitration Act, 1940, apply.

14. The authorities to which our attention was invited by counsel for the appellants may now be considered. It may be sufficient here to observe that the test laid down by his court in certain cases to be presently noticed make many of the cases relied upon of doubtful authority. In Thadi Subbi Reddy v. Emperor (AIR 1930 Mad 369) it was held by a single Judge of the Madras High Court that the Registrar before whom a Co-operative Society files it suit, or its claim for enforcing a bond, is a court within the meaning of Section 195, of the Code of Criminal Procedure, for the Registrar to whom a dispute touching a debt due to a society by a member is referred has power to administer oaths, to require the attendance of all parties concerned and of witnesses, and to require the production of all books and documents relating to the matter in dispute, and the Registrar is required to give a decision in writing, and when it is given the decision may be enforced on application to the Civil Court having jurisdiction as if it were a decree of the court.

15. In Velayude Mudali and another v. Co-operative Rural Credit Society and others (AIR 1934 Mad 40), a single Judge of the Madras High Court, following the judgment in Thadi Subbi Reddi’s case, (AIR 1930 Mad 369) observed that a Registrar of Co-operative Societies acting under Section 14 of the rules framed under the Co-operative Societies Act is a Court, and the rule of lis nendens applied to the proceeding before the Registrar.

16. In Y. Mahabaleswarappa v. M. Gopalasami Mudaliar (AIR 1935 Mad 673) a Division Bench of the High Court of Madras held that an Election Commissioner appointed to decide a dispute with regard to municipal elections is a court within the meaning of Section 195 of the Code of Criminal Procedure. The Court, in that case, held that the Election Commissioner is a special tribunal to whom the power to make an inquiry relating to the rights of civil nature was entrusted by statute and he is required to deal with the matter in accordance with the procedure of a court. The procedure followed by the Election Commissioner was held to be similar to the procedure of the court since he was required to give a definitive judgment upon the matter in hand and this power was not conferred merely by extending the provisions of the Code of Civil Procedure. The court in that case observed at page 677 :

” …………….. we have to look, not to the source of tribunal’s authority, or to any peculiarity in the method adopted of creating it (though it is undoubtedly a consideration that it derives its powers mediately or immediately from the Crown) but to the general character of its powers and activities. If it has power to regulate legal rights by the delivery of definitive judgment and to enforce its orders by legal sanctions, and if it procedure is judicial in character in such matters as the taking of evidence and the administration of the oath then it is a ‘Court’.

The assumption made that an election dispute is a dispute relating to civil rights is, however, not correct, nor is it try to say that because there is an obligation to deal with the matters fairly and impartially and the procedure is assimilated to the procedure for the trial of civil dispute it necessarily makes a body invested with the power to decide the dispute, a ‘Court’.”

17. In Nand Lal Ganguli v. Khetra Mohan Ghose (ILR 45 Cal 585) it was observed that the word “Court” in Section 195, Code of Criminal Procedure, has a wider meaning than “Court of Justice” under Section 20 of the Penal Code, and includes a tribunal entitled to deal with a particular matter and authorised to receive evidence bearing thereon in order to enable it to arrive at a determination upon the question. On that account a Tribunal constituted by the Calcutta Improvement Act (Bengal Act V of 1911), as amended by the Calcutta Improvement (Appeals) Act, 18 of 1911 is a “Court” within the meaning of Section 195 of the Code of Criminal Procedure.

18. But the test which appealed to the Madras and the Calcutta High Courts in determining whether a tribunal was a court has not been accepted by this Court in Jagan Nath Prasad v. The State of Uttar Pradesh. It was held in that case that the Sales Tax Officer under the U.P. Sales Tax Act is not a “Court” within the meaning of Section 195 of the Code of Criminal Procedure, and a complaint for the prosecution of persons committing offences under Section 471, I.P. Code, may lie without a complaint by the Sales Tax Officer. In the view of the Court though the Sales Tax Officer was required to perform certain quasi-judicial functions and to act fairly and impartially he was not a part of the judiciary: he was merely an instrumentality of the State for purpose of assessment and collection of tax. The nature of the functions of a Sales Tax Officer and the manner prescribed for the performance showed that he could not be equated with a court.

19. Attention of course must be directed to Lalji Haridas v. State of Maharashtra and another where this Court took the view that an Income-Tax Officer exercising power under Section 37(1), (2) and (3) was exercising power in a judicial proceeding for the purpose of Sections 193, 196 and 228 Indian Penal Code. The Court, however, expressly observed that it was not necessary to decide the general question whether the Income-tax Officer was a “Court”, for Section 37(4) of the Income-tax Act makes the proceedings before the Income-tax Officer judicial proceedings for the purpose of Section 193, Indian Penal Code and accordingly the proceeding before him must be treated as a proceeding in a court for the purpose of Section 195(1) of the Code of Criminal Procedure.

20. Two other decisions may be referred to. In Shri Virindar Kumar Satyawadi v. The State of Punjab, this Court held that a Returning Officer action under Sections 33 and 36 of the Representation of the People Act, 1951, and deciding on the validity or otherwise of a nomination paper is not a “Court” within the meaning of Sections 195(1)(b), 476-B of the Code of Criminal Procedure. In Brijandan Sinha v. Jyoti Narain, this Court held that the Commissioner appointed under the Public Servant (Inquiries) Act, 37 of 1850, is not a “Court” within the meaning of Contempt of Courts Act, 1952. This Court has therefore definitely taken the view that a mere duty to act judicially either expressly imposed or arising by necessary implication of the nature of the duties required to be performed does not of itself make a tribunal judicial or quasi-judicial a “Court” within the meaning of Section 195, Code of Criminal Procedure.

21. The judgment of the High Court of Bombay in Hari Pandurang and another v. Secretary of State for India in Council, (ILR 27 Bom 424) in which the Court held that a tribunal crated under the City of Bombay Improvement Act, 1898, upon which powers were conferred to determined compensation payable under the Lan Acquisition Act, was not a “court” and was therefore free from the control and supervision of the High Court.

22. The decision of this court in Thakur Jugal Kishore Sinha v. Sitamarhi Central Co-operative Bank Ltd. and another, on which strong reliance was placed by counsel does not in our judgment assist him. The appellant in that case in an appeal before the Joint Registrar, Co-operative Societies, alleged that the Assistant Registrar in deciding a matter had discriminated against him and had adopted “double standards”. In proceedings under the Contempt of Courts Act the High Courts of Patna held the appellant guilty. An appeal was brought to this court and it was held that the appellant was rightly convicted. The court observed that the Assistant Registrar was functioning as a court in deciding the dispute in question. His adjudication was not based upon a private reference nor was his decision arrived at in a summary manner, but with all the paraphernalia of a court and the powers of an ordinary Civil Court of the land. But the question in that case was not whether the Registrar is a “court” within the meaning of Section 195(2) of the Code of Criminal Procedure. It is necessary also to observe that the provisions of the Bihar and Orissa Co-operative Societies Act, 1935, were not substantially the same as the provisions of the Maharashtra Co-operative Societies Act, 1960, which fall to be considered in this case. It may be pointed out that Mitter, J., speaking for the court observed :

“It must be borne in mind that we do not propose to lay down that all Registrars of all Co-operative Societies in the different States are “courts” for the purpose of the Contempt of Court Act, 1952. Our decision is expressly limited to the Registrar and the Assistant Registrar like the one before us governed by the Bihar and Orissa Co-operative Societies Act.”

