1 wp.2456.08.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2456 OF 2008 1. Trade-Wings Limited, a public limited company incorporated under the Companies Act, 1956, having its corporate office at 18/20, K.Dubash Marg, Kalaghoda, Fort, Mumbai – 400 023 and its registered Office at 6, Mascerenhas Building, M.G.Road, Panaji, Goa – 403 001. 2. Trade-Wings Hotels Limited, a public limited company incorporated under the Companies Act, 1956, having its corporate office at 18/20, K.Dubash Marg, Kalaghoda, Fort, Mumbai – 400 023 and its registered Office at 6, Mascerenhas Building, M.G.Road, Panaji, Goa – 403 001. 3. Dr.Shailendra P.Mittal, Director of both M/s.Trade-Wings Limited And Trade-Wings Hotels Limited, r/o. Mittal Bhavan, 52-A, Peddar Road, Mumbai – 400 026. 4. Mrs.P.A.Chotrani, Director of both M/s.Trade-Wings Limited And Trade-Wings Hotels Limited, r/o. 111, Maker Towers, `J’ Wing, Cuffe Parade, Mumbai – 400 001. 5. Ajay Vageria, Director of Trade-Wings Hotels Limited, r/o. 43, Navlal Building, RDO-4, Sector-1, Charkop, Kandivli, Mumbai – 400 067. 2 wp.2456.08.sxw 6. R.J.Agarwal, Director of Trade-Wings Hotels Limited, r/o. 73, Sunder Nagar, Connaught Place, New Delhi – 110 033. ...Petitioners Versus 1. State of Maharashtra, through the office of the Government Pleader. 2. The Ld.Addl.Chief Metropolitan Magistrate, IIIrd Court at Hyderabad, Andhra Pradesh. 3. Dwarkanath Boppanna, aged about 52 years, Director of M/s.Tulip Star Leisure & Health Resorts, a Company incorporated Under the Companies Act, 1956 and having its registered office at Chander Mukhi, Nariman Point, Mumbai – 400 021 and r/o Plot No.524, Road No.27, Jubilee Hills, Hyderabad – 500 033. ..Respondents WITH CRIMINAL WRIT PETITION NO.2146 OF 2009 1. Trade-Wings Limited, a public limited company incorporated under the Companies Act, 1956, having its corporate office at 18/20, K.Dubash Marg, Kalaghoda, Fort, Mumbai – 400 023 and its registered Office at 6, Mascerenhas Building, M.G.Road, Panaji, Goa – 403 001. 3 wp.2456.08.sxw 2. Trade-Wings Hotels Limited, a public limited company incorporated under the Companies Act, 1956, having its corporate office at 18/20, K.Dubash Marg, Kalaghoda, Fort, Mumbai – 400 023 and its registered Office at 6, Mascerenhas Building, M.G.Road, Panaji, Goa – 403 001. 3. Dr.Shailendra P.Mittal, Director of both M/s.Trade-Wings Limited And Trade-Wings Hotels Limited, r/o. Mittal Bhavan, 52-A, Peddar Road, Mumbai – 400 026. 4. Mrs.P.A.Chotrani, Director of both M/s.Trade-Wings Limited And Trade-Wings Hotels Limited, r/o. 111, Maker Towers, `J’ Wing, Cuffe Parade, Mumbai – 400 001. 5. Ajay Vageria, Director of Trade-Wings Hotels Limited, r/o. 43, Navlal Building, RDO-4, Sector-1, Charkop, Kandivli, Mumbai – 400 067. 6. R.J.Agarwal, Director of Trade-Wings Hotels Limited, r/o. 73, Sunder Nagar, Connaught Place, New Delhi – 110 033. ...Petitioners Versus 1. State of Maharashtra, through the office of the Government Pleader. 4 wp.2456.08.sxw 2. The Ld.Addl.Chief Metropolitan Magistrate, IIIrd Court at Hyderabad, Andhra Pradesh. 3. Usha Boppanna w/o B.Dwarkanath, aged about 45 years, Occu: Business, r/o Plot No.524, Road No.27, Jubilee Hills, Hyderabad – 500 033. ...Respondents ...... Mr.Haresh Jagtiani, Sr.Counsel with Mr.Tejas H.Bhatt, Mr.Siddhesh S.Bhole, Ms.Natasha Buhariwala, Ms.Nisha Srinivasan i/b M/s.Haresh Jagtiani & Associates for Petitioners. Ms.S.V.Gajare, A.P.P. for State. Mr.Peter Lobo with Mr.Rajesh Mirchandani for Respondent No.3. ...... CORAM:- A.M.KHANWILKAR & U.D. SALVI, JJ DATED :- SEPTEMBER 20, 2010. ORAL JUDGMENT (Per A.M.Khanwilkar, J.) : 1. In both these Petitions, preliminary objection regarding maintainability of Writ Petitions has been raised on behalf of the private Respondents. According to the private Respondents, Writ Petition under Article 226 of the Constitution of India to question the validity of order issuing process, passed by the Criminal Court of some other State which is not subordinate to this Court, cannot be entertained by this Court. Besides, even though the Petitions 5 wp.2456.08.sxw instituted by the Petitioners are under Article 226 of the Constitution of India, the grounds agitated therein are in the nature of invoking supervisory jurisdiction of this Court and since the trial Court which has issued process is outside the territorial jurisdiction of this Court, this Court should be loath in exercising writ jurisdiction. 