1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 122 OF 2009 1. Mr. Yadav Motiram Patil ) Age 58 years, R/at B-4, Om Arpan ) CHS Ltd., Dadlani Park, Balkum, ) Thane. ) 2. Mrs. Pushpa Yadav Patil ) Age: 54 years, ) R/at B-4, Om Arpan CHS Ltd., ) Dadlani Park, Balkum, Thane. ) 3. Shri Anant Gopal Joshi ) Age: 52 years, ) R/at B-3, Om Arpan CHS Ltd., ) Dadlani Park, Balkum, Thane. ) 4. Mrs. Swati Anant Joshi ) Age 47 years, ) R/at B-3, Om Arpan CHS Ltd., ) Dadlani Park, Balkum, Thane. ) 5. Mr. Prasanna C. Valanju ) Age 36 years, ) R/at: A-9, Om Arpan CHS Ltd., ) Dadlan Park, Balkum, Thane. ) 6. Mrs. Manisha P. Valanju, ) Age 28 years, ) R/at : A-9, Om Arpan CHS Ltd., ) Dadlani Park, Balkum, Thane. ) ..Petitioners Vs. 1. Mr. Rajiv G. Ghodankar @ Chandankar) Age Adult, Occ: Business, ) R/at B-2/B-10, B Wing, ) Om Arpan CHS Ltd., ) 2 Dadlani Park, Balkum, ) Tal. Dist. Thane. ) 2. The State of Maharashtra )..Respondents S/Shri Sandesh Patil, i./b. Prashant P. Jahdav, Advocate, for the petitioners. Shri Indrajeet R.Kulkarni, Advocate, for the respondent No.1. Ms. A.T.Javeri, APP, for the respondent No.2 - State. CORAM:J.H.BHATIA,J. DATE : 8th July, 2010. JUDGMENT: 1. Rule. Rule returnable forthwith. Heard the learned Counsel for the parties. 2. The present petitioners, who are the accused and the respondent No.1, who is the complainant in Regular Criminal Case No.614/2006 under Section 500 read with Sec. 34 IPC pending before the JMFC, 2nd Court, Thane, are residents of Om Arpan CHS Ltd., situated at Thane. Several members of the Society received anonymous letter by post making certain serious allegations against the character of the daughter of accused No.1 and threats. Members of the Society decided to approach the police for help and guidance. The respondent- complainant was also among those persons. PSI of Kapurbawadi Police Station registered a non-cognizable case under Section 507 IPC against the respondent No.1 complainant and also gave him a caution letter not to commit any cognizable 3 offence, else action would be taken against him. No further action was taken by the police nor the accused No.1 or any other accused filed any complaint against the respondent No.1 in the Court for any offence, including under Section 507 IPC. However, the respondent No.1 filed a complaint against accused Nos. 1 to 6. under Sections 500 and 501 read with Section 34 IPC. After holding enquiry under Sec. 202, the learned Magistrate issued process against the accused persons. That order was challenged by the accused persons by filing Revision Application N0.75/2007 before the Sessions Court at Thane. The Revision Application was rejected. Therefore, they have filed this Writ Petition seeking to quash the process. 3. It is contended that the accused/petitioners had not taken any action nor made any complaint against the respondent No.1. They had approached the police just for protection and guidance because the anonymous letter which was received by post by many members of the Society, was defamatory and allegations were made against the family members of the accused No.1. It is contended that the accused No.1 and others approached the police in good faith for protection of their interest and particularly the reputation of his family and the police registered the non-cognizable case under Sec. 507 against the respondent No1. It is contended that in view of this, no offence of defamation is made out. It is 4 contended that the Courts below had not considered the Explanation 4 and second, third and eighth Exceptions to Section 499 and no offence of defamation is made out and the complaint is liable to be dismissed and the process is liable to be quashed. 4. On perusal of the complaint lodged by respondent No.1 as well as his own statement recorded by the Magistrate under Sec. 202 Cr.P.C. it is revealed that the respondent No.1 and all the petitioners are residing in the same Society. On 18.8.2005, respondent No.1 had received an anonymous letter by post. Similar letters were also received by other members of the Society. After receiving that letter, the respondent No.1 approached the accused No.3/petitioner No.3 and according to the complainant, accused No.3 asked the complainant to give that letter to him. After that, the complainant collected similar letters from other members of the Society and he along with many other members of the Society went to the police station on 20.8.2005 at about 10 a.m. His statement under Sec. 202 Cr.P.C. reveals that the said letter contained defamatory material about the daughter of accused No.1. According to respondent No.1, police had detained him at the Police Station from 10 a.m. to 9.30 p.m. on that day and had also registered non-cognizable case under Section 507 against him on the report lodged by the accused No.1. The respondent No.1 had examined two witnesses during 5 the inquiry under Section 202. They included his brother Sanjeev and PSI Nataram Mhaske. The statement of PSI Nataram Mhaske under Sec. 202 Cr.P.C. reveals that accused No.1 had lodged a report against the complainant i.e. respondent No.1 and on that basis, he had registered non-cognizable case under section 507 IPC. He also deposed that accused No.1 was accompanied by the other residents of Society also. It appears that on 18.8.2005, several members of Society, including the accused persons had addressed a written letter to the Senior Police Inspector, Kapurbavadi Police Station wherein it was stated that on 17.8.2005, the members of the Society had received anonymous letter containing certain material which was defamatory and threatening. The said letter was also submitted before the police