Shatrughna
Prasad Sinha Vs. Rajbhau Surajmal Rathi & Ors [1996] INSC 1104 (10 September 1996)
Ramaswamy,
K.Ramaswamy, K.Faizan Uddin (J) G.B. Pattanaik (J)
ACT:
HEAD NOTE:
O R D
E R
Leave
granted.
Though
the respondents were duly served and on an occasion appeared in person,
subsequently they did not appear. Resultantly, we requested Shri Sushil Kumar
Jain, Advocate of the Bar to assist the Court as amicus curiae. We place on
record our deep appreciation for the valuable assistance rendered by him.
This appeal
by special leave arises from the judgment and order of the High Court of Bombay made on January 21, 1991 in Crl.Writ Petition No. 1545 of 1990. The facts relevant
for the purpose of this case and we proceed on the basis thereof are that
allegations were made in the complaint filed by the respondents in the Courts
of Magistrate at Pune and Nasik; we deal with those allegations as they
constitute offence for which the Judicial Magistrate, Ist Class, could take
cognizance. In paragraph 2 it is narrated that the complainant-respondent was a
social activist belonging to the Marwari Community, and that the respondent
second accused respectively is the editor and publisher of Stardust, Film
Magazine. An interview she had with the appellant in June 1989, came to be
published at page 82 of that magazine. During the course of the interview, the
appellant was alleged to have made statements outraging the religious feeling
of the Marwari community and also defamed the members of Marwari community as a
class. In the complaint filed at Pune, what he has stated is as under:
"The
Complainant submits that in June 89 the Accused No.1 has with deliberate and
malicious intention of outraging the religious feelings of Marwari Community
made the said statement. By the statement of the Accused No,1, the structure of
National Integrity is being paralysed. The feelings of Marwari Community also
being hurt by the Statement made by the Accused No.1.
The
Statement of Accused No.1 goes to show that Marwari Community is not a Class belonging
to India and they have not faith and love
towards India, their mother land.
It is
implied from the said statement that Marwaris are traitors and enemies of India. So also accused No.2 has also
printed and published the said statement in 'Star Dust' Magazine of 1989 with
deliberate and malicious intention of outraging the religious feelings of Marwari
Community." The rest of the paragraphs are only the consequential
narration of the allegations in paragraph 3. According to the respondents,
these allegations constitute offence punishable under Section 295-A and Section
500 read with Section 34 of the India Penal Code [IPC, for short]. The
Magistrate had taken cognizance and issued notice to the appellant for
appearance. When it was challenged in the writ petition, the learned single
Judge of the High Court had held that on a reading of the complaint as a whole,
no offence under Section 295A could be made out; however, the allegations
constitute prima facie offence triable by the Magistrate under Section 500,
IPC. Thus, these appeals by special leave.
Section
295A of the IPC envisages the essential ingredients of the punishment and
provides that whoever, with deliberate and malicious intention of outraging the
religious feelings of any class of citizens of India, by words, either spoken
or written, or by signs or by visible representations or otherwise, insults or
attempts to insult the religion or the religious beliefs of that class, shall
be punished with imprisonment of either description for a term which may extend
to three years, or with fine, or with both. The quoted para does not contain
essential facts constituting the offence.
Section
200 of the Code of Criminal Procedure, 1908 [Cr.P.C., for short] in Chapter XV
provides as under:
"A
Magistrate taking cognizance of an offence on complaint shall examine upon path
the complainant and the witnesses present, if any, and the substance of such
examination shall be reduced to writing and shall be signed by the complainant
and the witnesses, and also by the Magistrate provided that when the complaint
is made in writing, the Magistrate need not examine the complainant and the
witnesses." The High Court may take cognizance of any offence under
Section 190(1) (a) upon receiving a complaint containing facts which constitute
such offence. It is a matter of discretion. Criminal proceedings are initiated
by a Magistrate taking cognizance of the offence. Taking cognizance of the
offence would include the intention of the Magistrate of initiating judicial
proceedings against the offender in respect of that offence or taking steps to
see whether there is any basis for initiating judicial proceedings or for other
purpose.
It
would thus be seen that when a private complaint is made to the Magistrate,
before the Magistrate takes cognizance of the offence on the complaint so as to
take the other steps, the complaint shall contain all the necessary facts
constituting the offence for which the complaint was laid, so that the
Magistrate can proceed further in taking further steps after cognizance of the
offence is taken by issuing the process etc. It is seen from reading of para 3
of the complaint, which is the foundation to taking cognizance of the offence,
that the complainant-respondent has concentrated mainly on the offence
punishable under Section 295A of IPC; the High Court had quashed the said
complaint and no appeal has been filed in this Court.
The
next question is: whether the learned Judge was right in holding that the
complaint discloses offence punishable under Section 500 IPC? Section 499
defines 'defamation' thus:
"Whoever
by words either spoken or intended to be read, or by signs or by visible
representations, makes or publishes any imputation concerning any persons
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
2 to the said section envisages that it may amount to defamation to make an
imputation concerning a company or an association or collection of persons as
such.
Explanation
4 provides that 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.
A
reading of the complaint does not contain any of the allegations constituting
the offence of defamation punishable under Section 500, IPC. The contents of
the magazine are alleged to be defamatory against the Marwari community, lowering
them in the estimate of the public or their reputation is lowered in the
society. But we do not find any allegation made in the complaint. Accordingly,
we hold that the complaint filed in the Court of the Judicial Magistrate, First
Class in Court No.4 at Pune does not contain any of the allegations so as to
constitute the offence of defamation defined in Section 499 and punishable
under Section 500. Consequently, the Magistrate was not justified in issuing
the process against the appellant. The complaint is accordingly quashed.
As
regards the allegations made against the appellant in the complaint filed in
the Court of Judicial Magistrate, Ist Class, at Nasik, on a reading of the
complaint we do not think that we will be justified at this state to quash that
complaint. It is not the province of this Court to appreciate at this stage the
evidence or scope of and meaning of the statement. Certain allegations came to
be made but whether these allegations do constitute defamation of the Marwari
community as a business class and whether the appellant had intention to cite
as an instance of general feeling among the community and whether the context
in which the said statement came to be made, as is sought to be argued by the
learned senior counsel for the appellant, are all matters to be considered by
the learned Magistrate at a later stage. At this stage, we cannot embark upon
weighing the evidence and come to any conclusion to hold, whether or not the
allegations made in the complaint constitute an offence punishable under
Section 500. It is the settled legal position that a Court has to read the
complaint as a whole and find out whether allegations disclosed constitute an
offence under Section 499 triable by the Magistrate. The Magistrate prima facie
came to the conclusion that the allegations might come within the definition of
'defamation' under Section 499 IPC and could be taken cognizance of. But these
are the facts to be established at the trial. The case set up by the appellant
are either defences open to be taken or other steps of framing a charge at the
trial at whatever stage known to law. Prima facie we think that at this state
it is not a case warranting quashing of the complaint filed in the Court of
Judicial Magistrate, Ist Class at Nasik. To that extent, the High Court was right in refusing to quash the
complaint under Section 500, IPC.
The
appeal is accordingly allowed in part.
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