- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.4077 OF 2008 APPLICATION NO.4077 OF 2008 APPLICATION NO.4077 OF 2008 Subhash Raghuvir Jaiswal ...Applicant vs. 1.Roshan Ali Gulam Husain Japanwala 2.The State of Maharashtra ...Respondents Mr.S.R.Jaiswal applicant in person Mr.J.P.Yagnik A.P.P. for State Mr.Vinit Jain for Respondent no.1. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 26,2009 : MARCH 26,2009 : MARCH 26,2009 P.C.: P.C.: P.C.: 1. I have heard the applicant appearing in person in support of this application under sub section 4 of section 378 of the Code of Criminal Procedure,1973. The applicant filed a private complaint alleging commission of an offence under section 500 of the Indian Penal Code. The case of the applicant in the complaint is that the 1st respondent accused has been impleaded as 7th defendant in the Long Cause Suit No.2758 of 1995 filed by the applicant’s brother Arun. The 1st respondent is the plaintiff in Long Cause suit no.2571 of 1995. According to the applicant, he along with his family consisting of his brothers Ramakant and Arun are joint owners of an ancestral property known as Bhagwandas Jaiswal buildings and Raghuvir Jaiswal Nagar, situated at Jaiswal Estate, S.V.Road, Jogeshwari (West), Mumbai 400 102. According to him his family is running ancestral business. The applicant has been a Judge of the City Civil and Sessions Court, Mumbai and - 2 - at the time of filing this complaint, he was a practising Advocate. 2. On 17th April 1995, there was a huge fire in which shop no.10 including two other shops and a room were gutted. The tenants in possession of the said premises affected by fire were desirous of reconstructing the premises without consent of the owners. Thereafter, the applicant’s brother Arun filed a suit no.2785 of 1995 in the City Civil Court at Mumbai for injunction against the tenants whose premises were gutted in fire. The applicant and his elder brother joined in the said suit as 2nd and 3rd plaintiffs. On the prayer made by the first respondent accused, he was impleaded as 7th defendant in the said suit. The first respondent filed a suit no.2871 of 1995 against the applicant and his brothers in the same court. The applicant was impleaded as 3rd defendant in the said suit. The said two suits were tried together. The applicant’s brother Arun stepped into the witness box who was cross examined by Mr.M.P.Vashi, learned Advocate on behalf of the first respondent-accused. There were certain suggestions given to the applicant’s brother by the said Advocate in the cross examination. The said suggestions were to the effect that the said Arun and his brothers in collusion with Babu Khan have set the three shops as well as premises of Babu Khan on fire. The case of the applicant is that this was not the case made out by the first respondent in his suit. The - 3 - applicant’s brother Arun denied the correctness of the said suggestion. In the cross examination of the first respondent in the said suit, he admitted that he was not possessing any evidence to show that the applicant and his brother had set the shops on fire. 3. On 7th October 2002, the suit filed by the applicant and his brother was decreed and the suit filed by the first respondent was dismissed. In the suit filed by the first respondent, the learned trial Judge held that the first respondent has failed to prove that the applicant and his brothers had set the shops on fire. Though the appeals against the decrees passed in the said suits have been admitted by this court, interim relief has been denied to the first respondent. The allegation in the complaint is that the said suggestions were given to his brother Arun in his cross examination with a view to harm the reputation of the applicant and his brothers. According to the applicant, the said statement of imputations were made by the first respondent with the knowledge that the said imputations will harm the reputation of the applicant and his brothers or that the said imputations were made having reason to believe the same will harm the reputation. Going by the averments made in the complaint of the applicant, the said suggestions were given in November 2001 to the applicant’s brother Arun. The complaint was lodged by the applicant on 24th July 2003. - 4 - 4. By the impugned Judgment and Order dated 16th September 2008, the learned Magistrate has acquitted the first respondent. The learned Judge held that the complaint could have been filed only by the applicant’s brother Arun. The learned Judge observed that the applicant has not obtained permission of the court for filing the complaint. The learned Judge observed that Mr.M.P.Vashi, Advocate ought to have been examined as a witness to prove that he has given the said suggestions to the said Arun as per the instructions of the first respondent. The learned Judge observed that it is not established that the Advocate gave suggestion to Arun as per the instructions of the first respondent. The learned Judge observed that applicant’s brother Arun has not been examined. The learned Judge observed that the applicant has not proved that he was a member of the joint family. Therefore, the learned Judge proceeded to pass an order of acquittal. 