IN THE COURT OF SH. [ENTITY], ADDITIONAL SESSIONS JUDGE-05, SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI CRIMINAL REVISION NO. 204185/2016 In the matter of: Dr. [ENTITY] S/o Sh. L. R. Mahajan R/o C-1-117, Lajpat Nagar, New Delhi - 110024 Revisionist Versus [ENTITY] S/o Sh. Ghanshyam, R/o 65 R/8, New Colony Palwal, Palwal, Haryana Respondent Reserved on : 29.07.2017 Pronounced on : 30.08.2017 JUDGMENT
This revision petition has been filed by the revisionist under [SECTION] of the [ACT] (in short "Code") against the order dated 08.07.2015 passed by the learned Metropolitan Magistrate-01, South East District, Saket Courts, New Delhi in [CASE NUMBER] titled as [CASE NUMBER] Dr. [ENTITY] v. [ENTITY] Page No.1 of 9 "Dr. [ENTITY] v. [ENTITY]" whereby complaint filed by the revisionist was dismissed under [SECTION] of the Code.
2. Notice of the revision petition was issued to respondent and respondent has been appeared through his counsel. I have heard argument on revision petition.
3. Shri [ENTITY], learned counsel for the revisionist has submitted that revisionist is a medical doctor and the respondent is the father-in-law of the revisionist. The respondent filed an RTI application dated 06.05.2013 at the workplace of the revisionist seeking information pertaining to the salary of the revisionist and in said application, the respondent deliberately made certain imputation as to harm the reputation of the revisionist at workplace.
4. The Learned counsel for the revisionist has further submitted that the learned metropolitan magistrate instead of ascertaining whether a prima facie case has been made out for summoning the respondent/accused, has discussed the merit of the complaint at the stage of summoning of the respondent. At the stage of summoning, the detailed discussion of the merits and demerits of the case should not be resorted and therefore, the revision may be allowed and impugned order may be set aside. The exceptions as mentioned in [SECTION] of the [ACT] (in short "[ACT]") cannot be considered at the stage of the summoning of the accused and said exceptions / defences can be taken into consideration during the trial of the complaint and same are required to be proved by the respondent. Learned counsel has placed reliance upon the decisions namely [PRECEDENT] ; [PRECEDENT] Dr. [ENTITY] v. [ENTITY] Page No.2 of 9 Motors Limited v. State, Crl.Rev.P.16/2008 ; [PRECEDENT] [PRECEDENT] [PRECEDENT] ; [PRECEDENT] ; [PRECEDENT].
5. On the other hand, Ms. [ENTITY], the learned counsel for the respondent has opposed the revision stating that the revisionist was not maintaining his wife and children and the respondent who is the father-in- law of the revisionist had filed an RTI application and the averments in the said application were made in good faith after due care and attention without any intention or knowledge or harm the revisionist's reputation. The averments in the RTI application were made for seeking revisionist's salary slip to protect the interest of two minor children and revisionist's legally wedded wife, which the revisionist has neglected, deserted at the mercy of the respondent at Palwal. The salary slip of employed husband is essential to claim just and proper maintenance under [SECTION] of the Code.
6. Learned counsel has further submitted that even if the allegations are taken to be true, no offence of defamation is made out as case falls under the Exception 8 and 9 to the [SECTION] [ACT]. The revisionist did not state specifically the names of those persons in whose estimation, his reputation has been lowered. The revisionist is the sole witness of the case and one cannot be defamed in his own estimation. The communication of defamatory matter to the person concerned only, cannot be said a publication as per [SECTION] [ACT].
[CASE NUMBER] Dr. [ENTITY] v. [ENTITY] Page No.3 of 9
7. The revisionist herein had filed a complaint under [SECTION] read with [SECTION] of the Code for the offence punishable under [SECTION] [ACT] stating that the revisionist/complainant is a qualified medical doctor holding M.D. (Medicine) and is employed as class-1 gazetted officer at the Delhi Government Hospital and currently on study leave pursuing D.M. course in Nepherology at All India Institute of Medical Sciences, New Delhi. The respondent had filed a RTI application dated 06.05.2013 at the workplace of the revisionist herein and in said application, the respondent herein made the false imputation to harm the reputation of the revisionist. The revisionist was informed by the office of his employer vide letter dated 21.05.2013. The imputation made by the respondent is false, baseless and intentional. The respondent has the imputation with a view to malign and injure the reputation of the revisionist at his office. The revisionist intended to harm and disrepute the character of a reputable doctor at the work place and among his seniors, associates and subordinates.
8. At the stage of pre-summoning evidence under [SECTION] of the Code, the revisionist examined himself as CW-1. Vide impugned order dated 08.07.2015, the learned Metropolitan Magistrate dismissed the complaint under [SECTION] of the Code. Hence, this revision.
