Shri Girish Kakkar And Another Petitioners v. Dr. (Mrs) Dhanwanti And Others S

Y.K Sabharwal, J.:— This is a petition under section 482 of the code of Criminal Procedure (for short ‘the Code’) seeking quashing of criminal proceedings and the order dated 10th October, 1986 passed by Metropolitan Magistrate, Delhi. By the impugned order notice has been given to the petitioner and other accused under section 251 of the code holding that prima facie case is made out against the accused persons under Section 500 of the Indian Penal Code.

2. Respondent No. 1 Dr. (Ms.) Dhanwanti, is the complainant. She has filed a complaint dated 26th August 1981 against seven accused under Section 500, Indian Penal Code. Petitioner No. 1 Girish Kakkar has been arrayed as accused No. 6. Petitioner No. 2 Ram Saran Kakkar was arrayed as accused No. 7. Ram Saran Kakkar died during the pendency of the present petition. The allegations made in the complaint are briefly these: —

3. The complainant is the legally wedded wife of Sh .D. N. Waswani, who was arrayed as accused No. 1. D. N. Waswani died after filing of the complaint. The complainant along with her husband was living and cohabiting as such at cottage No. 4-A, First floor, West Patd Nagar, New Delhi. Accused No. 1 who was away to Hongkong on business trip arrived in India on 20th December 1980. The complainant- went to receive him at Palam Airport and informed him that Girish Kakkar has taken po session of the premises referred above on false and frivolous representation. An application was filed by the complainant for setting aside the ex-parte order passed by Sh. Shiv Charan Gupta, Additional Rent Controller, Delhi on 1st August 1980. The complainant has also moved various other applications for restitution of possession of the demised premises and the good taken illegally by Girish Kakkar. D. N. Waswani was admitted by complainant in Dr. Ram Manohar Lohia Hospital on 26th December, 1980 and he was kidnapped and removed by accused 2, 3, 4 and 5 from the said hospital on 3rd January, 1981 and since then he is kept in illegal custody of accused No. 2 and 3 at 13, Bazar Lane, Bangali Market, New Delhi. In order to black mail, harass and defame the complainant accused No. 2 and 3 have made imputations both by signs and by visible representations as well as in writing that the complainant is not the wife of D. N. Waswani intending to harm and having reasons to believe that such imputations will harm the reputation of the complainant in the eyes and estimation of relatives, friends and associates of the complainant and in the eyes of general public. Similar imputations that the complainant is not the wife of D. N. Waswani were made by accused No. 2, 3, 4 and 5 in other proceedings the particulars of which have been given in the complaint. In regard to accused No. 6 and 7 only allegations made in the complaint are contained in para 14 which reads as under: —

“That the accused No. 6 and 7 has made written sub missions in Kuldip Singh court denying the relationship of the complainant with the accused No. 1 thus defaming her.”

4. Accused No. 2, Smt. Kamla Chugani claims to be daughter of D. N. Waswani. Accused No. 3 Gul Chugani, claims to be husband of Kamla Chugani and son-in-law of D. N. Waswani. Gul Chugani and Kamla Chugani are respondents 3 and 4 in this petition. Sheela Chaman, accused No. 4 and Baldev Chaman, accused No. 5 are said to be daughter and son-in-law of Kamla Chugani and Gul Chugani. Baldev Chaman and Sheela Chaman are respondents 5 and 6 respectively in this petition. Respondent No. 2 is the State.

5. The accused were directed to be summoned for offence under section 500 IPC by order made by Metropolitan Magistrate on 24th July 1982, on coming to the conclusion that prima facie case is made against the accused persons. The order dated 24th July 1982 was challenged by respondent 3 to 6 and D. N. Waswani by filing a petition in this court (Crl. M. (M) 257/84). Girish Kakkar and Ram Saran Kakkar are not impleaded as parties in the said petition. That petition was dismissed by Charanjit Talwar, J. on 25th October 1985 primarily relying on the decision of the Supreme Court in Kacheru Singh v. State of U.P & Another, AIR 1982 SC 784 (1). As stated earlier notice under section 251 of the code was given on 10th October 1986 to all accused persons which led to the filing of the present petition.

