CRL.L.P./319/2016 of KULDEEP KUMAR CHAUHAN Vs THE STATE & ORS

*IN THE HIGH COURT OF DELHI AT NEW DELHI+CRL.L.P. 319/2016

KULDEEP KUMAR CHAUHAN

..... PetitionerThroughMr. Naveen Kumar Bansal with Ms.Laxmi Narain Atri, Advs.

versus

THE STATE & ORS

..... Respondents

ThroughMr. Arun Kr. Sharma, APPMr. J.N. Kalra, Adv. for R-2

CORAM:

HON'BLE MR. JUSTICE ASHUTOSH KUMARO R R%10.08.2017

Thepetitioner/complainthasquestionedthejudgmentdated29.03.2016 passed in Complaint Case No.218/97 instituted for Section 500of the IPC, passed by the learned ACMM-02 (Central): Delhi whereby therespondent has been acquitted of the charge under Section 500 of the IPC.The petitioner, at the relevant time, was employed as JuniorCommissioned Officer in the Army Educational Core.The father of thepetitioner had donated some land to Radha Swami Satsang Sabha and alsofor the purposes of construction of degree college. The respondent, whohappens to be co-villager of the petitioner, was inimically disposedtowards the family of the petitioner.

The case of the petitioner before the trial court was that therespondent had grabbed the land of the petitioner and in order to divert thegaze, had maliciously made complaint to the superiors of the petitioner.

legalnoticewasalsosenttothepetitionerinwhichcertainderogatory/defamatory remarks were made against the petitioner. On thebasis of the aforesaid legal notice dated 19.08.1996, an inquiry was initiatedagainst the petitioner in which he was exonerated. However, the imputationcontained in the legal notice referred to above damaged and denigrated thereputation of the petitioner in the eyes of others including his co-employeesand the juniors.

The relevant portion of the legal notice wherein such imputationagainst the petitioner has been made is being extracted below:-

“9. That under the circumstances explained above, it would betrue to say that my client apprehends danger to his life and limbsand also danger to the life and limbs of his family members at thehands of above said JCO and his father duly associated by ShriDharampal son of Hira Singh who is nephew of the father of saidJCO.Whenever, the father of said JCO tried to instigate myclient to pick-up fight with him, aforesaid Dharampal alwaysaccompanied him and he also gave abuses and threatened myclient with dire consequences. It would be pertinent to note thatfather of the said JCO and aforesaid Dharampal gave in writingon 25-12-95 and assured that they would not fight with my client.A photocopy of the said undertaking/writing is enclosed herewithfor your ready reference. It would also be better to state hereinthat the father of said JCO had donated land measuring about 7marala to the aforementioned Religious Organization on 18-01-88, but later on the above said JCO created nuisance andaccordingly, his father denied to give possession of the said land.However, due to intervention of the respectables of the villageonly 5 Marlas of land was handed over to the said religiousorganization. The said act and conduct of the said JCO and hisfather clearly go to prove their malafide intention which theyhave by birth.”

The petitioner filed complaint against the respondent under Sections

499 and 500 of the IPC at Dibrugarh Court in the State of Assam. However,the aforesaid complaint was transferred by the orders of Hon’ble SupremeCourt to Delhi.

The trial court, after analysing the evidence on record and thedeposition of the witnesses, came to the conclusion that the case of therespondent was squarely covered under Exception 9 to Section 499 of theIPC and acquitted him of the charge.

The petitioner had examined himself as CW1 and had stated beforethe trial court that it was publically announced at the time of regiment rollcall that legal notice against the petitioner has been received in the office.A show cause notice was served upon him but later he was exonerated of thecharge. He also stated before the trial court that due to the legal notice sentby the accused/respondent, not only did he face mental agony but was alsosubjected to indisciplined behaviour by his juniors. He was not allowed togo on leave.However, in his cross-examination, he admitted of pendingcases between him and the respondent with respect to cutting of treesstanding on the ancestral property.

One Dharam Pal, who was examined as CW2, worked in the sameregiment as that of the petitioner, supported the case of the prosecution. Hehas stated that on receipt of the legal notice, the petitioner became veryworried. However, he did not remember the date when the regiment roll callwas conducted and it was publically disclosed that complaint was receivedagainst the petitioner. He did not even know the contents of the complaintbut only knew that some inquiry was held by the Commanding Officeragainst the petitioner. Thus, CW2 clearly stated about his ignorance withrespect to the contents of the legal notice.

On behalf of the respondent, the respondent examined himself asDW1.He has admitted before the trial court that there was disputepending between him and the petitioner. In cross-examination, he denied ofhaving authorised any advocate by the name of Sudarshan Kumar Ghai togive any legal notice to the petitioner. He was introduced to the aforesaidadvocate through one of his friends. It was clearly averred by him that hedid not sign on any paper nor did he give any fee to the learned advocate.

