Abdul Rauf Khan and 19 others vs Dr. Majid hussain

Gulab C. Gupta, J.

The applicants, by this application u/s 482 Cr.P.C, seek quashing of the proceedings started on a complaint of the Non-applicant before Shri M. R. Pandey, Additional Chief Judicial Magistrate, Bhopal for the alleged offence u/s 500 I.P.C. The applicants had made a similar effort before Shri C. C. Dwivedi, 3rd Additional Sessions Judge, Bhopal by filing a revision u/s 397 Cr.P.C, which was unfortunately dismissed.

It appears that Non-applicant-Dr. Majid Hussain was a member of Muslim Welfar: Society. The applicants are the members and officebearers of the said society. The said society in its meeting dated 31-5-1984, passed a resolution against the non-applicant removing him from the membership of the society on the ground that he did not fulfil the requirements of the bye-laws and also because of malafides and blackmailing tacties. It appears that the aforesaid removal gave rise rivarly between the parties. The non-applicant published articles in some Urdu newspaper against the aforesaid society. The society felt that the publication of article by the non-applicant in news paper were defamatory. One Rafiq Ahmad Khan Advocate, acting under instructions from the applicant Mohd. Raja Khan, Secretary, of the Society served a notice dated 22-6-1984 (Annexure-1), on the non-applicant and two others calling upon them to express regret and apology for the writing, printing and publishing the defamatory articles, failing which legal criminal action was to be started in the Court of law. Para-1 of this notice, which is the subject-matter of the present application, reads as under ;

That you the addressee No. 2 were the member of Muslim Welfare Society. Due to your malafides and blackmailing tactics and other disqualifications the society by its resolution dated 31-5-1984 has removed you from the original membership of the society. Consequently, you have adopted rival attitude and started to defame the society on false grounds.

It further appears that the non-applicant did not tender apology and, therefore, a criminal complaint was filed against him in the Court of Addl. Chief Judicial Magistrate, Bhopal on 28-7-1984, where it is pending. It appears that the non applicant felt that the aforesaid allegations contained in the notice of Shri Rafiq Ahmad Khan, Advocate, amounted to an offence punishable u/s 500 J.P.C. and, therefore, filed a criminal complaint against the applicants which is the subject-matter of Criminal trial No. 476/87 in the Court of the Chief Judicial Magistrate, Bhopal. The said complaint is based on notice dated 22-6-1984 and alleges that it makes the imputation that the non applicant was a blackmailer. Quoting aforesaid para-1 of the notice it is alleged that it amounts to defamation. Acting on the statement of the non-applicant and his two witnesses the learned Magistrate has registered the complaint and issued process against the applicants purporting to be in exercise of power u/s 204 Code of Criminal Procedure The applicants in the present application seek quashing of these proceedings.

It has already been noticed that the applicants had filed a revision u/s 397 Code of Criminal Procedure challenging the legality of the order issuing process on them. Section 397 (3) Code of Criminal Procedure prohibits any further application by way of revision by a person who has made an application either to the High Court or to the Sessions Judge. It is submitted that the legislature, in fact, intended to make the order in the revision final and therefore even the inherent powers of this Court u/s 482 Code of Criminal Procedure would not be available for this purpose. Reliance has been placed on Madhu Limaye Vs. The State of Maharashtra, ; Jagir Singh Vs. Ranbir Singh and Another, AIR 1980 SC 28. Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, and L.V. Jadhav Vs. Shankarrao Abasaheb Pawar and Others, . None of these cases, however, support the aforesaid submission. They, on the contrary, clarify that two jurisdiction operate in different spheres and have different parameters. Section 482 Code of Criminal Procedure confersa separate and independent power on the High Court alone to pass order ex debito justitice in cases where grave injustice has been done or where the process of the Court is seriously abused. The decision of Supreme Court in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, re-affirmed that an order of the Magistrate issuing process against the accused can be quashed or set aside in exercise of powers u/s 482 Cr P.C.:

(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) Where the allegations made in the complaint are patently absured and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) Where the discretion exercised by the the Magistrate in issuing process in capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) Where the complaint suffers from fundamental legal defects, such as, want of Sanction, or absence of a complaint by legally competent authority and the like (Para 8).

The Court also noted that the aforesaid are purely illustrative cases intended to provide guidelines. The ultimate conclusion of the Court is as under:-

It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashihg the proceedings in exercise of its powers u/s 482 of the present Code.

Since this decision takes into consideration all decisions relied upon by the learnedcounsel, it is not considered necessary to deal with them in any detail. It is therefore obvious that though the Court does not lack jurisdiction to entertain the application, it will not readily accept the applicants'' prayer and quqsh proceedings. The Court would always remember that these powers are not appellate and are intended to be sparingly used under compelling circumstances.