6. Sh. S. K. Aggarwal, learned counsel for the petitioner, contends, that even if the complaint and other material placed on record, at the time of summoning, is taken as it is, without adding or substracting anything, no offence against the petitioner is made out and proceedings against, the petitioner are abuse of the process of court and are accordingly liable to be quashed. The contention is that even if allegation contained in Para 14 of the complaint or statement of witnesses are assumed to be correct, for sake of arguments, still no case is made out against the petitioner as mere denial of relationship as alleged in the judicial proceedings ipso facto cannot give rise to criminal proceedings for defamation. Counsel further contends that, it is apparent from the complaint, that the intention of the petitioner was only to protect the order of eviction and not to defame the complainant. Sh. K. K. Sud, learned counsel for respondents 3 to 6 also made a strong plea for quashing the proceedings against his clients as well. Respondent No. 1, Dr. Dhanwanti, has appeared in person. She has vehemently opposed the petition. As a preliminary objection she contends that in view of the order dated 25th October 1985 in Crl. M. (M) 257/84 upholding the order of summoning the present petition is not maintainable. I will first examine the preliminary objection.

7. The petitioner was not a party in Crl. M. (M) 257/84 and therefore there was no occasion for the court to examine whether any prima facie ease has been made out against him or not. As noticed earlier the contention urged on behalf of the petitioner is that a summing the allegations made in the complaint and other material placed of record without adding or substracting anything, as correct, no offence against the petitioner is made out. This aspect, in regard to the petitioner was not examine in Crl. M. (M) 257/84 as he was not a party in the said proceedings. The preliminary objections is misconceived. The other part of the preliminary objection relate to respondents No. 3 to 6. Respondent No. 1 contends that respondent No. 3 to 6 having failed earlier in their attempt to get the proceedings quashed are estopped from again seeking quashing of the proceedings as the second prayer for quashing is not maintainable. Law does not bar a person from making successive petitions for quashing. The dismissal of earlier petition by itself will not bar respondents 3 to 6 from making a prayer for quashing of the proceedings. The High Court under section 482 of the code has wide inherent power to quash criminal proceedings pending in a lower court to prevent abuse of the process of the court and to secure ends of justice. In Superintendent and Rememberance and Legal Affairs, W. B. v. Mohan Singh and others, AIR 1975 SC 1002 (2), the Supreme Court while examining the scope of power under section 482 of the code held that the fact that a similar application for quashing the proceedings on a former occasion was rejected by the High Court on the ground that the question involved were purely questions of fact which were for the court of fact to decide, is no bar to the quashing of the proceedings at the later stage and such quashing will not amount to revision or review of the High Court's earlier order. The preliminary objection raised against respondents 3 to 6 is also misconceived. However, it is a different aspect altogether whether, on facts, respondents 3 to 6 have been able to make out or not a case for quashing the proceedings. On these aspect the case of the petitioner and that of respondents 3 to 6 will have to be examined separately with a view to find out whether the allegations made in the complaint or the statement of witnesses recorded in support of the same, taken at their face value, make out absolutely no case against each set of accused. In regard to plea of quashing made on behalf of respondents 3 to 6 it has also to be examined whether there has been any such development after the decision dated 25th October, 1985 that this court should take a different view than taken earlier.

8. Before adverting to the facts, it would be useful to notice some judicial pronouncements of Supreme Court laying down guidelines to be borne in mind while considering petitions for quashing criminal proceedings. In Smt. Nagawwa v. Veeranna Shivalingappa Konjal, AIR 1976 SC 1947 (3), the Supreme Court has held that the order of Magistrate issuing process against the accused can be quashed or set aside in the following cases: —

“ (1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused.

(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused.

(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) Where the complainant suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

9. The aforesaid cases are not exhaustive but are purely illustrative so as to provide sufficient guidelines to indicate contingencies where the High Court can quash proceeding. The law laid down in Nagawwa's case was cited with approval in Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, AIR 1983 SC 67 (4). In this decision on the scope of inherent jurisdiction of High Court it was held that section 482 of the code confers a separate and independent power on the High Court alone to pass orders ex debito Justitiae in cases where grave and substantial injustice ha been done or where the process of the court has been seriously abused.

10. It is now to be examined whether the case of the petitioner fall within any of the illustrations or the guidelines set out above. The statutory provisions under which the complaint has been filed may also be noticed.

