J. Selvaraj Vs. D.K.P. Vardharajan and Other - Court Judgment

Excerpt:
criminal - defamation - sections 34 and 500 of indian penal code, 1860 - petitioner filed complaint against respondents for defamation - magistrate issued process to both respondents - respondent filed appeal as no prima facie case to proceed against him - complaint rejected on ground that complaint could not be taken cognizance on hearsay material - revision petition - whether trial magistrate right in issuing process - commission of offence stood disclosed on averments made in complaint along with sworn statement of complainant and document appended to complaint - trial magistrate justified in its order and complaint sent to trial magistrate to decide properly. - - the first revisional court, after notice to all parties concerned, allowed the plea of the first respondent (a-2) on the ground that the prosecution depended solely on the truth or otherwise of the contents of the letter written by the second respondent (a-1). the further observation is that it was seen from the inland letter relied on by the complainant that the author of the letter is not a dependable person and there is intrinsic proof in the letter itself that the author thereof had no regard for truth. in other words, supreme court stated therein, that the high court was clearly in error in having proceeded to assess the materials placed before it and concluding that the complaint cannot be proceeded with. it will be better to extract the observations of the supreme court which read as hereunder :so far as the other document is concerned, as already indicated by us, it is a letter written by the superintendent of police to his administrative superior. the document was not available to be relied upon for any purpose and the high court clearly went wrong in seeking support from it by way of corroboration of the oral evidence. sridharan, petitioner's learned counsel, contended, that it will always be possible for the petitioner to prove the signature of the author of the letter as well satisfactorily establish that the first respondent herein was the author of the defamatory allegations. the decisions i have referred to, clearly indicate that the complainant may have to be afforded an opportunity to establish his case, and if he is not able to establish his case even at the pre-trial stage a charge may not even be framed.order1. petitioner selvaraj preferred a private complaint against the respondents before judicial magistrate no. iii, coimbatore, in s.t.r. no. 1933/91 alleging that they had committed an offence punishable under section 500 read with section 34, i.p.c. first respondent herein was shown as a-2, while the second respondent was arrayed as a-1. the sum and substance of the complaint as can be discerned from the averments made, is that on 2-3-1991 at 11 a.m., the complainant (petitioner) received a letter dated 26-7-1991 from the second respondent herein. since the complainant had some eye problem, the asked his friend a. gopal cited as witness no. 2 in the complaint, to read the contents of the said letter. the complainant was shocked and surprised to note the imputations allegedly made against him by the first respondent herein in the presence of the second respondent. the contents of the letter show that the first respondent herein had stated that the complainant was an international fraud, drunkard and a dacoit. according to the complainant, not only those imputations are false, but they had lowered his reputation in the public eye. when the letter was read, some of his subordinates in his industry were present and they commenced looking down upon him. 2. the complaint has cited three other witnesses, apart from a. gopal. the complainant also discloses that the petitioner caused issue of lawyer's notice to both respondents. even though receipt of such notice was acknowledged by the first respondent (a-2), he did not choose to send a reply, while the other accused (a-1/second respondent) sent a reply. after recording the sworn statement of the petitioner, learned magistrate took the complainant on file under section 500, i.p.c. and directed issue of process to both the respondents. 3. at this stage, the first respondent herein (a-2) chose to prefer crl. r.c. no. 71/91 before the first additional sessions judge, coimbatore, contending that the issue of process has to be held to be non est, and there was no prima facie case, to proceed against him. the first revisional court, after notice to all parties concerned, allowed the plea of the first respondent (a-2) on the ground that the prosecution depended solely on the truth or otherwise of the contents of the letter written by the second respondent (a-1). the further observation is that it was seen from the inland letter relied on by the complainant that the author of the letter is not a dependable person and there is intrinsic proof in the letter itself that the author thereof had no regard for truth. he had misused the name of the complainant and received monies by telling lies. hence, much reliance cannot be placed on the contents on that letter, when a person had admittedly spoken lies to suit his convenience. the next ground for holding in favour of the first respondent (a-2), is that the complainant had no direct knowledge about the alleged defamatory words spoken to by a-2. in other words, on hearsay material, a complaint could not be taken cognizance of. thereafter, the learned sessions judge has observed that it appeared to him that the complainant, with the active assistance of the first accused, was trying to abuse the process of law. complainant, ostensibly aggrieved at the verdict of the first additional sessions judge, has chosen to invoke the revisional powers of this court. 