23. Counsel for the appellants contended that this Court has dissented from the decisions in Malabar Hills Co-operative Housing Society Ltd., Bombay v. K. L. Gauba and others , on which the judgment under appeal in this case is founded. In K.L. Gauba’s case, the High Court of Bombay has held that a nominee of a Registrar to whom a dispute is sent for decision under Section 54(1) of the Bombay Co-operative Societies Act, 1925, is not a court within the meaning of Section 3(1) of the Contempt of Courts Act, 1952. It is claimed that this decision has been expressly overruled by this Court in Thakur Jugal Kishore Sinha’s case. The assumption made by counsel for the appeals that the decision of the Bombay High Court in Malabar Hills Co-operative Housing Society Ltd’s. case was overruled is, however, not correct. This court set out the facts in some details and observed that the decision of the Bombay High Court that the proceedings before the nominee of the Registrar under Bombay Act were merely in the nature of arbitration proceedings did not compel them to hold that the Assistant Registrar of Co-operative Societies under the Bihar and Orissa Co-operative Societies Act, 1935, was not a “court”. It was expressly pointed out that in the Bombay case the matter was referred to the Assistant Registrar as nominee of the Registrar who had to act as an arbitrator and to make an award.

24. After carefully considering the powers conferred and the source of authority of the nominee, we have no doubt that the nominee exercising power to make an award under Section 96 of the Maharashtra Co-operative Societies Act, 1960, derives his authority not from the statute but from investment by the Registrar in his individual discretion. The power so invested is liable to be suspended and may be withdrawn. He is therefore not entrusted the judicial power of the State : he is merely an arbitration authorised within the limits of the power conferred to adjudicate upon the dispute referred to him.

25. The plea that the complaint was not maintainable without the sanction of the Registrar has no substance. By Section 146 of the Maharashtra Co-operative Societies Act, in so far as it is material it is provided :

“It shall be an offence under this Act if –

X X X X

(p) any officer or member of a society destroy, mutilates, tampers with, or otherwise alters, falsifies or secretes or is privy to the destruction, mutilation, alternation falsification or secreting of any books papers or securities or makes, or is privy to the making of any false or fraudulent entry in any register book of account or document belonging to the society.”

By the Explanation it is enacted that “for the purpose of this section, an officer or a member referred to in this section shall include past officer and past member as the case may be”. By Section 148(3) it is provided :

“No prosecution under this Act shall be lodged except with the previous sanction of the State Government in the case of an offence under clause (b) of Section 146 and of the Registrar in the case of any other offence under this Act. Such sanction shall not be given, except after hearing the party concerned by an officer authorised in this behalf by the State Government by a general or special order.”

It was urged that the ingredient of the offences of forgery punishable under Section 465, I.P. Code and of offence under Section 146(p) are in substance the same, and the general provision is on that account pro tanto repealed, and in any event in view of the provision of Section 148(3) no prosecution may be initiated in respect of those offences otherwise than with the previous sanction of the Registrar. Section 147 which prescribes punishment for offences under Section 146, by clause (p) provides :

“Every society, officer or past officer, member or past member, employee or past employee of a society or any other person who commits an offences under Section 146 shall on conviction, be punished, –

(p) if it is an offence under clause (p of that Section with imprisonment for a term which may extend to two years or which fine, or with both,”

Under Section 146(p) an offence may be committed by (1) an Officer or member or by a past officer or past member; (2) such officer or member or past officer or past member must have destroyed, mutilated, tampered with or otherwise altered, falsified or secreted; (3) or must have been privy to the destruction, mutilation, alternation, falsification or secreting; (4) or must have made or he makes or is privy to the making of any false or fraudulent entry in any register, book of account or document belonging to the society. The clause does not make intention an ingredient of the offence. Again a person who is privy to the destruction, mutilation, alternation, falsification or secreting of books or making any false or fraudulent entry in any register, book of account or document belonging to the society is make punishable. Even destruction of books of account is penalised under Section 146. Section 465, I.P. Code penalises the offence of forgery. Sections 466, 467, 468 and 469 are more serious offences of forgery when committed in respect of record of court or of public registers, valuable securities, wills or for cheating or harming reputation of persons. Section 477, I.P. Code, penalties dishonest cancellation, destruction, defacement, or attempts to cancel, destroy or deface or secret or attempts to secrete any document which is or purports to be a will, or an authority to adopt a son, or any valuable security, or mischief in respect of such document. Section 477-A penalises falsification of accounts by a clerk, officer or servant or by a person employed in the capacity of a clerk, officer or servant. The offence of forgery and its allied offence may be committed if a false document is made with intent to cause damage or injury to public or any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract or with intent to commit fraud or that fraud may be committed, (Section 463). In Order to attract Section 463 I.P. Code, there must, therefore, be making of a false document with the intention mentioned in that section. By Section 464 it is provided :

“A person is said to make a false document –

Firstly. – Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made signed sealed or executed, or at a time at which he knows that was not made signed, sealed or executed; or

Secondly. – Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration; or

Thirdly. – who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or the nature of the alteration”.

Making of a false document by a person in all the three clauses must be done dishonestly or fraudulently and with the necessary intention or knowledge contemplated by the three clauses.

26. Section 146 of the Maharashtra Co-operative Societies Act, 1960, does not make any such intention as is referred to in Sections 463 and 464, I.P. Code in ingredient of the offence it also renders a person who is merely privy to the destruction, mutilation, alternation, falsification or secreting or to the making of any false or fraudulent entry in any register, book of account or document belonging to the society liable to be punished under Section 146(p). The offence may be committed under Section 146 only by an officer or member-past or present-of the society. even destruction or secreting of a document or security is penalised under Section 146 of the Act.

27. We are unable to accept a contention that these two Section 146(p) of the Maharashtra Co-operative Societies Act and Section 465, I.P. Code – are intended to deal with same offence. It is true that certain acts may fall within both the sections. For instance, tampering with or falsifying any register, book of account or security, or making any false or fraudulent entry in the register, book of account or document belonging to the society, may when done with the requisite intention mentioned in Section 464 read with Section 463, I.P. Code, be also an offence under Section 146(p) of the Maharashtra Co-operative Societies Act. But that, in our judgment, is not a ground for holding that Section 465, I.P. code and the related offences, were intended to be pro tanto repealed by the enactment of Section 146(p) of the Maharashtra Co-operative Societies Act. When the Indian Penal Code seeks to impose in respect of offences under Section 477, imprisonment which may extend to imprisonment for life or with imprisonment up to a period of seven years for an offence under Section 477-A it would be difficult to hold that when committed by an officer or member of a society the maximum punishment which can be imposed by virtue of Section 146(p) would be three years rigorous imprisonment only.

28. This court in Om Prakash Gupta v. State of Uttar Pradesh ((1957) SCR 423), held that the offences under Section 409, I.P. Code and Section 5(1)(c) of the Prevention of Corruption Act, are distinct and separate offences and Section 409, I.P. Code, is not repealed by Section 5(1)(c) of the Prevention of Corruption Act.

29. In a recent judgment of this court in T. C. Ballish v. T. S. Rangachari (Cr. Ap. Nos. 130-132 of 1968, decided on December 12 ,1968), we had occasion to consider whether Section 177, I.P. Code, was repealed by Section 52 of the Indian Income-tax Act. It was pointed out that in considering the problem the court must consider the true meaning and effect of the two Acts, and unless there is repugnancy or inconsistency between the two enactments or that the two enactments cannot stand together they must be treated as cumulative.

