Jyoti Bansilal Kamble vs The State of Maharashtra and Others

A.R. Joshi, J—Heard learned senior counsel for the applicant-original accused. Also heard learned A.P.P. for the State-non-applicant No. 1. None present for non-applicant No. 2, though matter was adjourned on various occasions.

What is challenged in the present matter is the order of issuance of process for the offence punishable under Section 500 of Indian Penal Code passed by the Additional Chief Judicial Magistrate on 09/07/2003. Said order was taken before the Sessions Court, Nagpur in Criminal Revision No. 324 of 2004. However, said revision was dismissed by Additional Sessions Judge, Nagpur vide order dated 23/02/2009 and both the parties are directed to appear before the trial Court on particular date. This order is also challenged in the present application preferred under the provisions of Section 482 of Criminal Procedure Code.

The facts of the present matter leading to the lodging of the complaint for the offence punishable under Section 500 of Indian Penal Code against the present applicant are very peculiar in nature. The present non-applicant No. 2 was senior bank officer and the officer in higher rank than that of the present applicant, who was then the lady officer working under him. During the bank working, allegedly there were sexual advances by present non-applicant No. 2 towards the present applicant, his junior employee. Being aggrieved by such conduct and apparent eve-teasing, the present applicant took the matter to higher officials of the bank and also lodged a Police case for taking action against the present non-applicant No. 2. In fact, the case was registered and the matter was proceeded before the concerned Judicial Magistrate First Class. During the pendency of the matter, a writ petition was preferred by the present applicant before this High Court for a specific direction to the higher bank officials to take departmental action against the present non-applicant No. 2. Without much going into the details of such various steps taken by the present applicant, suffice it to say that the departmental proceeding was ultimately initiated against the present non-applicant No. 2 and in fact, punishment of removal from service was inflicted on him. In the meantime, the criminal case on the complaint of the present applicant proceeded further before the J.M.F.C. Court, but ended in acquittal of present non-applicant No. 2 for the offences punishable under Sections 294 and 509 of I.P.C. As such, according to the present non-applicant No. 2, the acquittal in that matter is the cause for him to initiate proceeding against present applicant and other four employees of the bank for the offence punishable under Section 500 of Indian Penal Code. This criminal complaint was entertained by the Additional Chief Judicial Magistrate, Nagpur and initially order under Section 202 of Criminal Procedure Code was passed and after obtained the Police Report, the process was issued only against the then accused No. 1-present applicant and no process was issued against the other accused Nos. 2 to 5 therein. This was the only cause for the present applicant to take the matter before the revisional Court and after the revision was dismissed, the matter has reached this Court.

Learned counsel for the applicant brought to the notice of this Court that the judgment and order of J.M.F.C. Court, which was the basis for lodging of the complaint of defamation by present non-applicant No. 2, has not attained finality, inasmuch as the State Government had preferred appeal bearing No. 245 of 2003 against the judgment and order and that appeal is reportedly pending before this Court. It is also brought to the notice of this Court that Criminal Revision No. 68 of 2003 was also preferred by the present applicant challenging the judgment and order of the Criminal Court acquitting the present non-applicant No. 2. The said revision is withdrawn by the applicant in view of filing of appeal by the State for same reliefs. It is also argued that the factual position of pendency of the appeal was suppressed from the Additional Chief Judicial Magistrate, Nagpur when the order of issuance of process was passed against the present applicant. This aspect was also brought to the notice of the Sessions Judge during the pendency of the Revision Application No. 324 of 2004, but it was not taken care of in proper perspective and this plea was rejected. However, the facts remain as under:-

(1) The prosecution launched by the present non-applicant No. 2 against the applicant and other four bank employees is on the basis of acquittal in the criminal case lodged by the present applicant for the offences punishable under Sections 294 and 509 of I.P.C.

(2) An appeal challenging the judgment and order of acquittal in the matter is still pending before this Court and as such, it is yet to be ascertained whether or not the present applicant had mala fide taken action against non-applicant No. 2 while filing the complaint against him with the Police.

Apart from the above, it is also brought to the notice of this Court that along with filing of a complaint for taking action under Section 500 of I.P.C. against the present applicant, present non-applicant No. 2 had also preferred Special Civil Suit No. 859 of 2003 against the present applicant and two other persons. It was so filed before the Civil Judge, Senior Division, Nagpur. The said suit was dismissed with costs vide order dated 17/08/2011. But in fact, this is the subsequent occurrence and this factual position was not available when the impugned process order was issued by Additional Chief Judicial Magistrate in July, 2003. But now the fact remains at this stage that the suit for compensation on account of defamation has already been dismissed by the competent Court and also apparently the dismissal of the said civil suit is challenged by the non-applicant No. 2 in appeal before this Court and the said appeal is also pending.

Considering all the above circumstances and the factual position, in the opinion of this Court, it is definitely a premature action for initiating the proceedings against the present applicant for the offence punishable under Section 500 of I.P.C. mainly for the reason that the main basis for initiating said process for defamation, is yet to be conclusively put to an end with the finding of the competent Court that the initial complaint under Section 294 read with Section 509 I.P.C. filed by the present applicant was with mala fide intention and without any substance. As on today this impression cannot be gathered considering the above factual position. As such, it must be said that both the earlier Courts have committed an error and had not appreciated the factual position and the legal mandate for taking action under Section 500 of I.P.C. against the accused.

Apart from the above, during the arguments, learned senior counsel for the applicant placed reliance on the ratio propounded by the authority reported in Rajendra Kumar Sitaram Pande and Etc. Vs. Uttam and Another, AIR 1999 SC 1028 : (1999) CriLJ 1620 : (1999) 1 Crimes 88 : (1999) 1 JT 426 : (1999) 1 SCALE 402 : (1999) 3 SCC 134 : (1999) 1 SCR 580 : (1999) 1 UJ 595 : (1999) AIRSCW 660 : (1999) 2 Supreme 63 and canvassed the proposition that if the allegations which have given rise to subsequent lodging of the complaint under Section 500 of I.P.C., are apparently covered under Exception 8 to 499 of I.P.C., then there cannot be an action for defamation and in such cases even at the issuance of process stage such aspect as to application of exception 8 to Section 499 of I.P.C. can be looked into. In the considered opinion of this Court, considering the ratio in the above cited authority, it must be said that the present application is required to be allowed in order to set right the error committed by both the earlier Courts, mainly considering the pendency of appeal filed by the State challenging the acquittal of the non-applicant No. 2 in criminal case.

As such the present application succeeds and is accordingly allowed. The impugned order of issuance of process dated 09/07/2003 is hereby quashed and set aside. Consequently, the order of the revisional Court dated 23/02/2009 is also quashed and set aside.

Rule is made absolute in the aforesaid terms.