4. mr. k. v. sridharan, learned counsel appearing on behalf of the petitioner, contended that in taking cognizance of a complaint, it is not the law, that the complainant should have been an eye witness or should have direct knowledge about commission of offence by a-2. in other words, his submission was that if the averments in the complaint and the documents appended to it, disclose commission of the offence alleged, the learned magistrate would certainly alleged, the learned magistrate would certainly be justified in taking cognizance of the complaint. he then pointed out that the first revisional court had acted beyond its revisional powers, in attempting to strangulate at the inception, a complaint validily laid and hence the order of the first revisional court cannot be sustained. he placed for my consideration certain decided cases, which i will refer to at the appropriate stage. 5. mr. calvin jacob, learned counsel representing the first respondent (a-2), submitted that except the letter allegedly written by the second respondent to the petitioner, there was no other evidence, on which the learned magistrate could have taken cognizance of as far as the first respondent (a-2) was concerned. he contended that the letter cannot prove itself and proof, if at all, can be only through the second respondent, a co-accused in this prosecution. he further submitted that this letter cannot be admitted under section 80 of the indian evidence act. he further argued that in any event, a joint trial cannot be held. in his turn, he placed for my scrutiny, certain decided cases, which i will consider along with the other decisions relied on by petitioner's learned counsel. 6. it is settled law, that if on the averments made in the complaint along with the sworn statement of the complainant, if any recorded, and the documents appended to the complaint, commission of an offence stood disclosed, the magistrate would be justified in issuing process. obviously, all that is required in law, is satisfaction of the magistrate, that there was sufficient ground for proceeding further. the reliability quotient on untested material cannot be gone into at that stage. 7. in shanalakshmi v. r. prasanna kumar : 1990crilj320 while considering exercise of powers by the high court under section 432 of the code of criminal procedure, certain observations have been made, which will optly apply to the present proceeding, though the powers no-invoked are revisional powers of this court. that was a case where the appellant therein married the first respondent on 29-4-1979 and lived together until 1982. two children were born of the wedding. they separated and legal battle between them commenced in 1983. apart from proceedings in the civil court for divorce, appellant instituted a criminal complaint, which was taken cognizance of under sections 494, 496 and 498, a. i.p.c. and and other sections against the respondents. the allegations in the complaint disclosed that while proceedings for decree of divorce were pending, the first respondent had married the second respondent secretly in the presence of the other respondents. on an application by the first respondent to the high court, the impugned proceedings were quashed. thereafter, the appellant was granted special leave by the supreme court. in that context, the supreme court observed, that only in cases where the complaint did not disclose any offence or was frivolous or vexatious or oppressive, the inherent power to quash the proceeding could be exercised. on the other hand, if no the allegations set out in the complaint read as a whole in the light of the statement, on oath of the complainant, the ingredients of the offence or offences stood disclosed and there was no material to show that the complaint was mala fide, frivolous or vexatious, there will be no justification for interference by the high court. supreme court then referred to the principles laid down by it earlier and observed that the high court should not have proceeded to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable, and on such premises quash the proceeding. in other words, supreme court stated therein, that the high court was clearly in error in having proceeded to assess the materials placed before it and concluding that the complaint cannot be proceeded with. supreme court found that there were specific allegations in the complaint disclosing the ingredients of the offence taken cognizance of and it was for the complainant to substantiate the allegations by evidence at a later stage. the order of the high court was accordingly set aside. the principles laid down by the supreme court, will certainly attract the instant facts. 8. in maninder kaur v. rajinder singh 1992 scc (cri) 522 while considering exercise of inherent powers by the high court under section 482 of the code of criminal procedure, supreme court, stated as hereunder; 'at the stage when on the statement of the complainant and the two witnesses, the magistrate came to the opinion that there was sufficient ground for proceeding in the complaint and issued process against the accused/respondents, to test the sufficiency or otherwise of the ground for proceeding was beyond the power of the high court so as to quash the proceedings under section 432, cr.p.c. the value to be attached to the statement made by the appellant under section 164, cr.p.c. was to be examined at the enquiry at the pre-charge stage and possibly at the trial, if charge was to framed.' it was concluded by the supreme court, that quashing of proceedings in the initial stage by the high court, so as to strangulate it at its inception cannot be justified. it was also held that the accused/respondents will have all their rights preserved under law at the stage of enquiry as also at the trial, if there was one eventually. the order of the high court was set aside. 