2. The background in which both these Petitions have been instituted in this Court, in brief, are as follows: The renumbered Respondent No.2 in the respective Petitions have filed complaints before the Court of the IIIrd Additional Chief Metropolitan Magistrate at Hyderabad and XVIIth Additional Chief Metropolitan Magistrate being CC No.1178/2008 and CC No. 1577/2008 respectively. The first complaint is filed by one Dwarkanath Boppanna s/o Late Shri Dr.B.V.Ranga Rao Garu Respondent No.2 in W.P.No.2456 of 2008). Whereas, the latter complaint has been filed by Mrs.Usha Boppanna-wife of above named Dwarkanath-(Respondent No.2 in W.P.No.2146 of 2008). According to the Petitioners, both these complaints have been filed on the same day as a counter blast to the original complaint filed by Petitioner No.2 in the Court at Mumbai against the above named 6 wp.2456.08.sxw Boppanna Dwarkanath and five others for offence under Section 409, 468, 471 r/w 34 and 120-B of I.P.C. Be that as it may, in the former complaint filed by said Dwarkanath, it is alleged that the Petitioners herein have committed offence of defamation by publication of malicious imputation of print by electronic message/mail dated 5th June 2007. The contents of the said mail read thus: "The Bogmallo Beach Resort Goa (Bogmallo) owned by Trade Wings Hotels Ltd. (TWHL) was under the management of Mr. Ajit Kerkar, Chairman/Director of Tulip Hotel Pvt.Ltd. during the period 2000-2006. During his tenure as Director, Mr. Kerkar through his group company M/s. Tulip Star Leisure & Health Resorts has unauthorizedly sold Time Shares of Bogmollo, without knowledge of TWHL. Mr. Kerkar has also siphoned off the revenue generated from the said sale of Time Shares. Consequently, after having discovered the illegal acts of Mr. Kerkar, TWHL vide their Advocate's letter dated 27th January 2007 have terminated, effective 1st November 2006, all the understandings and arrangements with Mr. Kerkar and have also initiated criminal proceedings in the Additional Chief Metropolitan Magistrates Esplanade Court, Mumbai being 14/M of 2007 where process has been issued against Mr. Kerkar and his co-conspirators under Sections 409, 468, 471, 120 B and 34 of the Indian Penal Code for Trade Wings Hotels Ltd." In the said complaint, it is prayed that cognizance of the case be taken against the Petitioners herein under Section 500 r/w Sections 499, 110, 34, 120-B of the Indian Penal Code (hereinafter referred to as `the I.P.C.’) and to try the Petitioners in accordance with law. The said complaint has been filed on the assertion that the 7 wp.2456.08.sxw private Respondent (renumbered Respondent No.2) is one of the Directors of M/s.Tulip Stars Hotels Ltd., a public Limited Company. In that capacity, he was aggrieved by the malicious publication by the Petitioners referred to earlier. It is his case that on account of the alleged publication, the business prospects of the Company of which he is the Director was likely to be affected and it would lower the prestige and reputation of the said Company in the eyes of public. In the complaint, it is asserted that the alleged malicious publication was brought to his notice by one Mr.Arup Sen in Hyderabad and after due verification, when it was revealed that such publication was in fact issued by the Petitioners, the present complaint has been filed. 3. For considering the controversy on hand, it may be useful to refer to Paragraphs 22, 23 and VIII of the complaint which gives justification for invoking criminal action before the Court at Hyderabad, although the alleged malicious material was allegedly sent from Mumbai by the Petitioners. The said Paragraphs read thus: "22. Mr. Arup Sen residing at Mumbai and a Travel Agent has offices at Mumbai and Hyderabad enquired from the Complainant about the truthfulness of the electronic sms/e-mail dated 5th June 2006 issued by accused No.1 and its officers and they also questioned the truth and integrity of the complainant's company in view of this email. 