1 Cri.Appln.3487 of 2010 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPLICATION NO. 3487 OF 2010 Mr. Suryakant Gangaram Chavan ... Applicant Versus M/s. Shivalik Ventures Pvt. Ltd. and Ors. ... Respondents Mr. Prakash Naik, Advocate for the applicant. Mr. I.A. Bagaria, Advocate for respondent nos. 1 to 3. Mrs. R.V. Newton, A.P.P. for State. CORAM : K.U. CHANDIWAL,J. DATED : SEPTEMBER 06, 2011 P.C. Heard finally at admission stage. 2. The applicant had filed complaint being C.C. No. 206/SW/2009 before the Additional Chief Metropolitan Magistrate, 32nd Court, Mumbai for the offence punishable under section 211 of I.P.C. The said complaint came to be dismissed by the learned Magistrate by order dated 16th November, 2009 and confirmed by the learned Additional Sessions Judge, Greater Mumbai in Criminal Revision Application No. 174 of 2010. 2 Cri.Appln.3487 of 2010 FACTS : 3. The applicant was the local corporator of Mumbai Municipal Corporation in whose area, accused No. 1 had undertaken development of property under Slum Rehabilitation Scheme. A news was published in Newspaper "Sakal" dated 18.4.2008 against accused no. 1. The newspaper subsequently, on 28 June, 2009, by a publication clarified that the reference of Suryakant Chavan in the said news item was not to the applicant Corporator but was to its reporter. 4. A notice dated 23.07.2009 was sent by accused no. 1 to applicant Suryakant Chavan that false allegations were made against accused no. 1 and he was defamed. In Paragraph no. 8 of the said notice applicant was informed that in contemplated action, the accused no. 1 will make demand of Rs. 100 Crore and also cause prosecution in terms of section 499 and 500 of I.P.C. The notice also demanded unconditional apology within a week or to face legal consequences. The cause of the prosecution is the above referred notice which was replied by the applicant on 30.7.2009. 5. The learned counsel submits that in the verification recorded 3 Cri.Appln.3487 of 2010 before the learned Magistrate on 29.9.2009 applicant has explained about the receipt of notice, newspaper articles and his reply to the said notice. He reiterated, he is not responsible for the news item published and there was no reason for him to tender unconditional apology. He therefore, prosecuted the accused/respondent for infraction of section 211 of I.P.C. 6. The learned Magistrate by order dated 16.11.2009 observed that none of the accused has filed any criminal case against the complainant before any criminal court. The plain reading of section 211 I.P.C. provides that to invoke this section, a false complaint must have been filed in the court. This very necessary ingredient is absent in the case. Hence, he did not issue process against accused/respondents. 7. Mr. Naik, the learned counsel for the applicant submits that issuing false notice and claiming apology also amounts to false charge, inviting prosecution in terms of section 211 of I.P.C. The learned counsel placed reliance on the judgment of the Supreme Court in Hari Das Versus State of West Bengal, AIR 1964 SC 1773. It was the matter seeking action for contempt of court and having lost in such exercise, the prosecution in terms of section 211 of IPC was initiated. The 4 Cri.Appln.3487 of 2010 Supreme Court observed in Para 8 as under : "As a matter of construction, and that is all that we have to go by in the absence of any authority, I agree with the view of the High Court that when the section says that an offence under it may be committed by falsely charging a person with the commission of an offence, it does not intend that the offence must be one which gives rise to a criminal proceeding. There is no warrant for a contrary view. Indeed the definition of the word offence in s. 40 of the Code shows that such a contrary view would be wrong. Under that definition the word "offence" in s. 211 means an offence punishable under the Code or under any special or local law as defined in it. Section 41 defines a special law as a law applicable to a particular subject. Now the Contempt of Courts Act is an Act dealing with the subject of contempt of courts and is, therefore, a special law. It also provides for punishment for contempt of court by simple imprisonment upto six months, subject to certain conditions mentioned; see ss. 3 and 4. A charge of having committed a contempt of court is, therefore, a charge of having committed an offence within the meaning of s. 211. Such a charge was admittedly brought in this case and that charge was furthermore preferred to the only person who could act upon it, namely, the High Court, for without its sanction no complaint for lodging a false charge of contempt of court could have been made. The order to lodge the complaint in regard to an offence under s. 211 was unobjectionable." 8. The aforesaid judgment of the Supreme Court will not come into acceleration for case of the applicant as in the said case there were proceedings initiated under Contempt of courts Act which failed for some or other reason and thereafter action was proposed by the original complainant. 5 Cri.Appln.3487 of 2010 9. In this case, the original accused (respondent) merely issued notice claiming unconditional apology from applicant for causing news item and contemplated action under section 499 and 500 of I.P.C. The essential ingredients of section 211 I.P.C. are : (a) that the accused had intended to cause injury to any person; (b) that with that object he instituted or caused to be instituted a criminal proceeding against that person or in the alternative falsely charged him with having committed an offence and (c) that he did so with the knowledge that there was no just or lawful ground for such proceeding or charge against that person." 10. This inference even to be drawn from the above referred judgment in the matter of Hari Das. Thus mere communication of suspicion or purported action by the accused no. 1 would not itself bring the case under the purview of section 211 of I.P.C. The accused no. 1 must be shown to have actually known that there was no just and lawful ground 6 Cri.Appln.3487 of 2010 for making the charge. The reading of legal notice served upon the applicant shows that the same is based on the news item and the correspondence ensued by the applicant was sufficient for accused no. 1 to cause issuance of legal notice. The overall effect of the above discussion is, the orders of refusing to issue process by the learned Metropolitan Magistrate and confirmed by the Additional Sessions Judge do not call for any interference. Criminal Application is dismissed. (K.U. CHANDIWAL,J.)