30. It is clear from a perusal of Section 146(p) of the Maharashtra Co-operative Societies Act, 1960 and Sections 463 and 464, I.P Code, that they are two distinct offence which are capable of being committed with different intentions by different sets of persons and it could not be contemplated that the Legislature of the State of Maharashtra intended to repeal pro tanto the provisions of Section 465, I.P. Code, by enactment of Section 146 of the Maharashtra Co-operative Societies Act.

31. It is unnecessary in the circumstances to consider the question whether the Maharashtra State Legislature was competent to repeal the provisions of Section 465, I.P. Code. The law relating to Co-operative Societies may be enacted in exercise of the power under List II, Entry 32 of the Seventh Schedule to the Constitution, but if Section 146 is directly intended to trench upon a provision of the Indian Penal Code-falling within List II, Entry 1, sanction of the President under Article 254(2) would apparently be necessary.

32. Both the contentions raised by counsel for the appellants fail. The appeal is dismissed.


Equivalent citations: AIR 1969 SC 724, (1969) 71 BOMLR 696, 1969 CriLJ 1064, (1969) 1 SCC 167, 1969 3 SCR 185

Sadhvi Pragyasingh Chandrapal Singh Thakur NIA Court Order

Accused   No.1   Pragyasingh   Chandrapalsingh   Thakur     @   Swami Purna   Chetnanand     Giri,   No.4   Major     Ramesh   Shivji   Upadhyay,     No.5 Sameer Sharad Kulkarni, No.6 Ajay @ Raja Eknath Rahirkar, No.9 Lt. Col. Prasad Shrikant Purohit, No.10 Sudhakar Udaybhan Dhar Dwivedi @     Swami   Amrutanand   Dev     Tirth   and   accused     No.11   Sudhakar Onkarnath   Chatruvedi     are   hereby   discharged     from   the   offences punishable   under     sections 3(1)(i),   3(1)(ii),     3(2),   3(4),   3(5)     of   the Maharashtra   Control     of   Organized   Crime     Act,   1999. They     are   also discharged from the offences punishable under section 17, 20 and 23 of the Unlawful     Activities   (Prevention)   Act,     1967 as   well     as   offence punishable under section 3, 5 and 25 of Arms Act 1959.

Read the whole Judgment :

Sadhvi Pragyasingh Chandrapal Singh Thakur NIA Court Order

Date of Pronouncement of Judgment :  27.12.2017

 

Mani Vs. State of Kerala and Others-1/4/2019

SUPREME COURT OF INDIA JUDGMENTS

In view of a sudden fight without any premeditation, the conviction of the appellant for an offence under Section 302 is not made out. The cause of death of the deceased is knife blow on the chest of the deceased-Soman. Such injury is with the knowledge that such injury is likely to cause death, but without any intention to cause death. Thus, the death of Soman is a culpable homicide not amounting to murder as the death has occurred in heat of passion upon a sudden quarrel falling within Exception 4 of Section 300 of IPC. Therefore, it is an offence punishable under Section 304 Part I, IPC.

The prosecution witnesses have deposed that the accused or the victims did not have any personal enmity except political differences. The appellant was suddenly confronted with the victims and in the fight ensued in which the injuries came to be inflicted upon the deceased and other victims.

  • Right of Private defense has not been established at the same time a case for murder also not established.
  • The entire prosecution case is based upon injured witnesses.
  • No witness from the locality has been examined.
  • witnesses have been injured but the injuries are not serious.

Date: April 1, 2019

Act: Section 302 read with 34 IPC

SUPREME COURT OF INDIA

Mani Vs. State of Kerala and Others

[Criminal Appeal No. 540 of 2019 arising out of S.L.P. (CRL.) No. 7378 of 2016]

State of Kerala Vs. Rathnakumar and Others

[Criminal Appeal No. 541 of 2019 arising out of S.L.P. (CRL.) No. 9466 of 2016]

Hemant Gupta, J.

1. The challenge in the present appeals is to a judgment dated 02.02.2016 maintaining conviction of the appellant-Mani for an offence under Section 302 IPC, whereas, conviction of the other accused i.e. accused No.2-Rathnakumar, 3-Praveen and 4-Selvaraj was maintained for offences under Sections 324 and 341 read with 34 IPC while acquitting the said accused for an offence under Section 302 IPC.

2. Criminal Appeal No. 540 of 2019 is against the conviction of accused No. 1 for an offence under Section 302 IPC, whereas, Criminal Appeal No. 541 of 2019 is against the acquittal of accused No.2- Rathnakumar, 3-Praveen and 4-Selvaraj (Respondent Nos. 2-4) under Section 302 read with 34 IPC. The parties herein shall be referred to as before the Trial Court.

3. PW2-Vishwanathan son of Kunchu lodged a First Information Report at about 11.00 PM on 28.09.2005 in respect of an incident which occurred same day at about 8.10 PM on a slope near Rosy School, Chozhiyamkod. The statement is that the Accused 1 to 4 who are BJP sympathisers, in connivance and conspiracy with each other with the intention and preparation to kill the complainant and others who are CPM sympathisers, due to political enmity, collected dangerous weapons of knife, Vadival sword and iron rod, came in motorcycles in front of Rosy School, Chozhiyamkod. They illegally stopped the complainant and his friends. The accused No.1-Mani stabbed Soman, whereas, accused No.2-Rathnakumar attacked complainant with Vadival sword on his face and accused No.3- Praveen gave beatings to Ashraf PW3 with iron rod.

4. Shri V. Pazhanimala, A.S.I., Vadakkancheri Police Station recorded such statement and took over investigations. He recorded the statement of Vishwanathan-PW2 under Section 161 Criminal Procedure Code1. In his police statement, he stated that at about 8.00 PM on 28.09.2005 he along with (2) Kabir son of Muhammed, (3) Ashraf son of Sheri, (4) Soman son of Appunni, (5) Rajesh son of Karuman, (6) Anil Kumar son of Velayudhan, (7) Sajeesh and (8) Sanoj sons of Kumaran Vadukathodiyil were standing near the Mangalam old post office. They were talking about success of the party in the elections. They received information that BJP people are creating troubles at Chozhiyamkod. Eight of them moved towards the Chozhiyamkod.

When they reached the slope of the road in front of Rosy School, they saw two motorcycles coming from opposite side. Both the motorcycles stopped. Under the light of torch, they found that the four accused were armed with Vadival swords, knives and iron rod and came running towards them. Accused 1-Mani shouted that who is CPM worker, cut and kill him and he stabbed Soman on his chest with knife. He went to stop him, then accused No. 2-Rathnakumar hit him with Vadival sword but he withdrew his head and sword landed on his right cheek.

The second attack landed on his nose. He saw accused No. 3-Praveen coming to Ashraf PW3 with a long thing in his hand. He stated that all eight of them were injured. On alarm being raised Manikandan son of Madhavan, Vadakkethara Puzhakkal Parambu and Siju sons of Chamunni, Vadukathodi came running but the assailants ran away. Injured were taken to Hospital in the ambulance. Doctor reported that Soman had been brought dead, whereas, he and Rajesh had received grievous injuries. On completion of investigation, seven persons were made to stand trial including three Vinod, Mohanan and Selvaraj charged with offence under Section 212 read with 34 IPC. These three were later acquitted of the charges by the learned Trial Court itself.

