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2009 Supreme(Bom) 1627
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE D.G. KARNIK
Balkrishna Narayant Gurav & Others Appellant
Versus
State of Maharshtra & Another Respondent
CRIMINAL WRIT PETITION NO. 386 OF 2009
Decided on: 01-12-2009
For the Petitioners:S.V. Marwadi i/b Vaibhav & Associates, Advocates.
For the Respondents:R2, A.P. Bagwe, Advocate, S.N. Gawade, A.P.P.
Headnote:INDIAN PENAL CODE, 1860 - Section 499 - Defamation - News published alleging several alleged misconduct - Pamphlets also distributed alleging defamation - Petitioner’s submission whatever published was true to his knowledge - Suggested that case falls under eighth exception of Section 499 of Code - Respondent also filed civil suit for damages - Held, under Section 105 of Evidence Act burden to be discharged at trial - Complaint cannot be quashed at initial stage. - Whatever has been stated about the respondent No. 2 and his conduct is true and "truth" is his defence. He further submitted that the case of the petitioners fall within the eighth exception to Section 499 of the IPC. Eighth exception says that it is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation. Publication of a news item in a newspaper and distribution of the pamphlets, if proved, would not prima facie amount to making of an accusation to the persons who have lawful authority over the respondent No. 2. In any event, under Section 105 of the Evidence Act, the burden of proving that the petitioners fall under the eighth exception to Section 499 of IPC or any other exception as provided under the IPC, lies on the petitioners. That burden would be required to be discharged by them at the trial and the complaint cannot be quashed at the stage of institution itself.
ORAL ORDER:
1. By this writ petition, the petitioner prays for quashing of the complaint (criminal summary case no. 199 of 2007) pending in the Court of Judicial Magistrate, First Class, Lanja.
2. The respondent no.2 claims to be a social worker and a former sarpanch of a village panchayat. A news item appeared in the newspaper "Konkan Garjana" on 28th January 2005 making several imputations about the alleged misconduct of the respondent no.2. The respondent no.2 has alleged that pamphlets were published and distributed by the petitioners in the village containing similar defamatory allegations against him. According to him, the contents of the news item and the pamphlets are per se defamatory. He therefore filed a criminal complaint against the petitioners.
3. Learned counsel for the petitioners submitted that whatever has been stated about the respondent no.2 and his conduct is true and “truth” is his defence. He further submitted that the case of the petitioners fall within the eighth exception to section 499 of the I.P.C. Eighth exception says that it is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation. Publication of a news item in a newspaper and distribution of the pamphlets, if proved, would not prima facie amount to making of an accusation to the persons who have lawful authority over the respondent no.2. In any event, under section 105 of the Evidence Act, the burden of proving that the petitioners fall under the eighth exception to section 499 of I.P.C. or any other exception as provided under the I.P.C., lies on the petitioners. That burden would be required to be discharged by them at the trial and the complaint cannot be quashed at the stage of institution itself.
4. Learned counsel for the petitioners then submitted that the respondent no.2 has also filed a civil suit for damages against the petitioners. In my view, that cannot be a ground for quashing the complaint. Defamation being both a civil wrong and a criminal offence, both the proceedings can be initiated simultaneously.
5. For these reasons, there is no merit in the writ petition which is hereby dismissed summarily.