8 wp.2456.08.sxw 23. The Complainant is having his Office-Cum-Residence at Plot No.524, Road No.27, Jubilee Hills, Hyderabad-500 033 and was asked about the said defamed note dated 05-06-2007 at Hyderabad and hence the enquiry regarding the defamatory note dated 05-06-2007, the complainant's Company and its Director were defamed by the accused residing at Mumbai and travel agent having a business at Hyderabad as well. Hence this Hon'ble Court has jurisdiction to try and entertain the present complaint. The complaint has been filed within a period of limitation. VIII. JURISDICTION: The complainant happened to be the resident of H. No. 524, Road No. 27, Jubilee Hills, Hyderabad-33 and got access to the internet in which the defamatory material was circulated through electronic message / mail dated 5th June 2007 was noticed. The said address of the complainant falls very much well within the territorial limits of Police Station, Jubilee Hills, which happens to fall within the jurisdictional limits of this Hon'ble Court; hence the said complaint can be tried by this Hon'ble Court.” 4. In the latter complaint which is filed by the wife of Dwarkanath Boppanna, the basis for the complaint is the same alleged publication sent by e-mail. Even in this complaint, the private Respondent (renumbered Respondent No.2) asserts that she is a share holder of Tulip Star Hotel Ltd., a Public Limited Company holding a substantially large number of equity share capital. She asserts that she is aggrieved with the defamatory statements made against the Head of an otherwise stable Corporate Body of the listed group of companies, which would culminate in having adverse impact on the shares of her Company in the share market. This complainant claims that the alleged malicious e-mail dated 5th June 2007 was published 9 wp.2456.08.sxw and circulated within the jurisdiction of the Court at Hyderabad and the same was brought to her notice by innumerable persons who made inquiry with the complainant about the truthfulness of the said electronic e-mail dated 5th June 2007 issued by accused No.1 and its Officers. For justifying the initiation of complaint before the Court at Hyderabad, the complainant has asserted in Paragraph 21 and VIII of the complaint as follows: "21. The complainant is residing at Plot No.524, Road No.27, Jubilee Hills, Hyderabad - 500 033 and was asked about the said defamed note dated 05/06/2007 at Hyderabad and hence the enquiry regarding the defamatory note dated 05/06/2007 was made with the company and its Director(s) were defamed by the accused residing at Mumbai and travel agent having a business at Hyderabad as well. Hence this Hon'ble Court has jurisdiction to try and entertain the present complaint. The complaint has been filed within a period of limitation. VIII. JURISDICTION : The complainant happened to be the resident of H. No. 524, Road No. 27, Jubilee Hills, Hyderabad-33 and got access to the internet in which the defamatory material was circulated through electronic message / mail dated 5th June 2007 was noticed. The said address of the complainant falls very much well within the territorial limits of Police Station, Jubilee Hills, which happens to fall within the jurisdiction limits of this Hon'ble Court hence the said complaint can be tried by this Hon'ble Court.” 5. After the above said complaints were filed, the complainants in respective complaints submitted their sworn statement before the Magistrate. The Magistrate after considering the said sworn statement of the complainants and recording the same, issued process in the 10 wp.2456.08.sxw respective complaints. In the former complaint process was issued on 19th June 2008. The said order reads thus: "Sworn Statement of Complainant is recorded. Taken on file u/s. 500, 499, 110, 120-B & 34 IPC against A1 to A6. Issue SS to A1 to A6 through Court & RP. Call on 27/8/08. Sd/-19/6.” 