5. The learned Trial Court convicted accused Nos. 1 to 4 to undergo imprisonment for life and also sentenced to undergo simple imprisonment for one month for an offence under Section 341 read with 34 IPC and also rigorous imprisonment for a period of six months under Section 324 read with 34 IPC by its judgment dated 24.11.2011.

6. The entire prosecution case is based upon injured witnesses examined as PW2-Vishwanathan, PW3-Ashraf Ali, PW10-Rajesh and PW13-Anil Kumar. The argument of learned senior counsel for the appellant-Mani is that the appellant has received injury in the occurrence on 28.09.2005 as is made out from the Injury Report as Ex. D-2, wherein, he has stated that at about 7.30 PM, he was beaten with stick by PW2-Vishwanathan, Muhammed Ali, Manikandan, PW3-Ashraf and about thirty other persons. The injury is lacerated wound 5 cms on forehead with fresh bleeding and contusion. It is thus contended that the appellant had acted in right of private defence, therefore, conviction of the appellant for an offence under Section 302 cannot be sustained.

7. It is argued that as per the prosecution case itself, the victims were eight in number who were proceeding towards Chozhiyamkod side on being informed that there is disturbance at Chozhiyamkod as sari of one of the BJP workers caught fire in the crackers bursted while celebrating victory of CPM in Panchayat elections. However, it is argued that there is no evidence on the part of the prosecution that there was any skirmish at Chozhiyamkod. No witness from the above said locality has been examined. The alleged eight victims were on their way to Chozhiyamkod as per their statements. It is argued that the accused were riding motorcycles unmindful of the fact that the victims’ group is proceeding towards Chozhiyamkod. Since, the victims were in large number and suddenly confronted accused, therefore, the appellant has only tried to save himself.

8. It is argued in the alternative that even if benefit of right of private defence is not given to the appellant, it was a case of sudden fight without any premeditation and therefore, conviction of the appellant for the offence under Section 302 cannot be sustained. It is a case for conviction for offence under Section 304 Part II.

9. On the other hand, learned senior counsel for the State argued that all the injured witnesses are consistent that it is on the exhortation of the appellant- Mani, they have attacked the victims. The learned senior counsel for the State also submitted that the accused Nos. 2 to 4, were part of the assailants who attacked the victims with weapons like Vadival sword, knife and iron rod. It is a case of common intention as all the accused were coming on two motorcycles together, inflicted injuries and then ran away together. The common intention is required to be inferred on the basis of circumstances which clearly proves that the accused had the intention of murderous assault on the victims.

10. It is argued that the common intention may arise at the spur of the moment; therefore, it is not necessary that when the accused reached near the Rosy School, they may not have common intention but when they saw the victims, they decided to assault the victims and such attack is by framing common intention.

11. We find that the statement of the witnesses in respect of injuries caused is not consistent. Though all the witnesses have consistently deposed that Mani has stabbed Soman deceased and he exhorted other to attack. The statement to the Police by PW2-Vishwanathan is that they received the information that the accused are creating trouble at Chozhiyamkod side. While appearing as PW2, Vishwanathan deposed that two-three persons came and told that BJP sympathisers are creating trouble. In the cross-examination, PW2 admitted that incident of “sari burning” is a hearsay.

PW3-Ashraf Ali deposed that when they were standing near the slope of Rosy School, two-three persons from Chozhiyamkod came and told that the flag of BJP is missing and BJP people are creating trouble. They were walking to the said spot to ascertain as to what the problem was, when they saw two bikes coming from the west direction. But no person has been examined in respect of trouble being created by any person at Chozhiyamkod either on account of burning of sari or of missing of BJP flag.

12. In the First Information Report, PW 3-Asraf is said to be assaulted with iron rod by Accused 3-Praveen; whereas the Accused 2- 6 Rathnakumar is said to have attacked complainant with Vadival sword. But in evidence, PW3-Ashraf Ali deposed that Accused 2-Rathnakumar hit him on his nose, left hand and left shoulder, whereas, accused 4- Selvaraj is said to have hit him with a cricket stump.

13. Accused 2-Rathnakumar is said to have inflicted injury on PW2- Vishwanathan but Rathnakumar (A2) is said to have caused injury to PW3-Ashraf Ali. In the First Information Report, there is no allegation that accused 4-Selvaraj had a cricket stump in his hand.

14. PW10-Rajesh deposed in the same manner as made by other two witnesses except that he deposed that accused No. 1-Mani, accused No. 3-Praveen and accused No.2-Rathnakumar had knives in their hands and Selvaraj had a cricket stump in his hand. Accused 3-Praveen is said to have stabbed him using knife in his hand, on left hand and index finger and chest also and when he turned, he stabbed on the back and on the left shoulder as well. He did not know whether BJP people knew that the victims were standing at the place of occurrence.

15. PW13-Anil Kumar deposed that accused 2-Rathnakumar had knife in his hand and caused injury on his left forehead. Accused 4- Selvaraj gave him beatings with cricket stump. On the basis of such evidence and Post-Mortem Certificate Ex. P-1 proved by PW8-Dr.P.C. Ignatius, the High Court held that there is no reason to convict accused Nos. 2-4 with the aid of Section 34 IPC except that there was commotion in which victims were injured. The High Court placed reliance upon Supreme Court judgments reported as Dharam Pal and Others v. State of Haryana2 and Nand Kishore v. State of Madhya Pradesh3.

16. While appreciating the evidence of the four injured witnesses, the High Court returned findings that such witnesses have already been decided to go to Chozhiyamkod side, hearing about the trouble created by the BJP sympathisers, but the said fact will not mean that the accused carried common intention to do away with the members of the other group. The High Court recorded the following findings:

“54. It is extremely difficult to accept the finding of the court below. Relying on the principles laid down in the various decisions referred to above and applying the test laid down therein, it is difficult to come to the conclusion that the fatal stab injury was inflicted as in furtherance of the common intention shared by the accused persons.

55. First of all, the accused persons had no notice that the victims would come to Chozhiyamkod to find out what the commotion created by the BJP sympathisers about and much less they had any knowledge about Soman coming in that group. It may be true that the two groups were at loggerheads. But that is far from saying that one of the groups always carries a common intention to do away with the members of the other group.

56. Even going by the prosecution sequence of events, the stab inflicted on Soman was a spontaneous and sudden act committed by the first accused and there seems no materials to come to the conclusion that the said act committed by the first accused was in furtherance of the common intention shared by the other accused persons. Probably, from the evidence, it would appear that the other accused persons namely, accused Nos. 2, 3 and 4 did not anticipate such an act from the first accused and they were taken aback by the said act of the first accused. It would appear that the accused persons who had far outnumbered by the victims’ group might have apprehended assault from them and that is probably the reason why PWs 2, 3, 10 and 13 would say that soon the members of the assailants group began brandishing the knives to keep the victims at bay. This Court is not omitting to note the fact that the injuries were inflicted on PWs 2, 3, 10 and 13.

*** *** ***

59. It is extremely difficult to accept the finding of the court below that the act committed by the first accused of inflicting a fatal stab on Soman was in furtherance of the common intention of accused Nos. 1 to 4 for reasons already stated. The conviction of accused Nos. 2 to 4 by taking aid of Section 34 of IPC in the facts and circumstances of the case seems to be a misplaced one.”