11. Respondent No. 1 has filed the complaint against the petitioner and other accused under section 500 IPC. Section 500 IPC provides that whoever defame another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. Which acts constitute defamation has been laid down in Section 499 IPC. The said section provides that whoever, by word either spoken or intended to be read, or by signs or by visible representations, makes or publisher any imputation concerning any per on intending to harm, or knowing or having reason to believe that such imputation will harm, reputation of such person, is said, except in the cases provided in the section, to defame that person. In section 499 IPC 10 exceptions have been provided. The 9th exception which is relevant for the present purposes provides that it is not defamation to make an imputation on the character of another provided that the imputation is made in good faith for the protection of the interest of the person making it, or of any other person or for the public good.

12. Turning to the facts of the present case, in so far as the petitioner is concerned, the allegations in the complaint are that the petitioner made written submissions in Kuldip Singh's court denying the relationship of the complainant with the accused No. 1 thus defaming her. Para 14 of the complaint which alone contains allegations against the petitioner has been extracted above. What relationship has been denied is not stated in the complaint. What precise written submissions were made is also not stated. In what manner the complainant was defamed is also not stated. Assuming the denial by petitioner was of the alleged relationship of the husband and wife between complainant and accused No. 1, it is to be remembered that besides other relations accused No. 1 himself was denying the said relationship. The petitioner was only a landlord. He had obtained an order of eviction I reply to application of the complainant for restoration of possession or for setting aside the eviction order, the aforesaid relationship pleaded by the complainant, is merely denied by the landlord, without anything more. On these facts and circumstances can such vague and general denial which is attributed to the petitioner, constitute defamation, admitting for he present purposes, the allegations in the complaint to be correct. The answer, in my view, has to be in the negative. From the facts and circumstances setout above, it seems clear, that the imputation attributed to the petitioner in the complaint are not capable of being understood in a defamatory sense. The context in which the alleged denial is made, no defamatory intention, knowledge or belief can be attributed to the petitioner. In the complaint no such intention, knowledge or belief has been alleged against the petitioner and only a general allegation that petitioner defamed the complainant has been attributed to him. Such vague and general imputation, without anything more, cannot, in my view, constitute defamation.

13. Respondent No. 1, who has appeared in person, has placed strong reliance on decision of the Supreme Court in Kacheru Singh v. State of UP and another AIR 1982 SC 784. Kacheru Singh's judgment is a very short one and it will be useful to extract relevant Para No. 2 from the said decision which reads as under: —

“We do not see any justification, though we are not expressing any opinion on the merits of the case, for the order passed by the learned Additional Sessions Judge, Meerut in Criminal Revision No. 83 of 1979, which was affirmed by the High Court of Allahabad by its order dated 7-5-80. All that the learned Magistrate had done was to issue a summons to respondent No. 2-Satyavir Singh. If eventually, the learned Magistrate comes to the conclusion that no offence was made out against Satyavir Singh, it will be open to him to discharge or acquit him, as the case may be. But it is difficult to appreciate why the order issuing ‘summons’ to the accused should be quashed. We, therefore, set aside the orders passed by the Sessions Court and the High Court, restore that of the learned Special Judicial Magistrate, First Class, Meerut, dated February 2, 1979 and remit the matter to the trial court for disposal in accordance with law.”

14. It is evident that the Supreme Court did not lay down as a general proposition that order issuing process shall not be set aside under any circumstances. The guidelines laid down in Nagava's case (supra) have been followed in various subsequent decisions and were reiterated by the Supreme Court in Ram Krishan Rohtagi's case (supra). It is thus well settled that where the allegations made in the complaint or the statement or witnesses recorded in support of the same taken on their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is made against the accused, the proceedings can be quashed by High Court in exercise of its inherent powers under section 482 of the code. It is not possible to hold that the order issuing process cannot be set aside under any circumstances. Whether on facts a case for quashing is made out or not is altogether a different aspect. That aspect depends on the facts and circumstances of each case. The decision in Cr. Misc. 257/84 also does not advance the case of respondent No. 1 against the petitioner. In the said petition, the court did not examine whether on allegations made in the complaint or statement of witnesses recorded in support of the same, taken at their face value, make out any case against the petitioner or not.