6. In the second complaint, the Magistrate issued process vide order dated 14th August 2008 after considering the sworn statement. The order issuing process reads thus: "Complainant present. Sworn Statement recorded. Taken cognizance against A1 to A6 under Sections 500, 499, 110, 120-B and 34 of the Indian Penal Code and Section 85 r/w Section 66 of Information Technology Act. Issue summons to A1 to A6 through Court and by R.P. Call on 27-8-2008.” 7. As soon as the order of process was issued on 19th June 2008 in CC No.1178/2008 by the concerned Magistrate, the Petitioners rushed to this Court by way of Writ Petition under Article 226 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Cr.P.C.’), on 14th November 2008 being Criminal Writ Petition No.2456 of 2008, challenging the order of the Magistrate at Hyderabad issuing process dated 19th June 2008. Initially, the Petitioners had impleaded the 11 wp.2456.08.sxw Additional Chief Metropolitan Magistrate, IIIrd Court at Hyderabad, Andhra Pradesh as Respondent No.2 but later on deleted the said Respondent from the array of parties on the basis of order dated 29th June 2010. However, during the course of hearing before us, the Counsel appearing for the Petitioners, in all fairness, accepted that in absence of the said Respondent, it may be doubtful as to whether the relief as claimed in the nature of Writ of Certiorari can be taken to its logical end. Therefore, the learned Counsel appearing for the Petitioners asked for leave to amend the Petition so as to once again implead the Additional Chief Metropolitan Magistrate as party Respondent to the Writ Petition for full, complete and effectual adjudication of the present proceedings. That oral request was accepted and we proceeded with the hearing of the matter on the assumption that the concerned Metropolitan Magistrate is impleaded as Respondent No.3 in the present Writ Petition. 8. Similar situation obtains insofar as the latter complaint filed by the Respondent (renumbered Respondent No.2 in the companion Writ Petition). As soon as the process was issued in the said complaint No.CC/1577/2008, the Petitioners rushed to this Court by way of 12 wp.2456.08.sxw Writ Petition No.2146/2009 which was filed on 7th August 2009. Even in this Writ Petition, initially, the Petitioners had impleaded the concerned Metropolitan Magistrate as party Respondent but was deleted in terms of the order of the Court. As per oral request, we proceeded with the hearing on assumption that the concerned Magistrate has once again been impleaded as Respondent No.3 even in this Petition. Counsel for the Petitioners assured to carry out necessary amendment in both these Petitions in this behalf. 9. Insofar as the former Writ Petition is concerned, the same was taken up for hearing on 8th December 2008 when after hearing the parties, the Court passed the following order: "1. Heard. 2. The main point involved so far as this petition is concerned is whether the respondent-complainant is aggrieved person and since the facts are disputed the respondent-complainant is hereby directed to file short affidavit limited to the point as to whether he is a person aggrieved by the particular publication. Complainant-respondent is further called upon to state on oath and/or by documentary evidence to establish that he is the Director of M/s. Tulip Star Leisure & Health Resorts Ltd. on the date when he filed the complaint before the Chief Metropolitan Magistrate, Hyderabad. S.O. to 10-12-2008.” 10. That Writ Petition was once again listed on 15th December 2008 when the same was eventually admitted, in the 13 wp.2456.08.sxw circumstances mentioned in the said order. The order dated 15th December 2008 reads thus: "1. In this matter we have recorded the main controversy which we have to adjudicate by order dated 8th December, 2008. Thereafter we have noticed that the affidavit which was filed by the respondent was not satisfactory and it was vague. Therefore, today the matter was fixed for the respondent to produce evidence on record showing that he is the Director of a particular Company on the date of filing of the complaint. Today the learned Counsel who is conducting the matter is absent. The adjournment is being sought on the ground that he is not available as he has left for USA. When the matter is fixed on board and if the respondent's Counsel is not available for whatever reasons, the respondent could have made alternate arrangement and at least have produced the necessary documents which the respondent relies in support of the complaint and that he is aggrieved person. These documents should have come before this Court. Therefore, from the conduct of the respondent we are satisfied that the respondent is interested in protraction the matter instead of getting if adjudicated. 