9. in a. chellappa v. kulasekaran and state 1990 mlw (cri.) 41, i had occasion, to consider the powers of a magistrate, when a complaint stood filed. the words 'sufficient ground for proceedings' on the facts placed before court, was also the subject matter of scrutiny. i have pointed out that the approach of the magistrate therein in considering the probable result of the proceedings or the undesirable motive or conduct of the complainant, may not be relevant for consideration at the initial stage. 10. now let us have a quick took at the case law cited by mr. calvin jacob, learned respondents' counsel. in narayan swami v. maharashtra, : 1968crilj657 supreme court, while considering justification of summary dismissal of a criminal appeal by the high court, when substantial and important questions were raised for its consideration, noted that the trial judge while arriving at the conclusion of the guilt of the appellant therein, had placed considerable reliance on the evidence of dilawar given in a dacoity case and to his statement made under section 342 of the code of criminal procedure, as co-accused in the present trial. supreme court stated, that the legal position was quite clear that the evidence given by dilawar in the dacoity case cannot be used as evidence against the appellant, who had no opportunity, to cross-examining dilawar in the said case and further the statement. dilawar as co-accused made under section 342, cr.p.c. (present section 313, cr.p.c.) in the present trial cannot be used against the appellant. the supreme court was considering the approach made by the high court, after termination of a full-fledged trial before the learned sessions judge, we are at the there shold of a complaint having been entertained and process issued, while the entire gamut of trial is still open where it will be possible for the first respondent herein, to put forth all his defences and even question the feasibility of the joint trial, with the second respondent, a-1. the law laid down in narayan swami's case : 1968crilj657 will not be useful, to decide the issue involved. 11. in vinod chaturvedi v. state of m.p. : 1984crilj814 the consideration of the supreme court, was justification of conviction recorded by the high court by reversal of verdict of acquittal. there were two trials on charges of murder and abduction. alleged eye witnesses were close relations of the deceased implicating named persons as assailants in the earlier trial. on their acquittal, they chose to implicate a different set of persons as assailants in the second trial. supreme court found that no credence can be given to the evidence of witnesses and conviction in second trial was improper. in that context, supreme court had to consider the effect of a document. it will be better to extract the observations of the supreme court which read as hereunder : 'so far as the other document is concerned, as already indicated by us, it is a letter written by the superintendent of police to his administrative superior. the writer of the letter has not been examined as a witness. no opportunity has been given to the defence to cross-examine the writer. to rely on the contents of that letter in such circumstances is totally misconceived. the document was not available to be relied upon for any purpose and the high court clearly went wrong in seeking support from it by way of corroboration of the oral evidence.' against this is a matter where the supreme court was considering the approach made by the high court, after conclusion of a full-fledged trial before the learned sessions judge. it will always be open to the first respondent herein to challenge the admissibility of the document. mr. k. v. sridharan, petitioner's learned counsel, contended, that it will always be possible for the petitioner to prove the signature of the author of the letter as well satisfactorily establish that the first respondent herein was the author of the defamatory allegations. he even went to the extent of contending that under section 257 of the code of criminal procedure, it may even be open to the complainant to withdraw the prosecution against the second respondent, a-1, and have him examined as a witness against the first respondent herein. these are matters, which will have to be relegated to be considered by the learned trial magistrate. the decisions i have referred to, clearly indicate that the complainant may have to be afforded an opportunity to establish his case, and if he is not able to establish his case even at the pre-trial stage a charge may not even be framed. the feasibility of joint trial or otherwise can also be challenged before the trial magistrate. the two grounds, on which the learned sessions judge had chosen to allow crl. r. c. no. 71/91 cannot be upheld on any reasonable ground. that the learned sessions judge had exceeded his revisional jurisdiction is so apparent, that this court, to preserve the cause of justice, will have to necessarily interfere, by setting aside the impugned order. it shall be so done. 12. now, the complaint will go back to the learned trial magistrate, who will dispose of the summary trial case, in accordance with law, after giving all opportunities to the parties concerned to put forth their respective cases. the learned magistrate, shall dispose of the trial as expeditiously as possible, since the matter is pending from 1991. this criminal revision case is allowed. 13. petition allowed.