15. Having noticed in brief the allegations in the complaint against the petitioner, it would be appropriate at this stage to refer to some of the decisions dealing with the question of defamation. In R. Palaniswamy v. M. Rasu Chettiar and others, 1974 Crl. Law Journal 1209 (5) the question for consideration was whether the dispute of paternity ipso facto will amount to per se defamation. The Madras High Court answered the said question in the negative. Briefly the facts of the case before the Madras High Court were that the appellant filed a private complaint against the respondents alleging that though the appellant was the son of the first respondent by his second wife, respondents 2 and 3 who are sons-in-law of the first respondent, with the connivance of the first respondent, had got printed and published an advertisement in the Tamil daily newspaper known as ‘Malai Murasu’ wherein the first respondent had repudiated the paternity of the appellant and his brothers and stated that they were children of one V. Muthurasu Chettiar and that they were all pretenders. The case of the appellant was that by publishing such an advertisement the respondent had defamed him and his brothers. The publication was alleged to have been made just on eve of the celebration of the marriage of the brother of the appellant. The occasion far making such a publication was that an invitation was printed in respect of the marriage of the brother of the appellant under the name of the first respondent as the father of the said brother. On seeing the said invitation the publication alleged to be defamatory was issued. The High Court after noticing that the provocation for the respondents coming forward disputing the paternity was the issue of the invitation card. It held that assuming the dispute about the paternity of the appellant having been raised by the respondent to be false, yet it was quite natural in a dispute like that, nature for the opposite party to come with defence of the said nature. It also observed that the respondent was invited to make such statement by printing of the invitation card under the name of the first respondent and that under those circumstances it could not be said that the publication were with intention to defame the appellant. In the present case it is clear that, the denial attributed to the petitioner about relationship of complainant and accused No. 1 was to protect the order of eviction. As noticed earlier, only vague and general denial has been attributed to the petitioner.

16. In Bhagat Singh Sethi & Ors. v. Zinda Lal AIR 1966 J&K 106 (6), on review of case law, while holding that if defamatory statement is made in pleadings absolute privilege is not applicable to cases under the Penal Code in India but qualified privilege applies the learned Judge expressed the opinion that if in a pleading of a party certain matters are alleged which may not strictly be correct but are made in good faith and are made to protect the interest of the maker they are privileged and the person making them cannot be prosecuted or convicted for defamation. In that case the defamatory statements were alleged to have been made in application seeking an order of attachment before judgment and issue of temporary injunction. The court held that the allegations were made in good faith to protect the interest of the maker in the suit. It was also noticed that no express malice has been pleaded or alleged in the complaint or in the statement of the witnesses before the trial Magistrate. In the present case, like the case before the J&K Court, no express malice has been pleaded or alleged in the complaint or the statement of the complainant before the trial Magistrate. The criminal proceedings in Bhagat Singh Sethi's case were quashed.

17. In Secretary, N.C.E.R.T & Ors. v. Dr. P. D. Bhatnagar etc. 1981 Crl. Law Journal NOC 57 (7) the criminal proceedings were quashed by the High Court in exercise of power under section 482 of the code on coming to the conclusion that the material complained of as defamatory was not capable of being understood in defamatory sense. The Rajasthan High Court held that in every case the court is required to decide whether or not the alleged words are reasonably capable of bearing defamatory meaning in the particular circumstances in which they have been published. It also held that no defamatory intention knowledge or belief was attributable to the accused from the communication alleged as defamatory. In the present case, the context or in what manner exactly the relationship was denied is not clear either from the complaint or from the statement of the witnesses. The only imputation attributed to the petitioner is that he denied relationship of complainant with accused No. 1. Under these circumstances the only conclusion can be that the imputation complained of has no defamatory potential.

18. In Chaitan Charan Das v. Raghunath Singh, AIR 1959 Orissa 141 (8) a Division Bench of the Orissa High Court held that where some passages in a petition are alleged to be defamatory, the document should be read as a whole, with a view to find out the main purport, and too much importance should not be attached to a few isolated passage here and there. The imputations in Para 14 of the complaint that the petitioner made written submissions in court denying relationship of complainant and accused No. 1 are vague and general and without anything more it is not possible to conclude that it would constitute defamation.

19. In view of aforesaid discussion, it is clear that offence of defamation is not made out against the petitioner taking the allegations in the complaint as correct on its face value. Consequently this court in exercise of its inherent powers has to quash the complaint against the petitioner so as to prevent abuse of the process of the court.