2. Therefore, Rule. 3. Interim relief in terms of prayer clause (b).” 11. Insofar as the latter Writ Petition is concerned, even though it was intended to be heard along with former Writ Petition, for some reason, formal order of admitting the said Writ Petition was not recorded. Accordingly, the said Writ Petition came up for admission before us. By consent, we ordered both the Writ Petitions to be placed for hearing to consider the preliminary objection raised on behalf of the private Respondents. Accordingly, in the present order, we 14 wp.2456.08.sxw propose to deal essentially with the preliminary objection raised on behalf of the private Respondents. 12. In both these Writ Petitions, the principal grievance is that the concerned Magistrate issued process in the respective complaints without application of mind. According to the Petitioners, the order issuing process has been issued mechanically. The concerned Magistrate did not make any inquiry as was warranted in terms of Section 202 of the Cr.P.C., before issuing process. It is next contended that the private Respondent (renumbered Respondent No. 2) by no stretch of imagination, can be said to be aggrieved party in the context of so called imputations contained in the publication in question. It is next contended that insofar as the second complaint is concerned, the Magistrate has completely glossed over the fact that neither in the complaint nor in the Sworn Statement filed by the Respondent, any justification is forthcoming to constitute offence under Information Technology Act, 2000. Besides, both the complaints filed by the respective private Respondents (renumbered Respondent No.2) are founded on frivolous and baseless pleas. As a matter of fact, the same have been filed to stall the complaint filed by 15 wp.2456.08.sxw the Petitioners in the Court at Mumbai, in which process was issued against the named accused. Further, the communication merely restates the position arising out of the said complaint filed by the Petitioners in earlier point of time and at any rate, such publication, by no standard, can be considered as defamatory or resulting in defamation. In any case, the complaints have been filed after lapse of more than one year from the date of alleged publication. Considering all these aspects, it is obvious that the two complaints have been filed against the Petitioners in the Court at Hyderabad only out of vengeance against the Petitioners and were not bonafide ones. These are the broad contentions raised in the two Writ Petitions filed before us. 13. In the first Writ Petition, for justifying the maintainability of the Writ Petition before this Court, to assail the order issuing process of the Magistrate at Hyderabad, the Petitioners have asserted as follows: "14. The Petitioners submit there is no alternative efficacious remedy available to them. There is no provision for discharge in a summons triable case, and the remedy of recalling of process is not available. The remedy of filing a Criminal Revision Application is also not an alternative, efficacious remedy and is fraught with hardship, inconvenience and prejudice to the Petitioners. The fundamental rights of the Petitioners under Article 21 of the 16 wp.2456.08.sxw Constitution of India have been infringed upon. A prosecution of this nature entails hardship and travel to another State to face a criminal trial, which on the face of it, does not deserve to be tried. In these circumstances, the Petitioners have no other avenue except to file the present Writ Petition. 