1 CRI.APP.NO.369/2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.369 OF 2009. 1. Shri.Raosaheb Hodshil. Age: 48 years, Occ: Journalist. 2. Mrs.Jana Raosaheb Hodshil, Age: 44 years, Occ: Household, Both R/o: In front of Zanzani Mata Mandir, Near Mahatma Gandhi Statue, Gat No.1, Subhash Nagar, Dhule, Dist.Dhule. ...Applicants. Versus Shri Ramchandra Mahadeo Shelke, Age: 50 years, Occ: Agriculture & Politics, R/o: Koregaon, Tal. and Dist.Ahmednagar. ...Respondent. ... Mr.S.S.Wagh, Advocate for the applicants. Mr.S.T.Shelke, Advocate for the respondent. ... 2 CRI.APP.NO.369/2009 CORAM: A.V.NIRGUDE,J. Date : 3rd July, 2009. COURT'S ORDER: 1. The applicants are seeking quashing of criminal complaint and proceedings pursuant to Criminal Case S.C.No.825/2005 pending before the learned Judicial Magistrate,(F.C.), Karjat, Dist.Ahmednagar, by this application under Section 482 of the Code of Criminal Procedure, 1973. 2. The applicants are publisher, Editor, Printer and owner of a newspaper by name, "Rayat Morcha" published from Dhule. The respondent/complainant filed the complaint in question before the learned Judicial Magistrate, (F.C.), Karjat against the applicants under Sections 500, 501 /w 34 of the Indian Penal Code. He said that one Pachpute who was a Police Inspector at the relevant time at Dhule was his closed relative. The applicants published in the issue of the above mentioned newspaper dated 18th May, 2005 perse defamatory article about Pachpute. He says, 3 CRI.APP.NO.369/2009 the article even contained obscene material about Pachpute's wife. The respondent/complainant stated that the article published in the newspaper by the applicants perse defamed his relative Pachpute. He said that his friends, relatives and others who resided in his village and in the Taluka, knew that he was closely related to Pachpute. He said, his friends and relatives after reading the article started taunting and humiliating him. He said, due to such humiliation his reputation was lost. On this narration, he filed the complaint and the learned Magistrate issued process. I am told that the applicants attended the Court dates and the criminal case is going on. 3. Mr.Wagh, learned Advocate appearing for the applicants, raised three points. He said, (i) that the complainant could not have lodged the complaint because he was not the aggrieved person as contemplated under Section 199 of the Code of Criminal Procedure, 1973. (ii) He then said that other two similar criminal cases filed by other relatives of Pachpute were withdrawn and in view of Section 257 of the Code of Criminal Procedure, 1973, the applicants stood acquitted in those 4 CRI.APP.NO.369/2009 cases. He said, in view of the acquittal of those cases, the present complaint can not continue in view of Section 300 of the Code of Criminal Procedure, 1973. (iii) Learned Advocate for the applicants also asserted that by publishing the article in the newspaper, the applicants would not be attributed with intention to harm the reputation of the complainant and so, the complaint does not constitute the offence under Section 499 punishable under Sections 500 & 501 of the Indian Penal Code. 4. In order to appreciate the argument of the learned Advocate appearing for the applicants, one has to read carefully the provisions of Section 199 of the Code of Criminal Procedure, 1973. It is clear that this section lays down an exception to the general rule that a complaint can be filed by any one whether he is aggrieved person or not and modifies the rule by permitting only an aggrieved person to move the Magistrate in cases of defamation. The rule in this section is mandatory. So, the criminal Court/ Magistrate has to examine as to whether the complainant is a person aggrieved as contemplated under Section 199 of the Cr.P.C. 5 CRI.APP.NO.369/2009 5. In this case, article in question, apparently defames Pachpute only. It certainly does not defame the respondent who happens to be a relative of Pachpute. It is thus clear that this Pachpute should be the person aggrieved as contemplated under Section 199 of the Cr.P.C. 6. As against this, Mr.Shelke, learned Advocate appearing for the respondent asserted that the news article mentions number of imputation, not only against Pachpute, but also against his many relatives. He said that Pachpute's relatives who form an independent class, are thereby defamed by the article in question and so any one of the relatives of Pachpute would fall within the parameters of term, "aggrieved person" used in Section 199 of the Cr.P.C. He also mentioned that the section also used word "some" prior to term, "aggrieved person". He suggested that the word "some" used in this section, indicates that there could be more than one aggrieved persons. This argument is not acceptable because word, "some persons aggrieved" would include every person, who could be aggrieved by an act of defamation. For example, if an article defames a group of 6 CRI.APP.NO.369/2009 persons, any one of them can set the criminal law in motion. In that sense, the word, "some" is used in this section. The argument of the learned Advocate appearing for the respondent, as regards the defamation of other relatives of Pachpute, is factually incorrect. 