20. Now as against accused Nos. 2 to 5 namely, respondents 3 to 6 herein, specific allegations in detail have been attributed in Paras 5, 8 and 13 of the complaint. Reference has been made in the complaint to various proceedings in which the said respondents made the alleged defamatory statements, that the complainant is not the wife of D.N Vaswani. For he present purposes, the said allegations have to be taken as correct on their face value. It is not for this court to go into the correctness or otherwise of those imputations attributed to respondents 3 to 6. Mr. Sood, learned counsel for the said respondents made, reference to other documents which came into existence after filing of the complaint, with a view to show that the allegations made in the complaint are not correct. The said documents are orders of different courts. Those documents cannot be looked into at this stage and may provide a good defence to the accused. It is not for this court, in these proceedings, to comment on the defence of the said respondents or to comment upon the effect of those documents or the observations made in various orders on the question of relationship of complainant with D.N Vasawani. The facts which come into existence subsequently to prove the truth or otherwise of the allegations is not a ground on the basis of which the complaint can be quashed. In J.P Sharma v. Vinod Kumar Jain & Others 1986 (3) SCC 67 (9) the Supreme Court while examining the scope of jurisdiction of the High Court under section 482 of the code held that the question at the stage of consideration of petition for quashing is not whether there was any truth in the allegations made but it is whether on the basis of the allegations, a cognizable offence or offences had been alleged to have been committed. It also held that the facts subsequently found out to prove the truth or otherwise of the allegations is a ground on the basis of which the complaint can be quashed. The order of quashing made by this court was set aside by the Supreme Court holding that taking all the allegations in the complaint to be true, without adding or subtracting anything, at that stage it could not be said that no prima facie case, for trial had been made out. It was further held that the High Court exceeded the limit of the power to be exercised by it under section 482 of the Cr. P.C It is, thus, not open to this court at this stage to take into consideration the subsequent documents on which reliance is placed by respondents 3 to 6 as it has the effect of going into the correctness or otherwise of the allegations made in the complaint.

21. Reliance is also placed by Mr. Sood on decision of the Supreme Court in State of West Bengal & Ors. v. Swapan Kumar Guha, AIR 1982 SC 949 (10), in support of the contention that if on consideration of the relevant materials the court is satisfied that no offence is disclosed it will be the duty of the court to interfere with any investigation and to stop the same to prevent any kind of uncalled for and unnecessary harassment to an individual. There cannot be any dispute about this proposition. It may, however, be noticed that in Swapan Kumar's case the proceedings were quashed on the Supreme Court coming to the conclusion that FIR and other material did not disclose any offence and as such no investigation could be permitted or allowed to be continued. The said decision has no applicability to the facts and circumstances of the present case. It is not possible to hold that taking the allegations made in the complaint at their face value, without adding or subtracting anything, no case is made out against respondents 3 to 6.

22. Mr. Sood next contends that it is not necessary for the accused to prove truthfulness of imputations and yet the benefit of good faith is available to the accused as provided in Exception No. 9 to section 499 ipc. There is no dispute about this proposition. There is also no dispute about the proposition that the nature of proof required from the accused is not absolute or of beyond reasonable doubt but is of preponderance of probabilities. However, these aspects are not relevant at this stage. These are matters of defence for the respondents 3 to 6. The allegation in the complaint per se do not make out a case falling under Exception No. 9 to section 499 ipc.

23. There is yet another aspect of the case. In so far as respondents 3 to 6 are concerned, their earlier petition for quashing was dismissed on 25th October, 1985 (Cr. Misc. (M) 257/84. After decision dated 25th October, 1985 there has been no such development in the case which should impel this court to take a view different than taken earlier, though as held hereinbefore, a subsequent petition is not barred. It is not necessary to consider the question whether the respondents can ask for quashing of the proceedings particularly when a substantive petition filed by same respondents has been dismissed earlier.

24. In the result the petition is allowed and the complaint and criminal proceedings arising therefrom against the petitioner are quashed. The prayer of respondents 3 to 6 for quashing the proceedings is, however, declined. The petition is disposed of in the above terms. Record shall be sent back to trial court immediately.

Ordered accordingly.