Rajesh Kumar Singh (DW2) and Constable Virender Singh (DW3)could not state anything in defence of the respondent.However, oneSubhash Chander (DW4) deposed that compromise had taken placebetween the parties.

The trial court on going through the records and on perusal of theevidence adduced on behalf of the parties, discerned that CW2 at the time ofhis deposition had retired from the service and that the petitioner had notproved any document to demonstrate that any legal notice was served uponhim or his Commanding Officer or that the Commanding Officer had issuedany show cause notice to him.

The trial court was, therefore, of the view that there was no proof ofthe fact that the legal notice referred to by the complainant as derogatory ordefamatory was ever served upon him and even if it were served upon him,it only referred to the dispute between the parties and was intended for theprotection and well-being of the respondent, which the respondent, in goodfaith, had got it communicated to the Commanding Officer of the petitioner.

The relevant Sections 499 and 500 are reproduced hereunder:

“499. DefamationWhoever, by words either spoken or intended to be read, or by

signs or by visible representations, makes or publishes anyimputation concerning any person intending to harm, or knowingor having reason to believe that such imputation will harm, thereputation of such person, is said, except in the cases hereinafterexpected, to defame that person.

Explanation 1- It may amount to defamation to impute anythingto deceased person, if the imputation would harm thereputation of that person if living, and is intended to be hurtful tothe feelings of his family or other near relatives.

Explanation 2- It may amount to defamation to make animputation concerning company or an association or collectionof persons as such.

Explanation 3- An imputation in the form of an alternative orexpressed ironically, may amount to defamation.

Explanation 4- No imputation is said to harm person'sreputation, unless that imputation directly or indirectly, in theestimation of others, lowers the moral or intellectual character ofthat person, or lowers the character of that person in respect ofhis caste or of his calling, or lowers the credit of that person, orcauses it to be believed that the body of that person is in loathsome state, or in state generally considered as disgraceful.

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-Ninth Exception Imputation made in good faith by person for'protection of his or others interests- It is not defamation to makean imputation on the character of another provided that theimputation be made in good faith for the protection of theinterests of the person making it, or of any other person, or forthe public good.

500. Punishment for defamation

Whoever defames another shall be punished with simpleimprisonment for term which may extend to two years, or withfine, or with both”

The Ninth Exception to Section 499, which gives protection toimputation made in good faith for the protection of the interest of the person

making it or of any other person or for the public good was explained by theSupreme Court inHarbhajan Singh v. State of Punjab and Anr.AIR 1966SC 97. The Supreme Court in the aforesaid case opined that where theaccused invoked ninth exception to Section 499 of the IPC, good faith andpublic good, both, are required to be satisfied and failure of the accused toprove good faith would exclude the application of the ninth exception. In theaforesaid case, the Supreme Court referred to Section 52 of the IPC whichdefines ‘good faith’ which requires the element of honesty. However, it wasexplained that an accused need not strictly prove the truth of the allegationmade by him for invoking Exception 9.

InSukra Mahto v. Basdeo Kumar Mahto and Anr.1971 (1) SCC885, the same principles were reiterated.

From perusal of the legal notice dated 19.08.1996, it would appearthat there existed dispute between the petitioner and the respondent andthat superior officer of the petitioner was informed about the conduct ofthe petitioner and request was made to restrain him from indulging inillegal activities. This obviously cannot be without good faith and only forthe protection of the interest of the respondent. Good faith is demonstratedby the fact that the superior officer of the petitioner was informed.

Since the matter related to dispute between the parties, anycomplaint has to be seen in the context of an attempt on the part of proposedwrong doer to save/protect his interest. Even public good would be sub-served if any person, who is misusing his official position, is prevented fromdoing so. The respondent, in the present case was only seeking protectionfrom the superior officer of the petitioner.

The illustrations provided in the ninth exception of Section 499 IPC is

very instructive.

“Illustrations

(a) A, shopkeeper, says to B, who manages his business-"Sellnothing to Z unless he pays you ready money, for 1 have noopinion of his honesty". is with in the exception, if he has madethis imputation on Z in good faith for the protection of his owninterests.

(b) A, Magistrate, in making report of his own superiorofficer, casts an imputation on the character of Z. Here, if theimputation is made in good faith, and for the public good, iswithin the exception.”

What is public good and what would be in the interest of the personcharged of the offence are issues which would depend on marshalling offacts and circumstances of particular case.

The trial court has rightly taken the view that in the background ofcivil dispute between the petitioner and the respondent, even if the legalnotice, as claimed by the petitioner, was read out aloud and an inquiry wasconducted into the conduct of the petitioner, that would not constitute anoffence for defamation. If such acts were taken as defamatory acts, it wouldamount preventing people from approaching superior authorities against thewrong doers, for redressal of their grievances.

Since the trial court has taken reasonable view of the matter, this courtconsiders it to be completely unnecessary to interfere with the judgment ofacquittal.

Leave is declined.

The petition is, accordingly, dismissed.

AUGUST 10, 2017/ns

ASHUTOSH KUMAR, J