along with the letter dated 18.8.2005. The residents of the Society made a request to the police for guidance and co-operation There was no allegation in that letter against anybody In fact, that letter was signed by the respondent No.1 also. 5. It appears that after receiving that letter, the police must have orally interrogated the members of the Society and came to conclusion that letter might have been sent by the respondent No.1. However, police registered non- cognizable case to show that accused No.1 Yadav was the complainant in that matter. The record of the N.C. Register also shows that the letter contained some 6 obscene material and the members of the Society had approached the police. It may be borne in mind that after registration of the cognizable case, the police only advised the respondent No.1 to be careful in future. None of the accused, including accused No.1 filed any criminal case before any Court against the respondent No.1 making any defamatory statements against him. Assuming that accused No.1 had lodged oral report against the respondent No.1, in view of the facts and circumstances, it is clear that Eighth and Ninth Exceptions will be applicable to the facts of the case. Eighth Exception to Section 499 provides that it is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation. In the present case, the accused No.1 and other members of Society approached the police because admittedly, the letter received by them contained some obscene material and defamatory statement against the daughter of the accused No.1 and they expected guidance, which could include appropriate action against the culprit. Ninth Exception to Sec.499 provides that it is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good. Even if it is assumed that the accused No.1 and other accused made the imputation against the respondent No.1 that he had written the letters and thus that imputation was 7 made against his character, still that was made in good faith because they wanted protection of the interest of the members of the family of accused No.1 and particularly his daughter. They did not approach any unconnected person, but police who could protect the interest of the accused No.1 and his family members. In view of the legal position and the facts. which are clear from the complaint and the documents submitted with the complaint, it is clear that the case is clearly covered by Exceptions 8th and 9th and no case under section 500 IPC could be made out. 6. The learned Counsel for the respondent No.1 complainant contended that whether a case is covered by any particular Exception has to be proved at the time of trial and in support of this contention, he placed reliance upon M.A.Rumugam vs. Kittu alias Krishnamoorthy (2009) 1 SCC (Cri) 245. The accused in that case under Section 500 IPC had lodged a report with the police contending that the complainant of the case under Section 500 IPC had poured acid on the coconut trees and had damaged the same and he had asked the police to take action against the said complaint. In that case, it was contended that the case would be covered by Eighth and Ninth Exceptions and the accused sought to quash the proceedings under Section 500 IPC. The Supreme Court observed thus in paras 19, 20 and 21 :- 8 "19. For the purpose of bringing his case within the purview of the Eight and the Ninth Exception appended to Section 499 of the Penal Code, it would be necessary for the appellant to prove good faith for the protection of the interests of the person making it or of any other person or for the public good. 20. It is now a well-settled principle of law that those who plead exception must prove it. The burden of proof that his action was bona fide would, thus, be on the appellant alone. 21. At this stage, in our opinion, it would have been premature for the High Court to consider the materials placed by the appellant before it so as to arrive at a definite conclusion that there was no element of bad faith on the part of the appellant in making the said complaint before the police authorities." In that case, the accused had made an imputation against the complainant that the complainant had damaged his coconut trees by pouring acid and that was the defamatory statement. Whether that statement was true and was made in good faith would be the subject matter of the trial and the burden would lie on the 9 accused to prove that the imputation was made in good faith to protect his own interest and therefore the Supreme Court held that the matter needed to be decided by the trial Court. The facts of the present case are totally different. Even from the complaint lodged by the respondent and the statement made by him during inquiry under Section 202, it is clear that letters containing obscene material and defamatory allegations against the character of the daughter of the accused No.1 were received by the members of the Society and, therefore, the accused No.1 and other members of the Society had approached the police for guidance. In such circumstances, that could be the only sensible, proper and lawful action on the part of the members of the Society to protect the interest of the family members of accused No.1. In view of the facts and circumstances, I find that it would be misuse of the process of Court if the process is issued and accused persons are required to face trial for the offence which is clearly covered by Exceptions eighth and ninth even from the facts disclosed by the complainant himself. 7. For the aforesaid reason, the Writ Petition is allowed. The process issued by the trial Court is hereby quashed. Rule made absolute accordingly. (J.H.BHATIA,J.)