Judgment:
ORDER

1. Petitioner Selvaraj preferred a private complaint against the respondents before Judicial Magistrate No. III, Coimbatore, in S.T.R. No. 1933/91 alleging that they had committed an offence punishable under Section 500 read with Section 34, I.P.C. First respondent herein was shown as A-2, while the second respondent was arrayed as A-1. The sum and substance of the complaint as can be discerned from the averments made, is that on 2-3-1991 at 11 a.m., the complainant (Petitioner) received a letter dated 26-7-1991 from the second respondent herein. Since the complainant had some eye problem, the asked his friend A. Gopal cited as witness No. 2 in the complaint, to read the contents of the said letter. The complainant was shocked and surprised to note the imputations allegedly made against him by the first respondent herein in the presence of the second respondent. The contents of the letter show that the first respondent herein had stated that the complainant was an international fraud, drunkard and a dacoit. According to the complainant, not only those imputations are false, but they had lowered his reputation in the public eye. When the letter was read, some of his subordinates in his industry were present and they commenced looking down upon him.

2. The complaint has cited three other witnesses, apart from A. Gopal. The complainant also discloses that the petitioner caused issue of lawyer's notice to both respondents. Even though receipt of such notice was acknowledged by the first respondent (A-2), he did not choose to send a reply, while the other accused (A-1/second respondent) sent a reply. After recording the sworn statement of the petitioner, learned Magistrate took the complainant on file under Section 500, I.P.C. and directed issue of process to both the respondents.

3. At this stage, the first respondent herein (A-2) chose to prefer Crl. R.C. No. 71/91 before the First Additional Sessions Judge, Coimbatore, contending that the issue of process has to be held to be non est, and there was no prima facie case, to proceed against him. The first revisional Court, after notice to all parties concerned, allowed the plea of the first respondent (A-2) on the ground that the prosecution depended solely on the truth or otherwise of the contents of the letter written by the second respondent (A-1). The further observation is that it was seen from the inland letter relied on by the complainant that the author of the letter is not a dependable person and there is intrinsic proof in the letter itself that the author thereof had no regard for truth. He had misused the name of the complainant and received monies by telling lies. Hence, much reliance cannot be placed on the contents on that letter, when a person had admittedly spoken lies to suit his convenience. The next ground for holding in favour of the first respondent (A-2), is that the complainant had no direct knowledge about the alleged defamatory words spoken to by A-2. In other words, on hearsay material, a complaint could not be taken cognizance of. Thereafter, the learned Sessions Judge has observed that it appeared to him that the complainant, with the active assistance of the first accused, was trying to abuse the process of law. Complainant, ostensibly aggrieved at the verdict of the First Additional Sessions Judge, has chosen to invoke the revisional powers of this Court.

4. Mr. K. V. Sridharan, learned counsel appearing on behalf of the petitioner, contended that in taking cognizance of a complaint, it is not the law, that the complainant should have been an eye witness or should have direct knowledge about commission of offence by A-2. In other words, his submission was that if the averments in the complaint and the documents appended to it, disclose commission of the offence alleged, the learned Magistrate would certainly alleged, the learned Magistrate would certainly be justified in taking cognizance of the complaint. He then pointed out that the first revisional Court had acted beyond its revisional powers, in attempting to strangulate at the inception, a complaint validily laid and hence the order of the first revisional Court cannot be sustained. He placed for my consideration certain decided cases, which I will refer to at the appropriate stage.