17. The High Court also found that the infliction of injuries on the injured witnesses cannot be said to be in furtherance of common intention, as it cannot be said that initial injury by the appellant-Mani is a consequence of the common intention shared by the accused. The High Court found that though the witnesses have been injured but the injuries are not serious.

18. We do not find any error in the order passed by the High Court that there was no common intention in causing death of Soman. The prosecution has not produced any evidence showing that the accused were present at the place of occurrence at Chozhiyamkod or that they were part of the group creating trouble at that place. There is no evidence that any incident occurred at that place either of burning of sari due to fire crackers or of missing of flag. Therefore, genesis to the dispute has not been proved by the prosecution.

19. The victims were eight in number and in a jubilant mood to celebrate the victory of their party in the panchayat elections. They decided to go towards Chozhiyamkod side. The accused suddenly came from the opposite direction on two motorcycles. One of the accused received injuries as well which fact is admitted by one of the witnesses PW2-Vishwanathan also.

20. Be that as it may, the fact remains that all the injured witnesses have consistently deposed the death of Soman by the appellant. The injury received by the appellant is not serious, therefore, he could not have attacked the deceased on chest which is vital part, as such injury is likely to cause death. Therefore, the appellant is not entitled to right of private defence which does not extend to inflict more harm than it is necessary in exercise of right of private defence. Therefore, the plea that the appellant acted in his private defence is not made out.

21. However, the appellant-Mani came from west direction at the place of occurrence riding on a motorcycle. The accused had no knowledge or information that the victims are moving towards Chozhiyamkod. The prosecution witnesses have deposed that the accused or the victims did not have any personal enmity except political differences. The appellant was suddenly confronted with the victims and in the fight ensued in which the injuries came to be inflicted upon the deceased and other victims.

22. In view of sudden fight without any premeditation, the conviction of the appellant for an offence under Section 302 is not made out. The cause of death of the deceased is knife blow on the chest of the deceased-Soman. Such injury is with the knowledge that such injury is likely to cause death, but without any intention to cause death. Thus, the death of Soman is a culpable homicide not amounting to murder as the death has occurred in heat of passion upon a sudden quarrel falling within Exception 4 of Section 300 of IPC. Therefore, it is an offence punishable under Section 304 Part I, IPC.

23. It is pointed out that the appellant has undergone more than seven years of actual imprisonment. Therefore, keeping in view the background and the circumstances in which the occurrence happened, we find that the sentence imposed on the appellant is warranted to be modified to as already undergone while maintaining fine of Rs. 20,000/-.

24. In view of the above discussion, Criminal Appeal No. 540 of 2019 filed by the appellant-Mani is partly allowed and Criminal Appeal No. 541 of 2019 filed by the State of Kerala is dismissed.

J. (Dr. Dhananjaya Y. Chandrachud)

J. (Hemant Gupta)

New Delhi,

April 1, 2019.


1 Code

2 AIR 1978 SC 1492

3 AIR 2011 SC 2775

As between civil and criminal proceedings, the criminal matters should be given precedence.

SUPREME COURT OF INDIA JUDGMENTS

A civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody conceded has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial.

(1954) AIR(SC) 397 : (1954) CriLJ 1019 : (1954) 67 MLW 625 : (1954) SCA 576 : (1954) SCJ 458 : (1954) SCR 1144

SUPREME COURT OF INDIA

FULL BENCH

( Before : Mehr Chand Mahajan, C.J; Vivian Bose, J; Sudhi Ranjan Das, J; Ghulam Hasan, J; B. K. Mukherjea, J )

M.S. SHERIFF — Appellant

Vs.

THE STATE OF MADRAS AND OTHERS — Respondent

Decided on : 18-03-1954

Criminal Procedure Code, 1898 (CrPC) – Section 195(3), Section 476
Penal Code, 1860 (IPC) – Section 193, Section 344

JUDGMENT

Bose, J.—The question in this case is whether an appeal lies to this court u/s 476B of the Criminal Procedure Code from an order of a Division Bench of a High Court directing the filing of a complaint for perjury.

2. Two persons, Govindan and Damodaran, filed petition u/s 491 of the Criminal Procedure Code for release claiming that they had been illegally detained by two Sub-Inspectors of Police who are the appellants before us. Govindan said he was being detained by one Sub-Inspector and Damodaran said he was being detained by the other. Both the Sub-Inspectors said that the petitioners were not in their custody. The first Sub-Inspector, who was concerned with Govindan, said that Govindan had never been arrested by him and had not been in his custody at any time. The other denied that Damodaran was in his custody. He admitted that he had arrested him at one time but said that he had been released long before the petition. Each swore an affidavit in support of his return. In view of this conflict between the two sets of statements the High Court directed the District Judge to make an enquiry.

3. Considerable evidence was recorded and documents were filed and the District Judge reported that in his opinion the statements made by the two Sub-Inspectors were correct. The High Court disagreed and, after an elaborate examination of the evidence, reached the conclusion that the petitioners were telling the truth and not the Sub-Inspectors. The petitioners were however regularly arrested after their petitions and before the High Court’s order; one was released on bail and other was remanded to jail custody by an order of a Magistrate. Accordingly their petitions became infructuous and were dismissed.

4. After this, the petitioners applied to the High Court u/s 476 of the Criminal Procedure Code and was asked that the Sub-Inspectors be prosecuted for perjury u/s 193, Indian Penal Code. The applications were granted and the Deputy Registrar of the High Court was directed to make the necessary complaints.

5. The Sub-Inspectors thereupon asked for leave to appeal to this court. Leave was refused on the ground that no appeal lies, but leave was granted under article 132 as an interpretation of articles 134(1) and 372 of the Constitution was involved. The Sub-Inspectors have appealed here against that order as also against the order u/s 476. In addition, as an added precaution, they have filed a petition for special leave to appeal under article 136(1).

6. The first question we have to decide is whether there is a right of appeal. That turns on the true meaning of section 476B of the Criminal Procedure Code read with section 195(3). The relevant portion of the former reads thus :-

“Any person…….. against whom…… a complaint has been made” [under section 476] “may appeal to the court to which such former court is subordinate within the meaning of section 195(3)….”

7. The latter section reads –

“For the purposes of this section, a court shall be deemed to be subordinate to the court to which appeals ordinarily lie from the appealable decrees or sentences of such former court…..”

8. The rest of the section does not concern us.

9. Two things are evident. First, that a right of appeal has been expressly conferred by section 476B provided there is a higher forum to which an appeal can be made; and second, that the appellate forum has been designated in an artificial way. The appeal lies to the court to which the former court is subordinate within the meaning of section 195(3). But “subordinate” does not bear its ordinary meaning. It is used as a term of art and has been given a special meaning by reason of the definition in section 195(3) : a fiction has been imposed by the use of the word “deemed”. We have accordingly next to examine the content of the fiction.

10. The section says that the court making the order u/s 476 shall be deemed to be subordinate to the court.

(a) to which appeals ordinarily lie

(b) from the appealable decrees or sentences of such former court.

11. Now the former court in this case is a Division Bench of the High Court. The only court to which an appeal ordinarily lies from the appealable decrees and sentences of a Division Bench of a High Court is this court. Therefore, a Division Bench of a High Court is a court “subordinate” to this court within the meaning of section 195(3); accordingly an appeal lies to this court from an order of a Division Bench u/s 476.

