The Judgment of the Court was delivered by
Mahesh Chandra Sharma, J.:— This petition has been filed U/s. 482 Cr. P.C against the order dated 24th January, 2012 passed by Additional Sessions Judge No. 4, Kota, by which he has ordered to issue the notice to the petitioner and others.
2. Brief facts of the case are that respondent No. 2 - complainant filed a complaint before the court of Additional Chief Judicial Magistrate, First Class No. 5, Kota against the petitioner and two others by introducing himself as the member and active worker of Pantjali Yogpeeth of Baba Ramdev and Rashtriya Swayam Sewak Sangh (RSS) against Digvijay Singh, General Secretary, Indian National Congress Party, Smt. Sonia Gandhi, President, Indian National Congress Party and Rahul Gandhi. In the complaint, it was mentioned that on 5th June, 2011 in T.V news, derogatory and defamatory language was used by petitioner and subsequently also by the leaders of Indian National Congress Party. The petitioner, Sonia Gandhi and Rahul Randhi in the various meetings news items, articles and speeches made such statement, due to which so many persons started to give him comments and by virtue of such facts, the act of the petitioner and others is an offence, as defined in Section 153-A IPC and Section 499 IPC and such statement are defamatory and derogatory for RSS as well as for Baba Ramdev. Upon that, complainant made request to the Magistrate concerned to take cognizance against the petitioner and others. The learned Magistrate, after considering the provisions of Section 199(1) Cr. P.C rejected the complaint vide order dated 2nd July, 2011 observing that the complainant is not having the right to file such a complaint and is having no locus standi.
3. Being aggrieved, the complainant/respondent No. 2 filed a revision petition, which was transferred to the Court of Additional Sessions Judge No. 4, Kota. The learned revisional court issued the notice to the petitioner Mr. Digvijay Singh as well as Smt. Sonia Gandhi and Rahul Gandhi vide order dated 24.1.2012 Against the said order, this misc. petition has been filed.
4. Learned counsel for the petitioner took me through the provisions of Section 199 Cr. P.C, which reads as under:
“199. Prosecution for defamation:—(1) No court shall take cognizance of all offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by, the offence:
Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the court, make a complaint on his or her behalf.
(2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 of 1860) is alleged to have been committed against a person who, at the time of such commission, is the President of India, the Vice-President of India, the Government of a State, the Administrator of a Union territory or a Minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions a court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor.
(3) Every complaint referred to in sub-section (2) shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him.
(4) No complaint under sub-section (2) shall be made by the Public Prosecutor except with the previous sanction.
(a) Of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government;
(b) Of the State Government, in the case of any other public servant employed in connection with the affairs of the State;
(c) Of the Central Government, in any other case.
(5) No Court of Session shall take cognizance of an offence under sub-section (2) unless the complaint is made within six months from the date on which the offence is alleged to have been committed.
(6) Nothing in this section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such complaint.”
5. Learned counsel for the petitioner has contended that Magistrate rightly rejected the complaint by its order dated 2nd July, 2011, but the learned Additional Sessions Judge No. 4, Kota issued the notice against the petitioner Digvijay Singh as well as Sonia Gandhi and Rahul Gandhi, contrary to the provisions of law. He has further contended that Additional Sessions Judge No. 4, Kota has committed error by issuing the notice to the petitioner and others. He has further contended that the learned revisional court could have dismissed the revision petition only in view of the provisions of Section 199(1) of Cr. P.C, as indicated here-in-above. He has drawn the attention of this Court towards the judgment rendered by Hon'ble Apex Court in the case of S. Khushboo v. Kanniammal — Criminal Appeal No. 913/2010; decided on 28th April, 2010, wherein the Hon'ble Apex Court has laid down the law in para 24, as under:
“24. With regard to the complaints in question, there is neither any intent on part of the appellant to cause harm to the reputation of the complainants nor can we discern any actual harm done to their reputation. In short, both the elements i.e mens rea and actus reus are missing. As mentioned earlier, the appellant's statement published in ‘India Today’ (in September 2005) is a rather general endorsements of premarital sex and her remarks are not directed at any individual or even at a ‘company or an association or collection of persons’. It is difficult to fathom how the appellant's views can be construed as an attack on the reputation of anyone in particular. Even if we refer to the remarks published in ‘Dhina Thanthi’ (dated 24.9.2005) which have been categorically denied by the appellant, there is no direct attack on the reputation of anyone in particular. Instead, the purported remarks are in the nature of rhetorical questions wherein it was asked if people in Tamil Nadu were not aware of the incidence of sex. Even if we consider these remarks in their entirety, nowhere has it been suggested that all women in Tamil Nadu have engaged in premarital sex. That imputation can only be found in the complaints that were filed by the various respondents. It is a clear case of the complainants reading in too much into the appellant's remarks.”
6. Further, learned counsel has drawn the attention of this Court towards the judgment delivered by this Court in the case of Charmesh Sharma v. State of Rajasthan rendered in S.B Criminal Misc. Petition No. 1674/2011; decided on 19th March, 2012 = 2012 (3) RLW 2788, wherein this Court observed as under:
“12. It may be reiterated here that in respect of the offence of defamation, Section 199 Cr. P.C mandates that the Magistrate can take cognizance of the offence only upon receiving a complaint by a person who is aggrieved. This limitation on the power to take cognizance of defamation serves the rational purpose of discouraging the filing of frivolous complaints which would otherwise clog the Magistrate's Courts. There is of course some room for complaints to be brought by persons other than those who are aggrieved, for instance when the aggrieved person has passed away or is otherwise unable to initiate legal proceedings. However, in the given facts of the present case, I am unable to see how the complainant can be properly described as “persons aggrieved” within the meaning of Section 199(1) Cr. P.C.
In M.S Jayaraj v. Commr. of Excise (2000) 7 SCC 552 the Apex Court observed as under:
“The ‘person aggrieved’ means a person who is wrongfully deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. ‘Person aggrieved’ means a person who is injured or one who is adversely affected in a legal sense.”
“17. The case laws cited by the counsel for the petitioner are not applicable to the facts of the case. The Apex Court has categorically held in number of cases that the person filing complaint must be a person aggrieved. The complainant is not an aggrieved person, hence the complaint filed by him was rightly rejected for want of jurisdiction and the other factum of the case is that he is not an aggrieved person. In these circumstances the other rulings cited by the counsel for the non-petitioner No. 2 are not necessary to be looked into in view of the clear position of the provisions of Section 199 Cr. P.C and section 499 IPC related to definition of defamation.”
7. Learned counsel for the petitioner has wants that the revision petition filed by the complainant — respondent No. 2 against the order of the Magistrate concerned, issuing notice to the petitioner and others, should be quashed and set-aside.
8. I have heard learned counsel for the petitioner, learned PP appearing for the State and perused the relevant material on record including the impugned order.
9. The facts or the question of law raised by the petitioner seems to be genuine, but at this stage, when the learned revisional court has issued the notice to the petitioner, I do not think it proper to quash and set-aside the order issuing notice. Hence I direct the revisional court to decide the questions, which have been raised by the petitioner by way of the instant petition, in the light of the aforesaid judgments and provisions of law, first.
10. This criminal misc. petition stands disposed of accordingly.
11. Consequent upon the disposal of criminal misc. petition, the stay application, filed herewith, does not survive and the same also stands disposed of.
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