6. The imputation alleged to be defamatory is in para no. 2 of the RTI application Ex. CW-1/A which reads as under :
"2. That it is a matter of apprehension that Dr. [ENTITY], a father of his two minor children as well as a [CASE NUMBER] Dr. [ENTITY] v. [ENTITY] Page No.4 of 9 husband of his legally wedded wife would squander away the monetary benefit without peer group/ legal pressure and in that eventuality; his children will be left high and dry, without any pecuniary resources for their education and other social obligations."
9. The question is as to whether above para no. 2 of the RTI application comes into the imputation as mentioned under [SECTION] [ACT]. [SECTION] [ACT] reads as under:
"499. Defamation. - Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.
Explanation 1. -
Explanation 2. -
Explanation 3. - An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4. - No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as [CASE NUMBER] Dr. [ENTITY] v. [ENTITY] Page No.5 of 9 disgraceful."
10. The test to determine whether any statement is defamatory or not is whether under the circumstances in which writing was published, a person of reasonable prudence to whom the publication was made would be likely to understand it in a libellous sense. By harm is meant imputation on a man's character made and expressed to others so as to lower him in their estimation. Anything which lowers him in his own estimation does not constitute defamation. The [SECTION] [ACT] specifically states that no imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers of moral or intellectual character of that person or lowers the character of that person in respect of his caste or his calling or lowers the credit of that person.
11. In [ENTITY]'s case (supra) it is observed by Hon'ble Supreme Court that it is settled legal position that a Court has to read complaint as a whole and find out whether allegations disclosed constitute an offence under [SECTION] [ACT] and the magistrate prima facie came to the conclusion that allegations might come within the definition of defamation of under [SECTION] [ACT] and could be taken cognizance of.
12. In [PRECEDENT], [CASE NUMBER] decided on 02.07.2015, Hon'ble Supreme Court held that [SECTION] of the Code contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present, if any. Then normally three [CASE NUMBER] Dr. [ENTITY] v. [ENTITY] Page No.6 of 9 courses are available to the Magistrate. The Magistrate can either issue summons to the accused or order an enquiry under [SECTION] of the Code or dismiss the complaint under [SECTION] of the Code. Upon consideration of the statement of the complainant and the material adduced at that stage if the Magistrate is satisfied that there are sufficient grounds to proceed, he can proceed to issue process under [SECTION] of the Code. If the Magistrate find no sufficient ground for proceeding, he can dismiss the complaint.
13. In [PRECEDENT], the question for consideration before the Hon'ble Supreme Court was whether the allegations in the complaint read with the report of the Magistrate make out the offence under [SECTION] or not. It was held/observed by Hon'ble Supreme Court that [SECTION] [ACT] defines the offence of defamation and [SECTION] provides the punishment for such offence. Exception 8 to [SECTION] clearly indicates that it is not a defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with regard to the subject-matter of accusation. The report of the treasury officers clearly indicates that pursuant to the report made by the accused persons against the complainant, a departmental enquiry had been initiated and the complainant was found to be guilty. Under such circumstances, the fact that the accused persons had made a report to the superior officer of the complainant alleging that he has abused the treasury officer in the drunken State which is the gravemen of the present complaint and nothing more, would be covered by [SECTION] [ACT]. By perusing the allegations made in the complaint petition, we are also satisfied that no [CASE NUMBER] Dr. [ENTITY] v. [ENTITY] Page No.7 of 9 case of defamation has been made out.
14. Hence, at the stage of summoning, the learned Magistrate has to see that prima facie case has been made out on the basis of complaint and pre- summoning evidence against the accused. The mere imputation that "That it is a matter of apprehension that Dr. [ENTITY], a father of his two minor children as well as a husband of his legally wedded wife would squander away the monetary benefit without peer group/ legal pressure and in that eventuality; his children will be left high and dry, without any pecuniary resources for their education and other social obligations." cannot be considered as defamatory.
15. Secondly, it is clear from the [SECTION] [ACT] 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. In the present case, the revisionist/complainant did not state specifically in the complaint and/or pre- summoning evidence the names of those persons in whose estimations, his reputations has been lowered. In the list of witness filed with the complaint, the revisionist/complainant has cited/mentioned only himself as a witness and no other person has been cited as a witness except himself. Hence, revisionist has not prima facie shown from the complaint, documents attached with the complaint and pre-summoning evidence that imputation directly or indirectly, in the estimation of others, lowered his morale or [CASE NUMBER] Dr. [ENTITY] v. [ENTITY] Page No.8 of 9 intellectual character.
16. In view of the above discussion, revision is dismissed.
Announced in the open court on 30.08.2017 ([ENTITY]) Additional Sessions Judge-05 South East District, Saket Courts New Delhi [CASE NUMBER] Dr. [ENTITY] v. [ENTITY] Page No.9 of 9