5. Mr. Calvin Jacob, learned Counsel representing the first respondent (A-2), submitted that except the letter allegedly written by the second respondent to the petitioner, there was no other evidence, on which the learned Magistrate could have taken cognizance of as far as the first respondent (A-2) was concerned. He contended that the letter cannot prove itself and proof, if at all, can be only through the second respondent, a co-accused in this prosecution. He further submitted that this letter cannot be admitted under Section 80 of the Indian Evidence Act. He further argued that in any event, a joint trial cannot be held. In his turn, he placed for my scrutiny, certain decided cases, which I will consider along with the other decisions relied on by petitioner's learned counsel.

6. It is settled law, that if on the averments made in the complaint along with the sworn statement of the complainant, if any recorded, and the documents appended to the complaint, commission of an offence stood disclosed, the Magistrate would be justified in issuing process. Obviously, all that is required in law, is satisfaction of the Magistrate, that there was sufficient ground for proceeding further. The reliability quotient on untested Material cannot be gone into at that stage.

7. In Shanalakshmi v. R. Prasanna Kumar : 1990CriLJ320 while considering exercise of powers by the High Court under Section 432 of the Code of Criminal Procedure, certain observations have been made, which will optly apply to the present proceeding, though the powers no-invoked are revisional powers of this Court. That was a case where the appellant therein married the first respondent on 29-4-1979 and lived together until 1982. Two children were born of the wedding. They separated and legal battle between them commenced in 1983. Apart from proceedings in the Civil Court for divorce, appellant instituted a criminal complaint, which was taken cognizance of under Sections 494, 496 and 498, A. I.P.C. and and other sections against the respondents. The allegations in the complaint disclosed that while proceedings for decree of divorce were pending, the first respondent had married the second respondent secretly in the presence of the other respondents. On an application by the first respondent to the High Court, the impugned proceedings were quashed. Thereafter, the appellant was granted special leave by the Supreme Court. In that context, the Supreme Court observed, that only in cases where the complaint did not disclose any offence or was frivolous or vexatious or oppressive, the inherent power to quash the proceeding could be exercised. On the other hand, if no the allegations set out in the complaint read as a whole in the light of the statement, on oath of the complainant, the ingredients of the offence or offences stood disclosed and there was no material to show that the complaint was mala fide, frivolous or vexatious, there will be no justification for interference by the High Court. Supreme Court then referred to the principles laid down by it earlier and observed that the High Court should not have proceeded to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable, and on such premises quash the proceeding. In other words, Supreme Court stated therein, that the High Court was clearly in error in having proceeded to assess the materials placed before it and concluding that the complaint cannot be proceeded with. Supreme Court found that there were specific allegations in the complaint disclosing the ingredients of the offence taken cognizance of and it was for the complainant to substantiate the allegations by evidence at a later stage. The order of the High Court was accordingly set aside. The principles laid down by the Supreme Court, will certainly attract the instant facts.

8. In Maninder Kaur v. Rajinder Singh 1992 SCC (Cri) 522 while considering exercise of inherent powers by the High Court under Section 482 of the Code of Criminal Procedure, Supreme Court, stated as hereunder;

'At the stage when on the statement of the complainant and the two witnesses, the Magistrate came to the opinion that there was sufficient ground for proceeding in the complaint and issued process against the accused/respondents, to test the sufficiency or otherwise of the ground for proceeding was beyond the power of the High Court so as to quash the proceedings under Section 432, Cr.P.C. The value to be attached to the statement made by the appellant under Section 164, Cr.P.C. was to be examined at the enquiry at the pre-charge stage and possibly at the trial, if charge was to framed.'

It was concluded by the Supreme Court, that quashing of proceedings in the initial stage by the High Court, so as to strangulate it at its inception cannot be justified. It was also held that the accused/respondents will have all their rights preserved under law at the stage of enquiry as also at the trial, if there was one eventually. The order of the High Court was set aside.

9. In A. Chellappa v. Kulasekaran and State 1990 MLW (Cri.) 41, I had occasion, to consider the powers of a Magistrate, when a complaint stood filed. The words 'sufficient ground for proceedings' on the facts placed before Court, was also the subject matter of scrutiny. I have pointed out that the approach of the Magistrate therein in considering the probable result of the proceedings or the undesirable motive or conduct of the complainant, may not be relevant for consideration at the initial stage.