15. Respondent No.3 is amenable to the jurisdiction of this Hon’ble Court since he claims to be a Director of a company whose registered office is within the jurisdiction of this Hon’ble Court. The allegedly defamatory email originated from the Mumbai office of the Petitioner. It contained an account of the proceedings filed by the Petitioners in the Ld. Addl. Chief Metropolitan Magistrate’s Court at Esplanade, Mumbai. The revenue generated from the illegal sale of timeshares was to be accounted for by Respondent No.3 and his co- Accused in Mumbai. Respondent No.3’s witness, Mr.Arup Sen is also a resident of Mumbai. A substantial part of the cause of action has arisen within the jurisdiction of this Hon’ble Court, and therefore Respondent No.2 is subject to the jurisdiction of this Hon’ble Court too. The Petitioners’ life and liberty as guaranteed under Article 21 of the Constitution of India is under threat and jeopardy where they ordinarily reside or carry on business, which area is within the territorial jurisdiction of this Hon’ble Court.” 14. On similar lines, even in the latter Writ Petition, the justification for invoking the jurisdiction of this Court is stated in Paragraphs 14 and 15 in the following words: "14. The Petitioners submit there is no alternative efficacious remedy available to them. There is no provision for discharge in a summons triable case, and the remedy of recalling of process is not available. The remedy of filing a Criminal Revision Application is also not an alternative, efficacious remedy and is fraught with hardship, inconvenience and prejudice to the Petitioners. The fundamental rights of the Petitioners under Article 21 of the Constitution of India have been infringed upon. A prosecution of this nature entails hardship and travel to another State to face a criminal trial, which on the face of it, does not deserve to be tried. In these circumstances, the Petitioners have no other avenue except to file the present Writ Petition. 15. Respondent No.3 is amenable to the jurisdiction of this Hon’ble Court since she claims to be a shareholder of a company whose registered office is within the jurisdiction of this Hon’ble 17 wp.2456.08.sxw Court. The allegedly defamatory email originated from the Mumbai office of the Petitioner. It contained an account of the proceedings filed by the Petitioners in the Ld. Addl. Chief Metropolitan Magistrate’s Court at Esplanade, Mumbai. The revenue generated from the illegal sale of timeshares was to be accounted for by the husband of Respondent No.3 and his co-Accused in Mumbai. Respondent No.3’s witness, Mr.Arup Sen is also a resident of Mumbai. A substantial part of the cause of action has arisen within the jurisdiction of this Hon’ble Court, and therefore Respondent No. 2 is subject to the jurisdiction of this Hon’ble Court too. The Petitioners’ life and liberty as guaranteed under Article 21 of the Constitution of India is under threat and jeopardy where they ordinarily reside or carry on business, which area is within the territorial jurisdiction of this Hon’ble Court.” 15. As aforesaid, both the Writ Petitions have been filed to invoke jurisdiction of this Court under Article 226 of the Constitution of India r/w Section 482 of the Cr.P.C. However, during the course of arguments, Counsel appearing for the Petitioners has, in all fairness, stated that the Petitioners would pursue their remedy before this Court only under Article 226 of the Constitution of India. The Petitioners have sought leave to amend the Petitions so as to restrict their Petitions only under Article 226 of the Constitution of India. We have no difficulty in acceding to this request. We hope that necessary amendment will be carried out by the Petitioners in this behalf. 16. With reference to the preliminary objection taken by the private Respondents about the maintainability of the two Writ 18 wp.2456.08.sxw Petitions, the Counsel appearing for the respective parties have invited our attention to some of the decided cases on the point. Much emphasis was placed on the decision of the Apex Court in the case of Navinchandra N.Majithia vs. State of Maharashtra & Ors. reported in (2000) 7 SCC 640. Reliance was also placed on the decision in