12. It was contended that there is no ordinary right of appeal to this court and that such rights as there are those expressly conferred by the Constitution in a very limited and circumscribed set of circumstances, therefore, such appeals as lie to this court cannot be said to lie “ordinarily”.

13. We do not agree. Such an argument concentrates attention on the word “ordinarily” and ignores the words “appealable decrees or sentences”. Before we can apply the definition we have first to see whether there is a class of decrees or sentences in the court under consideration which are at all open to appeal. If there are not, the matter ends and there is no right of appeal u/s 476-B. If there are, then we have to see to which court those appeals will “ordinarily” lie. It is evident that the only court to which the appealable decrees and sentences of a Division Bench of a High Court can lie is the Supreme Court. There is not other court to which an appeal can be made. It follows that is the ordinary course in the case of all appealable decrees and sentences and that consequently this is the court to which such appeals will ordinarily lie.

14. As there is a right of appeal we have next to consider the matter on its merits and there the only relevant consideration is whether “it is expedient in the interests of justice” than enquiry should be made and a complaint filed. That involves a careful balancing of many factors.

15. The High Court has scrutinised the evidence minutely and has disclosed ample material on which a judicial mind could reasonably reach the conclusion that there is matter here which requires investigation in a criminal court and that it is expedient in the interests of justice to have it enquired into. We have not examined the evidence for ourselves and we express no opinion on the merits of the respective cases but after a careful reading of the judgment of the High Court and the report of the District Judge we can find no reason for interfering with the High Court’s discretion on that score. We do not intend to say more than this about the merits as we are anxious not to prejudge or prejudice the case of either side. The learned Judges of the High Court have also very rightly observed in their order u/s 476 that they were not expressing any opinion on the guilt or innocence of the appellants.

16. We are informed at the hearing that the two further sets of proceedings arising out of the same facts are now pending against the appellants. One is two civil suits for damages for wrongful confinement. The other is two criminal prosecutions u/s 344, Indian Penal Code for wrongful confinement, one against each Sub-Inspector. It was said that the simultaneous prosecution of these matters will embarrass the accused. But after the hearing of the appeal we received information that the two criminal prosecutions have been closed with liberty to file fresh complaints when the papers are ready, as the High Court records were not available on the application of the accused. As these prosecutions are not pending at the moment, the objection regarding them does not arise but we can see that the simultaneous prosecution of the present criminal proceedings out of which this appeal arises and the civil suits will embarrass the accused. We have therefore to determine which should be stayed.

17. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.

18. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift an sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might made some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered u/s 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.

19. The result is that the appeal fails and is dismissed but with no order about costs. Civil Suits Nos. 311 of 1951 to 314 of 1951, in the Court of the Subordinate Judge, Coimbatore, will be stayed till the conclusion of the prosecution u/s 193, Indian Penal Code. As the plaintiffs there are parties here, there is no difficulty about making such an order.

20. The petition for special leave is dismissed.

22. Petition for special leave dismissed.


 

KAMALADEVI AGARWAL Vs. STATE OF WEST BENGAL AND OTHERS

SUPREME COURT OF INDIA JUDGMENTS

Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings.

(2001) AIR(SC) 3846  : (2002) 1 SCC 555 : (2002) SCC(Cri) 200 : (2001) SCR 284 : (2001) 7 Supreme 627 : (2002) WLC 85

SUPREME COURT OF INDIA

DIVISION BENCH

( Before : R. P. Sethi, J; M. B. Shah, J )

KAMALADEVI AGARWAL — Appellant

Vs.

STATE OF WEST BENGAL AND OTHERS — Respondent

Decided on : 17-10-2001

Constitution of India, 1950 – Article 136
Criminal Procedure Code, 1973 (CrPC) – Section 200, Section 482

JUDGMENT

Sethi, J.—Leave granted.

2. Aggrieved by the impugned order of the High Court quashing her complaint and the order of the Magistrate issuing the process against the respondents for the offences u/s 465 468 471 and 120B of the Indian Penal Code, the appellant has approached this Court by way of this appeal for setting aside the order of the High Court with direction to the Magistrate for proceeding with the complaint in accordance with law. It is submitted that the High Court of Calcutta has passed the impugned order in exercise of its power u/s 482 of the Code of Criminal Procedure completely ignoring the mandate of law as settled by various pronouncements of this Court and other High Court in the country.

3. The complainant claims to be a partner of M/s. Chandmal Gangabishan, a firm registered under the Partnership Act and carrying on business of Bhujia and other allied products with the trade mark HALDIRAM BHUJIAWALA. According to the averments made in the complaint, the partnership business was initially commenced in the year 1956 with four partners, namely, Ganga Bishan Agarwal, Moolchand Agarwal, Rameshwarlal Agarwal and Satidas Agarwal. Rameshwar Aggarwal retired from the firm in the year 1958. The firm was reconstituted by admitting Shri Shivkishan Aggarwal as partner in place of the retiring partner. They started using the brand name HALDIRAM BHUJIAWALA in the year 1965. The appellant was admitted as a partner of the said firm on 31st October, 1969. An application for registration of trademark of HALDIRAM BHUJIAWALA and Logo HRB was filed with the appropriate authority by all the partners on 29th December, 1972. The said application was advertised inviting objections. Opposition proceedings were commenced at the instance of one Madanlal on 12th January, 1976 which was rejected on 16.4.1980 and the trademark was registered on 27th January, 1981 in the name of the firm, of which the appellant was a partner. The appellant alleged that when in the first week of June, 1999 she went to Delhi to attend her ailing son Ashok Kumar Aggarwal, found him to be suffering from serious metal depression on account of serious nervous breakdown. After inquiries and persuasions her son told the appellant in July, 1999 that he had suffered mental shock upon closure of his opened shop in the year 1991 at Delhi by reason of the order of injunction passed by the Court of law. He disclosed that the said injunction had been granted against him on the ground that the partnership of which the appellant was also a partner stood dissolved on 16.11.1974. She informed her son of not having signed any deed of dissolution of the partnership. When Ashok Kumar Aggarwal handed over to the appellant a xerox copy of the deed of dissolution, she was shocked to know that her signatures had been forged. Upon scrutiny it appeared that the signatures, purporting to be of Gangabishan Aggarwal and Moolchand Aggarwal were also not genuine and had been forged besides her signatures. She alleged that Accused Nos. 1 to 4 have brought into existence the self-forged deed of dissolution for their personal gains and to the detriment of the partners of the firm of M/s. Chandmal Gangabishan. She referred to number of circumstances in her complaint to show that the forgery had been committed by the respondent-accused. In para 22 of the complaint, the appellant catalogued a number of instances allegedly showing the forgery by the respondents.

4. The trial Magistrate received the complaint on 21st January, 2000 and fixed the next date on 7th February, 2000 for examination of the complainant and her witnesses in terms of Section 200 of the Code of Criminal Procedure. On request of the appellant, the case was adjourned to 10th March, 2000 when she appeared before the Magistrate along with her three witnesses out of whom one was hand-writing expert. After recording their statement, the case was adjourned and ultimately the Trial Magistrate, vide his order dated 5.4.2000, found that the appellant had made cut a prima facie case u/s 465 467 468 471 and 120B of the Indian Penal Code against all the accused persons and, therefore, issued summons for their presence on the next date fixed for 19th June, 2000. Instead of appearing before the Trial Magistrate and contesting the case, the respondents chose to approach the High Court by way of a petition u/s 482 of the Code of Criminal Procedure praying for quashing of the proceedings initiated and process issued against them. Their application was allowed vide the order impugned, hence the present appeal.