7. I went through the entire article and found that no relative of Pachpute, has been imputed with the defamatory material. The article targeted only Pachpute. It suggested that Pachpute is not only bad Officer, but he had harmed his relatives also. 8. The argument of Mr.Wagh, learned Advocate appearing for the applicants, based on Section 257 and 300 of Cr.P.C., is however, not acceptable. The other cases, which were filed by other persons, were separate offences. They were in respect of humiliation of the other persons, and therefore, "rule of double jeopardy" will not be applicable, if the complaints lodged against the applicants by others were withdrawn and the applicants were acquitted. 7 CRI.APP.NO.369/2009 9. However, Mr.Wagh's submission that since the applicants had no intention to harm the reputation of the complainant, the offence under Section 499 of the Indian Penal Code is not constituted, is acceptable. Relevant provisions of I.P.C. are as under:- Section 499. Defamation.-Whoever, by words either spoken or intended to be read, or by sings 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 1.- It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if having, and is intended to be hurtful to the feelings of his family or other near relatives. 8 CRI.APP.NO.369/2009 Explanation 2.- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3.- An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.-No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that 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." 10. As said above, at the most the newspaper article in question can be said to be intentionally published to harm the reputation of 9 CRI.APP.NO.369/2009 Pachpute, but it can never be said that it was published with an intention to harm the reputation of the complainant who happens to be a relative of Pachpute. The complainant very ingeniously drafted the complaint. He said that since Pachpute was his relative, his acquaintances started taunting and humiliating him after reading the article. Assuming that had happened and assuming that because of such taunting and humiliation, the respondent / complainant has lost his reputation, it would still not constitute an offence under Section 499 of the IPC, because the applicants can not be attributed with intention to harm the reputation of the respondent/complainant, while publishing the article in question. Besides, there is no reference in the article of the respondent / complainant. 11. The complaint, in my view, is nothing but an abuse of process. The learned Magistrate, who took cognizance of this case was probably unaware of the provisions of Section 199 of the Code of Criminal Procedure, 1973. He had erred in issuing process against the applicants. 10 CRI.APP.NO.369/2009 12. I am aware and Mr.Shelke, learned Advocate for the respondent, pointed out, that not only the process was issued in this case, but the applicants appeared before the criminal Court and has been participating in the criminal trial. He informs that the respondent/complainant has even recorded his evidence and the applicants extensively cross-examined him through their Advocate. He said, it is too late now to exercise the powers under Section 482 of Cr.P.C. I do not agree with this submissions because the inception of the criminal case is illegal. It's every stage is illegal and at any such stage, such a criminal case could be terminated. 13. The Supreme Court in the case of G.Narasimhan and others etc. etc. V/s T.V.Chokkappa reported in AIR 1972 Supreme Court 2609, has observed that, "if a Magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not an aggrieved person, the trial and conviction would be void and illegal". I think at any stage of the trial, since the filing of the complaint itself is an abuse of process, use of discretion provided under Section 482 of Code of Criminal Procedure, 1973, to this Court, should 11 CRI.APP.NO.369/2009 be utilised. The application thus succeeds. 14. The Proceedings in Criminal Case S.C.No. 825/2005 between applicants and respondent, pending before the Judicial Magistrate, (F.C.), Karjat, Dist.Ahmednagar, stands quashed. 15. In view of this, Criminal Application No. 370/2009 does not survive. It stands disposed of. (A.V.NIRGUDE,J.) lkp