10. Now let us have a quick took at the case law cited by Mr. Calvin Jacob, learned respondents' counsel. In Narayan Swami v. Maharashtra, : 1968CriLJ657 Supreme Court, while considering justification of summary dismissal of a criminal appeal by the High Court, when substantial and important questions were raised for its consideration, noted that the trial Judge while arriving at the conclusion of the guilt of the appellant therein, had placed considerable reliance on the evidence of Dilawar given in a dacoity case and to his statement made under Section 342 of the Code of Criminal Procedure, as co-accused in the present trial. Supreme Court stated, that the legal position was quite clear that the evidence given by Dilawar in the dacoity case cannot be used as evidence against the appellant, who had no opportunity, to cross-examining Dilawar in the said case and further the statement. Dilawar as co-accused made under Section 342, Cr.P.C. (present Section 313, Cr.P.C.) in the present trial cannot be used against the appellant. The Supreme Court was considering the approach made by the High Court, after termination of a full-fledged trial before the learned Sessions Judge, we are at the there shold of a complaint having been entertained and process issued, while the entire gamut of trial is still open where it will be possible for the first respondent herein, to put forth all his defences and even question the feasibility of the joint trial, with the second respondent, A-1. The law laid down in Narayan Swami's case : 1968CriLJ657 will not be useful, to decide the issue involved.

11. In Vinod Chaturvedi v. State of M.P. : 1984CriLJ814 the consideration of the Supreme Court, was justification of conviction recorded by the High Court by reversal of verdict of acquittal. There were two trials on charges of murder and abduction. Alleged eye witnesses were close relations of the deceased implicating named persons as assailants in the earlier trial. On their acquittal, they chose to implicate a different set of persons as assailants in the second trial. Supreme Court found that no credence can be given to the evidence of witnesses and conviction in second trial was improper. In that context, Supreme Court had to consider the effect of a document. It will be better to extract the observations of the Supreme Court which read as hereunder :

'So far as the other document is concerned, as already indicated by us, it is a letter written by the Superintendent of police to his administrative superior. The writer of the letter has not been examined as a witness. No opportunity has been given to the defence to cross-examine the writer. To rely on the contents of that letter in such circumstances is totally misconceived. The document was not available to be relied upon for any purpose and the High Court clearly went wrong in seeking support from it by way of corroboration of the oral evidence.'

Against this is a matter where the Supreme Court was considering the approach made by the High Court, after conclusion of a full-fledged trial before the learned Sessions Judge. It will always be open to the first respondent herein to challenge the admissibility of the document. Mr. K. V. Sridharan, petitioner's learned counsel, contended, that it will always be possible for the petitioner to prove the signature of the author of the letter as well satisfactorily establish that the first respondent herein was the author of the defamatory allegations. He even went to the extent of contending that under Section 257 of the Code of Criminal Procedure, it may even be open to the complainant to withdraw the prosecution against the second respondent, A-1, and have him examined as a witness against the first respondent herein. These are matters, which will have to be relegated to be considered by the learned trial Magistrate. The decisions I have referred to, clearly indicate that the complainant may have to be afforded an opportunity to establish his case, and if he is not able to establish his case even at the pre-trial stage a charge may not even be framed. The feasibility of joint trial or otherwise can also be challenged before the trial Magistrate. The two grounds, on which the learned Sessions Judge had chosen to allow Crl. R. C. No. 71/91 cannot be upheld on any reasonable ground. That the learned Sessions Judge had exceeded his revisional jurisdiction is so apparent, that this Court, to preserve the cause of justice, will have to necessarily interfere, by setting aside the impugned order. It shall be so done.

12. Now, the complaint will go back to the learned trial Magistrate, who will dispose of the summary trial case, in accordance with law, after giving all opportunities to the parties concerned to put forth their respective cases. The learned Magistrate, shall dispose of the trial as expeditiously as possible, since the matter is pending from 1991. This criminal revision case is allowed.

13. Petition allowed.