5. Mr. V.A. Mohta, Sr. Advocate appearing for the appellant submitted that the impugned judgment is in conflict with the various judgments of this court. It is submitted that merely because a civil action is pending between the parties can be no ground to quash the proceedings as between the civil and criminal proceedings, the criminal matters should be given precedence and that only because the genuineness of the documents is required to be determined in both the proceedings, the High Court was not justified in quashing the proceedings. It is submitted that the nature of criminal proceedings and the onus of proof required in such proceedings being different than the proceedings in the civil suit, the High Court committed a mistake by quashing the proceedings.

6. Per Contra Shri U.R. Lalit, Sr. Advocate supported the judgment of the High Court and submitted that besides law, propriety demanded that when a higher court was seized of the matter, though in civil proceedings, magistrate should have not proceeded with the matter by issuance of process against the respondents. Relying upon some judgments of this Court, the learned counsel has contended that the pendency of the proceedings before the Trial Magistrate would amount to abuse of the process of the court. The impugned order is stated to have been passed to secure the ends of justice. Referring to some judgemnts, the attending circumstances and the evidence led in the case, the learned counsel has tried to impress upon us that the order impugned is just and reasonable which does not require interference by this Court in exercise of its power under Article 136 of the Constitution of India.

7. This Court has consistently held that the revisional or inherent powers of quashing the proceedings at the initial stage should be exercised sparingly and only where the allegations made in the complaint or the FIR, even if taken it at the face value and accepted in entirety, do not prima facie disclose the commission of an offence. Disputed and controversial facts cannot be made the basis for the exercise of the jurisdiction. In R.P. Kapur Vs. The State of Punjab, this Court held:

“It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court of otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceedings in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceedings on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter of merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of the cases in which the inherent jurisdiction of High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S. 561A the High Court would not embark upon an inquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any part to invoke the High Court’s inherent jurisdiction and contended that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under S. 561A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions of the point (Vide: In Re: Shripad G. Chandavarkar, Jagar Chandra Mozumdar V. Queen Empress. ILR 26 Cal 786, Dr. Shankar Singh Ganda Singh Vs. State of Punjab, : , Nripendra Bhusan Ray Vs. Gobinda Bandhu Majumdar, and Ramanathan Chettiyar Vs. K. Sivarama Subrahmanya Ayyar, “

8. This judgment was reiterated and following in Hazari Lal Gupta Vs. Rameshwar Prasad and Another, etc., , State of Karnataka Vs. L. Muniswamy and Others, , State of Haryana and others Vs. Ch. Bhajan Lal and others, and various other pronouncements.

9. Criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending. After referring to judgments in State of Haryana and others Vs. Ch. Bhajan Lal and others, , Rajesh Bajaj Vs. State NCT of Delhi and Others, this Court in Trisuns Chemical Industry v. Rajesh Agarwal & Ors. 1999 (8) SC 687 held:

“Time and again this Court has been pointing out that quashing of FIR or a complaint in exercise of the inherent, powers of the High Court should be limited to very extreme exceptions (vide State of Haryana and others Vs. Ch. Bhajan Lal and others, and Rajesh Bajaj Vs. State NCT of Delhi and Others, ].

In the last referred case this court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. We quote the following observations:

“10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating were committed in the course of commercial and also money transaction.”

10. In M/s. Medchl Chemicals and Pharma P. Ltd. Vs. M/s. Biological E. Ltd. and Others, this Court again reiterated the position and held:

“Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. With the lodgment of first information report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on a perusal of the complaint comes to a conclusion that the allegations leveled in the complaint or charge-sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law..

Needless to record however and it being a settled principle of law that to exercise powers u/s 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegation made int eh complaint and the High Court at that stage has to authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint. The observations in Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, lend support to the above statement of law:

“(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused:

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process in capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defect, such as, want of sanction, or absence of a complaint by legally competent authority and the like.”

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings.”

11. In Lalmuni Devi Vs. State of Bihar and Others, this Court held:

“There could be no dispute to the proposition that if the complaint does not make out an offence it can be quashed. However, it is also settled law that facts may give rise to a civil claim and also amount to an offence. Merely because a civil claim is maintainable does not mean that the criminal complaint cannot be maintained. In this case, on the facts, it cannot be stated, at this prima facie stage, that this is a frivolous complaint. The High Court does not state that on facts no offence is made out. If that be so, then merely on the ground that it was a civil wrong the criminal prosecution could not have been quashed.”

12. Again in M. Krishnan Vs. Vijay Singh and Another, this court held that while exercising powers u/s 482 of the Code, the High Court should be slow in interfering with the proceedings at the initial stage and that merely because the nature of the dispute is primarily of a civil nature, the criminal prosecution cannot be quashed because in cases of forgery and fraud there is always some element of civil nature. In a case where the accused alleged that the transaction between the parties are of a civil nature and the criminal court cannot proceed with the complaint because the factum of document being forged was pending in the civil court, the court observed:

“Accepting such a general proposition would be against the provision of law inasmuch as in all cases of cheating and fraud, in the whole transaction, there is generally some element of civil nature. However, in this case, the allegations were regarding the forging of the document and acquiring gains on the basis of such forged documents. The proceedings could not be quashed only because the respondents had filed a civil suit wit respect to the aforesaid documents. In a criminal court the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil court. Had the complainant failed to prove the allegations made by him in the complaint, the respondents were entitled to discharge or acquittal but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be use against them after the initiation of criminal proceedings or in anticipation of such proceedings. Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yardsticks. The onus of proving the allegations beyond reasonable doubt, in criminal case, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to the acts complained of.”

13. Referring to the judgments of this Court in AIR 1982 1181 (SC) , Sardool Singh v. Nasib Kaur and Karam Chand Ganga Prasad and Another Vs. Union of India (UOI) and Others, , the learned counsel appearing for the respondents submitted that the High Court was justified in quashing the complaint which does not require any interference by this Court in this appeal.

14. In Manju Gupta’s case (supra) the criminal proceedings were quashed under the peculiar circumstances of the case. After referring to para 20 of the complaint and holding “such an averment in our view is clearly inadequate and insufficient to bring home criminality of the appellant in the matter of the alleged offences”, the court found that simply because accused was the Secretary of the Society, the Magistrate was not justified in presuming her connection or complicity with the offence merely on that ground. The allegations in the complaint pertinent to forgery of rent receipts was held to be vague and indefinite. Sardool Singh’s case (supra) was also decided on its facts on the basis of law earlier settled by this court. In Karamchand Ganga Pershad’s case(supra) an observation was made that “it is a well established principle of law that decisions of the civil courts are binding on the criminal courts. The converse is not true”. In that case the appellants had filed a writ petition in the High Court for the issuance of appropriate directions requiring the Union of India to release and deliver to them some consignments of maize transported from the State of haryana to Howrah. Alleging that the movement of maize had been controlled by the provisions of Essential Commodities Act read with Northern Inter-Zonal Maize (Movement Control) order, 1967 promulgated by the State Government, the restriction on export imposed by the Order were removed by the State of Haryana in October. 1967 which was duly published and advertised. The contention of the Union was that the State of haryana had not lifted the ban on export and further that it had no power to lift the ban. The High Court dismissed the writ petition on the sole ground that in view of the pendency of the criminal proceedings before some court in the State of West Bengal it was inappropriate for the High Court to pronounce on the question arising for decision in the writ petition. In that context the court held:

“In our opinion the High Court seriously erred in coming to this conclusion. If the appellants are able to establish their case that the ban an export of maize from the State of Haryana had been validly lifted all the proceedings taken against those who exported the maize automatically fall to the ground. Their maintainability depends on the assumption that the exports were made without the authority of law. It is a well established principle of law that the decisions of the Civil courts are binding on the criminal courts. The converse is not true. The High Court after entertaining the writ petitions and hearing arguments on the merits of the case should not have dismissed the petitions merely because certain consequential proceedings had been taken on the basis that the exports in question were illegal.”