In view of the aforesaid, it may be examined if the Magistrate found "sufficient ground" to issue process against the applicant. Since the complaint is for offence punishable u/s 500 I.P.C., it must be ascertained whether the complaint discloses the necessary ingredients of the offence as defined u/s 499 I.P.C A bare reading of the aforesaid section brings out its three essential ingredients viz., (i) making or publishing any imputation concerning the non applicant (ii) such imputation must have been made by words, signs or visible representations, and (iii) such imputation must have been made with the intention of harming or with the knowledge or reason to believe that it will harm the reputation of the non-applicant. If these requirements are satisfied the person making or publishing the imputation would be liable to be punished u/s 500 I.P.C. The aforesaid is. however, subjected to ten exceptions, contained in Section 499 I. P. C. which must be kept in view while considering the matter. Under the circumstances, the first question to be considered is whether the applicants made alleged imputation ? The complaint, itself indicates that the offending remarks were made by Shri Rafiq Ahmad Khan Advocate. Though the complaint alleges that the Advocate wrote the offending remarks under instructions from the applicants, the notice of the Advocate, does not support it. The notice Annexure-1) is issued under the instructions of the Secretary Mohammad Raja Khan, though it purports to be on behalf of the Muslim Welfare Society. The complaint states that the applicants are members and officers of the said society. Simply because the applicants are members of the society, it cannot be assumed that they gave instructions to the Advocate to write the offending words. There is also no reason to doubt that the Advocate Shri Khan would have wrongly mentioned that the notice was being given at the instance of Secretary of the Society Shri Mohammad Raja Khan. The non applicant in his evidence does not allege anything more. Since this is the only material on record is nothing against the applicants except applicant Mohammad Raja Khan to connect them with the notice and, therefore, there would be no justification whatsoever for holding even prime-facie that these applications made the aforesaid imputation. Faced with this situation, the learned Counsel for the non-applicant relied on subsequent event contained in para 7 of the complaint, wherein it is alleged that the non-applicant required the applicants to tender apology which the applicants refused to tender and asserted that they believe that he was the blackmailer and, therefore, they got the offending remark written. If the intrinsic value of this statement makes it prima facie acceptable, it may be treated to be a circumstance connecting the applicants with the imputation. But neither the complaint nor the applicants statement clarify as to when the aforesaid admission was made. The complaint only says that after the demand of apology the situation became explosive and the applicants-accused persons shouted at the non-applicant to say that be was black-mailer and, therefore, they had got the notice written. This statement does not clarify whether the non-applicant met all applicants in any meeting where they were present or met them individually; time and place is also not mentioned. The intrinsic value of the statement is, therefore, very little. Section 204 Cr. P C. requires the Magistrate to find out sufficient grounds before issuing process. Mere ipse dixit of the applicant is neither sufficient reason nor ground within this provision. Apparently, therefore issue of process against the applicants except the applicant Mohammad Raja Khan was contrary to Section 204 Cr. P. C. Once a complaint has been filed nothing more than the facts stated in the complaint can be permitted to be proved by evidence. Since vague allegations against the applicants even if accepted, it would be an abuse of process of the Court to require them to face trial which is known to be long drawn and bitterly contested. This, according to this Court is the compelling reason for exercise of power u/s 482 Cr. P. C. In this view of the matter, proceedings in so far as applicants other than the applicant Mohammad Raja Khan are concerned, deserve to be quashed.

This Court should also inquire whether Mohammad Raja Khan made the imputation as alleged. Para 1 of the notice (Annexure 1), which is quoted in part in para 4 of the complaint when read as a whole, does not lead to the conclusion that it was applicant Mohammad Raja Khan who called the non-applicant a black mailer. Indeed, the word Black mailer'' is not used in this paragraph nor does this para contain the statement of the said applicant. This para in fact, refers to the resolution of the Society dated 31-5-1984 which has the effect of removing the non-applicant from original membership, because of his "mala fide and black mailing tactics and other disqualifications". The Secretary of the Society is not entitled to change the resolution. Under the circumstances, if use of the words "mala fide and blackmailing tactics" had the effect of defaming the non-applicant, he was defamed by the resolution dated 31-5-1984. The complaint docs not pertain to said resolution. The submission of the learned Counsel for the non-applicant is that passing the resolution itself, would not amount to defamation as it was not published till 22-61984 when this notice was given. Assuming that this submission is correct, the mootquestion requiring consideration would be whether the Secretary of the Society in honestly and faithfully quoting the said resolution commits offence u/s 499 I.P.C. ?Seventh exception to this provisions would entitle the general body of the society to pass the censor resolution against the applicant in accordance with its bye-laus and an imputation made in that connection would not amount to defamation. If the alleged imputation when made did not amount to dafamation, it is difficult to hold that its communication by the lawful authority would amount to defamation. Then it is also not possible to hold that the Secretary while recommunicating the said resolution to his Advocate intended to harm the non-applicant. Such a communication is privileged and does not amount to publication. The fact that the Advocate sent the impugned notice to two others would not be the circumstance against the Secretary. The Advocate was the best judge of the manner of serving notice. It cannot be seriouasly disputed that the Advocate could have issued separate and different notices to three different persons, if he had so wated. Advocate''s style of functioning is not controlled by the instructing agent of the client and, therefore, the person instructing cannot be held responsible for any wrong done by the Advocate of his Act. It is admitted, and in the opinion of this Court rightly, that if notice (Annexure I) had not been addressed to the proprietor, Pasha Printing Press requirement of publication of the same would not have been satisfied. This being the matter left to an expert, i.e. Advocate, the applicant Secretary would not prime facie be made responsible of the said publication. Since the burden of showing sufficient ground is on the non-applicant as is usually so on the prosecution in a criminal case, it was for the non-applicant to show that the publication of the resolution was also under instructions from the applicant Mohammad Raja Khan. Consideration of intrinsic value of the evidence, therefore, makes it difficult for this Court to discover sufficint ground in this case as required u/s 204 Code of Criminal Procedure In this view of the matter proceedings against the applicant No. 3-the Secretary also deserve to be quashed.

For the reasons aforesaid, the application succeeds and is allowed. Proceedings before Shri M.R. Pandey Additional Chief Judicial Magistrate, Bhopal in Criminal Case No. 476/87 are hereby quashed and the applicants discharged.