5. The applicant appearing in person has made a detailed submissions. He submitted that the finding of the learned Judge on the locus of the applicant is erroneous. He submitted that the applicant was entitled to maintain the complaint as suggestion given to his brother was that even the applicant conspired with his brothers and Bubu Khan for setting the shops on fire. The applicant submitted that the - 5 - learned Trial Judge has misread the provisions of section 189 of the Code of Criminal Procedure,1973. He submitted that even the second explanation to section 499 of the said Code has been misread by the learned Judge. He submitted that it was not at all necessary to prove that he was a member of a joint family in as much as imputations was directed against the applicant and his brothers. He pointed out that he has deposed in the complaint that he had seen the first respondent giving instructions to Mr.M.P.Vashi, Advocate for asking the questions containing the imputations. He submitted that examination of his brother Arun was not at all necessary. The learned Judge could not have found fault with the applicant on the ground of non-examination of the Advocate. He submitted that the impugned order is perverse. He submitted that the learned Judge has not at all noticed that the case which was put to Arun in his cross examination by the Advocate for the first respondent was never the case made out by the first respondent in his pleadings in both the suits. He, therefore, submitted that interference is called for. 6. The learned counsel for the first respondent justified the findings recorded by the learned trial Judge. He submitted that what has been put to the applicant’s brother Arun in the cross examination is the case specifically pleaded by the first respondent in his pleadings in the City Civil Court and therefore, by no stretch of imagination the suggestions given - 6 - to Arun can be said to be defamatory. 7. I have given careful consideration to the submissions. I have perused a copy of complaint, notes of evidence and other material documents on record of the complaint. It will be necessary to refer to the questions put to the applicant’s brother Arun in his cross examination in the civil suits. The questions were in the form of suggestions which have been quoted in the complaint. The said questions read thus : "(i) You and member of your family purposely set the fire to the said shop (paragraph 15. P.W.1/12)? (ii) You and your brother had in collusion with the said Babu Khan set the said 3 shops and Babu Khan’s premises on fire ? (iii) Babu Khan had helped you setting the shops on fire ? (iv) You and your brothers deliberately remained away from the place because it was your plan and conspiracy to set the shops and room on fire (paragraph 17 P.W. 1/12)?" 8. As stated earlier, the suit filed by the applicant and his brothers as well as the suit filed by the first respondent were tried together by the City Civil Court and the - 7 - applicant’s brother Arun was examined in the said suits. In the Suit No.2871 of 1995 filed by the first respondent, the applicant was impleaded as 3rd defendant and his brothers Ramakant and Arun were impleaded as 2 and 4th defendants. In paragraph 7-A of the plaint, the first respondent specifically asserted that 2nd to 4th defendants (applicant and his two brothers) have set the fire file and a false reason was given by them that for fire was on account of short circuit. In the suit no.2758 of 1995 filed by Arun, the first respondent filed his written statement. In paragraph 9 of the written statement he stated that he had given a statement to the police that the fire was on account of mischief played by the said Arun and other owners. In paragraph 8A of the written statement, a specific contention has been raised that the plaintiffs have set the the fire and a false reason was given by them that the fire was on account of short circuit. 9. By the alleged offending suggestions given in the cross examination, the case made out by the first respondent in his pleading in both the suits that the applicant and his brothers had set the shops on fire has been put to applicant’s brother Arun in his cross examination. 10. It will be necessary to refer the evidence adduced by the applicant in the complaint. In the examination in chief the applicant has quoted the aforesaid four suggestions stating - 8 - that applicant’s brother Arun denied the correctness of the said suggestions. In the examination in chief the applicant did not state that the said suggestions were put to his brother by Shri M.P.Vashi, learned Advocate on instructions of the first respondent. However in the cross examination, the applicant stated that he saw the first respondent in the City Civil Court giving instructions to Mr.Vashi during the course of cross examination. He stated that he heard the first respondent giving instructions to Mr.Vashi for giving the said suggestions. In the cross examination, he admitted that in the said suggestions his name was not specifically taken by the Advocate. 