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IN THE HIGH COURT OF BOMBAY
Shafi Parkar, J.
Shri Vijay Vishwanath Kuvalekar..... Petitioner.
Versus
Shri Suresh Raghunathrao Kalkundrikar another ..... Respondents.
Criminal Application No. 2500 of 1992, decided on 10/14-9-1999.
Advocates appeared :
V.G. Peshave, for petitioner.
Ashish Agarwal i/b Mrs. Anita Agarwal, for respondent No. 1.
M.P. Galeria, A.P.P., for respondent No. 2-State.
-Sections 499 and 500 and Criminal Procedure Code (2 of 1974), Section 199(1)-Offence of defamation-Person aggrieved should be either the person defamed or any person covered by any of the explanations to Section 499.-Under Section 199 (J), the cognizance of the offence punishable under Chapter XXI of Indian Penal Code, which pertains to defamation, cannot be taken except upon a complaint made by some person aggrieved by the offence. This section carves out an exception to the general rule of the criminal jurisprudence that any person can put law into motion as laid down in Section 190 of the Criminal Procedure Code. The restriction for taking cognizance with regard to the offence of defamation does not limit the right to file the complaint to the person against whom the offence is committed but the complaint can be filed by some person aggrieved by the offence and thus aggrieved person can be other than the one against whom the offence was committed. In order to understand the words, "by some person aggrieved", the proviso to sub-section (1) of Section 199 would be helpful. The said proviso gives an indication that some person aggrieved referred to in subsection (1) of Section 199 would be the person against whom the offence was committed. The explanations 1 to 4 to Section 499 of Indian Penal Code would indicate that aggrieved person referred to in Section 199 (1) could be the members of the family of the deceased against whom the imputation was directed or other relatives and/or a person aggrieved by the imputation concerning a company or an association or collection of persons as come plated under Explanation 2 to Section 499. Thus, the persons aggrieved should be either the person defamed or any person covered by any of the explanations to Section 499.
After reading the news item it did not appear that any allegation was made against the respondent No. 1 complainant nor it was his case in the complaint that the imputation directly or indirectly lowered the moral or intellectual character of the complainant or lowered complainants character in respect of his caste or of his calling or lowered his credit as contemplated in Explanation 4 to Section 499, Indian Penal Code. The complaint was filed by the respondent No. 1 on behalf of his father during his life time and, therefore, explanation 1 was not attracted. The complaint stated that by the said news item the sole trustee was defamed and his image had been distorted and the complainant was also defamed and therefore, he was entitled to file the said complaint. It was not stated in the complaint as to how the complainant can be said to have been defamed by the news item in which the allegations were made against his father in his capacity as the sole trustee of the Dutta Temple Trust. The complaint in the present case did not show how the complainant can be said to have been defamed because of the news item published by the petitioner in the newspaper Daily Sakal quoting the allegations made by the citizens before the Charity Commissioner against the father of the complainant with regard to the financial affairs of the trust of which the complainants father was the sole trustee. The complainant would not be said to be an aggrieved person entitled to file complaint and, therefore, the cognizance taken by the trial Court and the process issued on his complaint quashed. 1980 Cri LT 1036 and 1980 Cri LJ NOC 160 (Raj)-Referred.
2.This application is filed for quashing the process issued by JMFC, A/C Court, Pune in Criminal Case No. 1867 of 1989 in the complaint filed by the respondent No. 1 for offence under section 500 of I.P.C. in respect of the news item published in "Daily Sakal" a newspaper in Marathi, on 21st May 1989, under the inherent powers of this Court under section 482 of Cr.P.C. and under Article 227 of the Constitution of India.
3.The brief facts giving the backdrop of the present petition can be stated as follows:
At Village Ashti, there is a temple called Dutta Temple. It is registered as a Trust with the Charity Commissioner, Aurangabad. The father of the complainant-respondent No. 1 was the sole trustee of the said temple. The villagers of Ashti had given a written complaint/application to the Charity Commissioner, Aurangabad making several allegations against the said Trustee. A copy of the said complaint/application is annexed at Exhibit "D" to the petition. The allegations made against the said Trustee in that application were reported in Marathi newspaper "Daily Sakal" dated 21st May, 1989. The petitioner is the Editor of that newspaper who was arraigned as accused No. 1 in the complaint. Thereafter the said Trustee issued his advocate's notice dated 24-7-89 to the petitioner in respect of the said news item which was replied to by the petitioner by his reply dated 4-8-89, a copy whereof is annexed as Exhibit "E" to the petition. In the said reply, the petitioner has denied the allegations made in the notice and denied that the said news item was published intentionally in order to lower or harm the reputation of the Trustee or that it contained false allegations. Thereafter a private complaint came to be filed in the Magistrate's Court on 9-11-89, being Criminal Case No. 1867 of 1989, by the respondent No. 1 who is the son of the said Trustee. After the complaint was filed, the learned Magistrate issued the process on 27-11-1989. The order issuing process was challenged by the petitioner in the Sessions Court, Pune by filing Criminal Revision Application No. 175/90. The learned II Additional Sessions Judge, Pune, who heard the criminal revision application, dismissed the same by his judgment and order dated 7-5-92 upholding the order issuing process on the ground that the allegations were prima facie defamatory and that the complainant being the son and the disciple of his father Raghunathrao Kalkundrikar i.e. the sole trustee was an aggrieved person and, therefore, competent to sue the petitioner for defamation.
4.By the present petition the order issuing process as well as the order of the Sessions Court dated 7-5-1992 passed in Criminal Revision Application No. 175/90 are impugned. It may be mentioned here that the original complaint was filed against two accused persons: Petitioner as accused No. 1 and one Smt. S. Parulekar as accused No. 2 who were the editor and the publisher respectively of the Daily Sakal. The Revision Application before the Sessions Court was filed by both the accused. However, present petition is filed only by accused No. 1 as the original accused No. 2 had died in the meantime.
5.Mr. Peshave, the learned advocate appearing for the petitioner, contended that the process was wrongly issued and the complaint is not maintainable on the ground that the respondent No. 1-complainant is not an aggrieved party. Secondly, he contended that no allegations have been made by the petitioner in the newspaper against the Trustee but what was published in the said newspaper was only the contents of the application filed be
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