1. This criminal revision is directed against an order passed by the learned Court below refusing to discharge the petitioner in connection with a proceeding relating to the offence punishable under section 500 of the Indian Penal Code and for quashing of the said proceeding.
The supplementary affidavit filed in Court on behalf of the petitioner containing the petition of complaint be kept with the record.
It is well-settled that a criminal complaint can be quashed only when it is found the allegations made in such complaint together with those appearing from the initial deposition of the witnesses do not disclose commission of any offence. At this stage the truth or falsehood of the allegations cannot be gone into nor any defence material can be taken into consideration.
2. Heard Mr. Debasish Roy, learned Advocate appearing on behalf of the petitioner and Mr. Md. Galib appearing on behalf of the opposite party No. 2, the complainant. Perused the petition of complaint filed with the supplementary affidavit, the initial deposition of the witnesses filed with the main criminal revisional application and other materials on record.
3. In response to the summon the petitioner appeared in Court and subsequently filed an application for discharge on the following grounds that,—
(a) There is no mens rea.
(b) A Title Suit is pending before the parties.
Page: 271(c) A complaint has been made on false allegation.
(d) A person after being discharged for a proceeding under section 107 Cr. PC. cannot be said to have been defamed by the complainant.
However, the learned Court below dismissed such application for discharge.
4. Mr. Debasish Roy, the learned Advocate appearing on behalf of the petitioner submitted before this Court that on the face of the allegations made in the petition of complaint and what is appearing from the initial deposition of the complainant and his witnesses no case can said to have been made out. According to him no person cannot be said to have been defamed on the allegations in his own estimation he has been lowered down. Mr. Roy in this connection relied on the decision of the Hon'ble Supreme Court in the case of Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi, reported in 1997 Cr. LJ 212.
On the other hand, Mr. Md. Galib, the learned Advocate appearing on behalf of the opposite party No. 2 vehemently contended that on the face of the allegations contained in the petition of complaint as well as in the initial deposition of the witnesses a clear case of commission of the alleged offence has been made out against the present petitioner. He further submitted that the allegations made in paragraphs 3, 4 and 7 of the petition of complaint clearly makes out a case as against the present petitioner. According to him that unless case falls within the exception enumerated in section 499 of the Indian Penal Code no complaint relating to the offence of defamation can be quashed. He further submitted the mens rea is a question of facts and the existence of the same cannot be decided before recording of evidence. In this connection Mr. Galib relied on following decisions reported in 2009 (1) SCC (Cri) 245, 2001 Calcutta Criminal Law Reporter (Cal) 106 and 2002 (1) CLJ 530.
In spite of service of notice none appears on behalf of the State.
5. Having gone through the impugned order whereby the learned Magistrate rejected the petitioner's prayer for discharge I do not find the same suffers from any illegality or infirmity. Inasmuch as no Court before commencement of the trial can discharge an accused on the grounds that the allegations are false and on a finding of facts that there was no mens rea.
6. However, in this criminal revision the petitioner has not only challenged the order of the learned Magistrate, whereby his prayer for discharge has been rejected but he has also approached this Court for quashing of the complaint contending that on the face of the allegations no case for the alleged offence has been made out. In a case of this nature, where the offence is one of defamation to make out such offence unless the imputations are per se defamatory, it is essential to prima facie show that by such imputations the reputation of the complainant has been lowered down in the estimation of the public.
7. In the petition of complaint it has been alleged that the accused with a view to canvass the complainant is a subversive element of the society made oral imputation that he is a dangerous and desperate man and can commit various offence like murder, consequently the close friends and relatives of the complainant started avoiding him. It has been further alleged that in connection with a proceeding under section 107 of the Code it was alleged by the accused that the complainant is a desperate and dangerous person to Page: 272public peace and tranquility. Thereafter, the accused made false accusation against the complainant and his mother which figured the complainant a loathsome person in the estimation of the society and consequently complainant is suffering from ex-communication and interdict and his reputation and social status has been damaged. The imputation that the complainant is a dangerous and desperate person and can commit Crime including murder and he is desperate and dangerous to public peace and tranquility is not per se defamatory. Therefore, there must be some prima facie evidence that in the estimation of the general public by such imputation the reputation of the complainant has been harmed arid lowered down. In the case at hand, the complainant in support of his allegations examined two persons, viz., one Adhir Kumar Biswas his neighbour arid his son-in-law Kabindra Dutta Gupta under section 200 of the Code of Criminal Procedure. According to the witness Adhir Kumar Biswas after the accused Dipankar Bagchi lodged a case under section 107 of the Code of Criminal Procedure against the complainant the local people started disliking the complainant although he is a good gentleman. The accused Dipankar Bagchi intentionally harassed the family of the complainant. While according to the witness Kabindra Dutta Gupta the accused spread rumor about the complainant in the locality that he is a man of loose character and drunkard. Consequently, para people started avoiding him and his family and the witnesses being his son-in-law, his prestige has been lowered down. None of the said witnesses neither alleged nor it is their evidence due to such imputation the moral and intellectual character of the complainant has been lowered down in their estimation and thereby his reputation has been harmed. The inference of the said witnesses that due to such imputation the reputation of the complainant has been lowered down in the estimation of the public is of no use to make out an offence of defamation. No witnesses have been examined in whose estimation the reputation of the complainant has been lowered down due to such imputation made by the accused.
8. Thus, in the instant case, the allegations made in the petition of complaint that due to the imputation made by the accused his reputation has been harmed and lowered down in the estimation of the others received no support from the evidence of the witnesses, the complainant examined under section 200 of the Code. Accordingly, it must be held that no case for commission of an offence of defamation has been made out against the present petitioner.
In the result, the instant criminal revision succeeds and the impugned complaint stands quashed.
Criminal Section is directed to deliver urgent photostat certified copy of this judgement to the parties, if applied for, as early as possible.
Ashim Kumar Roy, J.:
Appeal succeeded.
P.G