Judgment:
M.B. Ghodeswar, J.
1. The applicant Sukumar has filed this application under Section 482 of the Criminal Procedure Code read with Article 227of the Constitution of India praying for quashing the order issuing process andcriminal proceedings in Criminal Case No. 10 of 1990 and the order passed bythe Sessions Judge, Akola dated 6.9.1990 in Criminal Revision No. 183 of1990.
2. Shortly stated, the facts of the case arc that the applicant wasmarried with one Preeti Biswas (nee) Mondal on 10.5.1984 and they wereresiding.in Calcutta. That the wife of the applicant deserted the applicant inthe year 1989. The applicant filed a suit for divorce on 22.11.1989 and thereinhe has pleaded in addition to ground of the desertion and cruelty, adulterywith the non-applicant No. 2 Mukund Behari. Summons of the suit wereissued. The non-applicant No. 2 was serving as Chief Executive Officer, ZillaParishad, Akola where he received the summons of the case. He has filedCriminal Case No. 10 of 1990 in the Court of Judicial Magistrate First Class,Akola against the applicant under Sections 294, 499 read with 500 of the IndianPenal Code on the ground that the averments made against him in the suit fordivorce are defamatory. The summons of the complaint case were received bythe applicant.
3. The applicant therefore had moved the Court of Magistrate underSection 309 of the Criminal Procedure Code for stay of the proceedings. Theapplication came to be rejected on 9.7.1990. The applicant therefore preferredCriminal Revision No. 183 of 1990. before the Sessions Court, Akola whichwas also rejected on 6.9.1990. Thereafter, the applicant filed an applicationfor exemption under Section 205 of the Criminal Procedure Code in the Courtof Trial Magistrate, Akola which was also rejected. Hence the applicant haspreferred the instant application.
4. Shri Parchure, the learned Advocate for the applicant, has raisedthe following points :-
(1) The Criminal Court of Akola has no jurisdiction as the publishingof information is at Calcutta and if at all the non-applicant wantsto prosecute the applicant, he has to file proceedings before theCompetent Court at Calcutta ;
(2) Ninth exception to Section 499 of the Indian Penal Code coversthis case.He has placed reliance on , Bhagat Singh Sethi andOthers v. Zinda Lal and {Sukhdeo Vithal Pansare v.Prabhakar Sukhdeo Pansare and Another).
5. Shri N. Phadnis, learned Advocate for the respondent No. 2, hassupported the order of the Trial Court.
6. In the case of Bhagat Singh Sethi and Others v. Zinda Lal , in para 8 of the judgment on the facts of that case, it is held thatthe case of the petitioner was covered by exception 9 to Section 499 of theR.P.C. In the case of Sukhdeo Vithal Pansare v. Prabhakar Sukhdeo Pansareand Another. 1974 Cri. L..T. 1435 it is held that Imputation on character ofanother. Made in good faith and for the protection of one's interest. Exception9 to Section 499 is applicable.
7. In para 7 of the said judgment, it is held --
'Even if it is said to have been published, the petitioner will beprotected by exception 9 to ztion 499, I.P.C. Under the ninthexception, it is not defamation to make an imputation on thecharacter of another provided that the imputation be made in goodfaith for the protection of the interest of the person making it, or ofany other person, or for the public good. Admittedly the imputationwas made for the protection of the petitioner and the petitioner'sfamily interest. I have no doubt also that he has done it in goodfaith because he has taken due care and attention before sending thenotice through his lawyer. After all the reply was to the claim madeby the complainant. It was sent through a lawyer under instructions.He did not advise his lawyer to publish the notice in a newspaper.He can, therefore, very legitimately be said to have done this thingin good faith. In other words he had done it with due care andattention. In this view also, therefore, the order of conviction is notproper.'
8. In view of the legal position, there is much substance in the contentions of Shri Parchure.
9. The application is, therefore, allowed. The impugned orders are quashed and set aside. Similarly, criminal proceedings in Criminal Case No. 10/90pending before the Trial Magistrate are also quashed and set aside. Rule madeabsolute in the above terms.