15. We have already noticed that the nature and scope of civil and criminal proceedings and the standard of proof required in both matters is different and distinct. Whereas in civil proceedings the matter can be decided on the basis of probabilities, the criminal case has to be decided by adopting the standard of proof of “beyond reasonable doubt”. A Constitution Bench of this court. dealing with the similar circumstances, in M.S. Sheriff Vs. The State of Madras and Others, held that where civil and criminal cases are pending, precedence shall be given to criminal proceedings. Detailing the reasons for the conclusions, the court held:

“As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence of damages. The only relevant consideration here is the likelihood of embarrassment.

Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be published while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too him to trust.

This however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it expedient to stay it in order to given precedence to a prosecution ordered under S. 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have furnished.”

16. In the present case we have noticed that before issuance of the process, the Trial Magistrate had recorded the statement of the witnesses for the complaint, perused the record including the opinion of the expert and his deposition and prima facie found that the respondents were guilty for the offences for which the process was issued against them. The High Court rightly did not refer to any of those circumstances but quashed the proceedings only on the ground:

“Consideration is and should be whether any criminal proceeding instituted before a court subordinate to this court should be allowed to continue when the very foundation of the criminal case, namely, forgery of document is under scrutiny by this court in a civil proceeding instituted by same person i.e., the complainant in the criminal case. In my considered view would not proper to allow the criminal proceeding to continue when the validity of the document (deed of dissolution is being tested in a civil proceeding before this court. Judicial propriety demands that the course adopted by the Hon’ble Supreme Court in the case of Manju Gupta (supra) and Sardool Singh (supra) should be followed. If such course of action is adopted by this court, that would be in consonance with the expression used in Section 482 of the Code of Criminal Procedure – “or otherwise to secure the ends of justice”. In both the cases referred to above civil suits were pending, where the validity and genuineness of a document was challenge. It was held by the Hon’ble Supreme Court that when the question regarding validity of a document is subjudice in the civil courts, criminal prosecution, on the allegation of the document being forged, cannot be instituted.”

17. In view of the of authorities to the contrary, we are satisfied that the High Court was not justified in quashing the proceedings initiated by the appellant against the respondents. We are also not impressed by the argument that as the civil suit was pending in the High Court, the Magistrate was not justified to proceed with the criminal case either in law or on the basis propriety. Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings.

18. In the result of appeal is allowed by setting aside the impugned order passed by the High Court and resorting the order of the Magistrate with direction to proceed with the trial of the case in accordance with the provisions of law and decide the same on merits.


Cases Referred

Ramanathan Chettiyar Vs. K. Sivarama Subrahmanya Ayyar, (1924) ILR (Mad) 722
State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 : (1992) CriLJ 527 : (1990) 4 JT 650 : (1990) 2 SCALE 1066 : (1992) 1 SCC 335 Supp : (1990) 3 SCR 259 Supp
Lalmuni Devi Vs. State of Bihar and Others, (2001) 1 JT 150 : (2000) 8 SCALE 432 : (2001) 2 SCC 17 : (2001) AIRSCW 2504
M. Krishnan Vs. Vijay Singh and Another, (2001) 8 AD 494 : AIR 2001 SC 3014 : (2001) CriLJ 4705 : (2001) 8 JT 540 : (2001) 7 SCALE 126 : (2001) 8 SCC 645 : (2001) AIRSCW 4142 : (2001) 7 Supreme 397
Hazari Lal Gupta Vs. Rameshwar Prasad and Another, etc., AIR 1972 SC 484 : (1972) CriLJ 298 : (1972) 1 SCC 452 : (1972) SCC(Cri) 208 : (1972) 2 SCR 666 : (1972) 4 UJ 385
M/s. Medchl Chemicals and Pharma P. Ltd. Vs. M/s. Biological E. Ltd. and Others, (2000) CriLJ 1487 : (2000) 2 JT 426 : (2000) 2 SCALE 88 : (2000) 3 SCC 269 : (2000) 1 SCR 1169 : (2000) AIRSCW 682 : (2000) 2 Supreme 261
R.P. Kapur Vs. The State of Punjab, AIR 1960 SC 866 : (1960) CriLJ 1239 : (1960) 3 SCR 388
M.S. Sheriff Vs. The State of Madras and Others, AIR 1954 SC 397 : (1954) 1 SCR 1144
Karam Chand Ganga Prasad and Another Vs. Union of India (UOI) and Others, AIR 1971 SC 1244 : (1971) CriLJ 1072 : (1970) 3 SCC 694 : (1971) 3 UJ 26
State of Karnataka Vs. L. Muniswamy and Others, AIR 1977 SC 1489 : (1977) CriLJ 1125 : (1977) 2 SCC 699 : (1977) 3 SCR 113
Rajesh Bajaj Vs. State NCT of Delhi and Others, AIR 1999 SC 1216 : (1999) CriLJ 1833 : (1999) 1 Crimes 136 : (1999) 2 CTC 243 : (1999) 2 JT 112 : (1999) 1 SCALE 697 : (1999) 3 SCC 259 : (1999) 1 SCR 1012 : (1999) 1 UJ 685 : (1999) AIRSCW 881 : (1999) 2 Supreme 442
Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, AIR 1976 SC 1947 : (1976) CriLJ 1533 : (1976) 3 SCC 736 : (1976) SCC(Cri) 507 : (1976) SCR 123 Supp
Dr. Shankar Singh Ganda Singh Vs. State of Punjab, AIR 1954 P&H 193
In Re: Shripad G. Chandavarkar, AIR 1928 Bom 184 : (1928) 30 BOMLR 70 : (1928) ILR (Bom) 151 : 108 Ind. Cas. 27
Nripendra Bhusan Ray Vs. Gobinda Bandhu Majumdar, AIR 1924 Cal 1018 : 82 Ind. Cas. 266

Delay in Despatch of FIR to Magistrat

(i) Mere delay in Despatch of FIR to magistrate is not a circumstance, which can throw out the prosecution case entirely. [Pala Singh & vs. State of Punjab, AIR 1992 SC 2679]

(ii) The delay is not necessarily fatal particularly when it has been recorded without delay and no suspicion is attached to its recording. [State of MP vs. Gokaran, AIR 1966AIR SC 131]

(iii) Delay in sending FIR to Magistrate forthwith gives rise to the suspicion that the report was recorded much latter than the stated date. Obviously delay needs to be explained satisfactorily. [Ishwar Singh vs. State of UP, AIR 1976 SC 2423]