IMPORTANT POINT
Defamation – It is not a defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with regard to subject-matter of accusation.

ORDER :

1. The respondent No. 2 (original complainant) although served with the notice issued by this Court, yet has chosen not to remain present before this Court, either in-person or through an advocate, and oppose this appeal.

2. This is an appeal at the instance of the original accused summoned for the offence of defamation punishable under Section 500 of the Indian Penal Code (for short “the IPC”) and is directed against the order passed by the High Court of Judicature at Bombay, Nagpur Bench, dated 03.02.2010 in Criminal Writ Petition No. 676 of 2009, by which the High Court rejected the writ petition filed by the appellant-Kishore Balkrishna Nand and thereby declined to quash the order of issue of process by the Magistrate for the offence of defamation.

3. It appears from the materials on record that the appellant herein lodged a complaint in writing addressed to the Sub-Divisional Magistrate (for short “the SDM”) stating that the respondent no. 2 herein (original complainant) had put up a shop by encroaching upon some land. In the complaint. the appellant is said to have further stated that such shop put up by the complainant was creating nuisance, as many anti-social elements and road romeos had started visiting the said shop and were creating all sorts of problems.

4. The SDM upon receipt of the complaint dated 25.01.2002 filed by the appellant issued notice to the complainant. While the proceedings before the SDM were pending, the complainant thought fit to lodge a private complaint in the Court of the Judicial Magistrate, Worora, Chandrapur, State of Maharashtra for the offence of defamation. The learned Magistrate took cognizance on the said complaint and issued process. The cognizance for the offence of defamation was taken by the Magistrate on the basis of the averments said to have been made by the appellant in his written complaint addressed to the SDM, referred to above.

5. As the record reveals, the appellant thereafter moved an application before the Court of the Judicial Magistrate with a prayer that the order of issue of process be recalled. The Magistrate concerned recalled the order. The complainant being aggrieved by such order of recall passed by the Magistrate, challenged the same before the Sessions Court by filing a revision application. The revision application was allowed and the order recalling the order of issue of process was quashed. In such circumstances, the appellant went before the High Court. In the High Court, the appellant thought fit not to press his petition and withdrew the same.

6. Eight years thereafter the appellant thought fit to challenge the original order of issue of process before the High Court. The High Court without entering into the merits of the matter, declined to entertain such petition only on the ground of delay.

7. In such circumstances referred to above, the appellant is here before this Court with the present appeal.

8. Mr. Anshuman Ashok, the learned counsel appearing for the appellant vehemently submitted that the learned Magistrate committed a serious error in taking cognizance on a complaint, which fails to disclose commission of any offence. According to him even if the entire case, as put up by the complainant, is accepted or believed to be true, none of the ingredients to constitute the offence of defamation as defined under Section 499 of the IPC and made punishable under Section 500 of the IPC are disclosed. He pointed out that his client (appellant), in good faith, brought to the notice of the SDM that the complainant had encroached upon some portion of the land and had put up a shop which was creating nuisance. This, according to the learned counsel, would not constitute any offence of defamation. He submitted that even otherwise since the alleged defamatory words or statements are said to have been made in a complaint made in writing addressed to a public authority like SDM and not made public, the same would not attract the rigours of Section 499 of the IPC.