11. Thus, in the complaint as well as in the examination in chief, the applicant did not plead that the offending suggestions were given by Mr.Vashi, learned Advocate on specific instructions of the first respondent. As the said assertion has been made only in the cross examination, it appears to be clearly an afterthought. 12. The suggestions were given by the Advocate appointed by the first respondent. When an Advocate conducts cross examination on behalf of his client, normally he does not take instructions from his client before asking every question. It is impossible to say that the every question put by the advocate during the cross examination is on specific - 9 - instructions of his client. 13. It is pertinent to note that in the plaint filed by the first respondent as well as in the written statement filed by the first respondent to the suit filed by the applicant and his brothers, a specific plea has been raised by the first respondent that the applicant and his brothers acting in conspiracy with Babu Khan had set the shops on fire. Thus, the suggestions were given to the applicant’s brother Arun in the cross examination with a view to put the specific case made out by the first respondent in his pleadings. 14. The applicant appearing in person submitted that a specific issue was framed on the said contention raised by the first respondent by the trial court and the trial court has recorded a finding that the first respondent has failed to establish that the applicant and his brothers were instrumental in setting the shops on fire. It must be noted here that the appeals arising out of the Judgment delivered by the trial court in the Civil suits have been admitted by this court and admittedly the said appeals are pending in this court and therefore, the finding on the said issue has not reached the finality. 15. Admittedly the alleged imputations form the part of the suggestions put by the Advocate of the first respondent to the - 10 - applicant’s brother in his cross examination. As pointed out earlier, the Advocate appointed by the first respondent has put the case of the first respondent in his pleadings to the applicant’s brother in his cross examination as is always done in trial of civil suits. If the case of the applicant was that the suggestions were given on the specific instructions of the first respondent by his Advocate, evidence to that effect ought to have been adduced by the applicant by examining the learned Advocate. 16. The applicant appearing in person has placed reliance on the decision of Full Bench of this court in case of Bai Shanta vs. Umrao Amir Malek (A.I.R.1926 Bombay 141). In the said decision the Full Bench held that the defamatory statements on oath or otherwise made by a party to the execution proceedings fall within section 499 of the Penal Code and are not absolutely privileged. The Full Bench held that relevant statements made by the witness on oath or on solemn affirmation in judicial proceedings are not protected. The Full Bench held that the statements made by the accused persons under section 342 of the Code of Criminal Procedure,1898 are not protected from being subjected to the prosecution for defamation. 17. The applicant appearing in person has also relied upon the decision of the Apex Court in case of Sukra Mahto vs. - 11 - Basdeo Kumar Mahto and another [1971 (1) S.C.C. page 885]. The Apex Court in the said decision held that ingredients of the Ninth Exception to section 499 of the Indian Penal Code will apply provided imputation must be made in good faith, the imputation must be for protection of the interest of the person making it or of any other person or for the public good. The applicant also relied upon the decision of the Madras High Court in case of S.Antony Vs.G.S.Naidu (A.I.R. 1967 Madras page 395). The Madras High Court held that privilege under section 126 of the Evidence Act is not intended for committing any offence and the defamatory imputations in the instructions to the Advocate would not be privileged communications. He relied upon another decision of Apex Court in case of M.C.Verghese vs. T.J.Poonan and another [1969 (1) SCC page 37]. 18. It must be however noted here that the finding recorded by the learned trial Judge on the issue of locus of the applicant may not be correct. In the facts of the present case, the alleged imputations are in the form of suggestions given by the Advocate of the first respondent during the course of cross examination of the applicant’s brother. The applicant has not asserted in the complaint that the specific instructions were given by the first respondent to his Advocate for giving the said suggestions. The finding of the learned Trial Judge that it is very difficult to come to the - 12 - conclusion that the suggestions were put to the witness by the learned Advocate as per the instructions of the first respondent, is certainly a possible conclusion. Therefore, no case is made out for grant of leave. 19. The application is rejected. JUDGE JUDGE JUDGE