[1.0] Present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the applicant herein – original accused No.7 to quash and set aside the impugned complaint being Criminal Case No.849/2001 pending in the Court of learned Judicial Magistrate, First Class, Rajula filed by respondent No.2 herein – original complainant against the applicant and others for the offences punishable under Sections 500 read with Section 114 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). [2.0] Respondent No.2 herein – original complainant has filed the impugned complaint being Criminal Case No.849/2001 in the Court of learned Judicial Magistrate, First Class, Rajula for the offence under Section 500 read with Section 114 of the IPC against his six sisters and the applicant herein alleging interalia that on 04.06.2008, the original accused Nos.1 to 6 – sisters of the complainant came to Rajula and informed the complainant that there is a Farman of their religious head who is known as Aka Maula, that their parents are permitted to go to Jamnagar and stay there and therefore, their parents were permitted to go to Jamnagar and stay there. It is further alleged in the said complaint that thereafter the parents of the complainant initiated proceedings for maintenance under Section 125 of the CrPC and in which his father produced one Farman dated 29.05.1998 in the court proceedings on 08.08.2001 which was in Arabic language and on getting the same translated into Gujarati, he came to know that the applicant has played mischief in the aforesaid Farman issued by the Mukashir Saheb by inserting a note in it “Huzurala (T.U.S.) has permitted parents to go to Jamnagar”. It is further alleged in the said complaint that the aforesaid Farman was given by Mukashir Maula, who is Priest No.3 in Dawoodi Bohra Community and as per the note it was stated Huzurala (T.U.S.), who is the Priest No.1 in the community, has permitted his parents to go to Jamnagar. It is alleged in the said complaint that the same was fraudulent because the No.1 Priest never puts any note in the Farman issued by No.3 Priest of the Dawoodi Bohra Community. It is further alleged in the said complaint that the said note on the said letter head / Farman dated 29.05.1998 was got manipulated by his sisters and the applicant – original accused No.7 to lower down the image of the complainant in the society and his community and it has harmed the reputation of the complainant and because of the same his business is closed and is having financial difficulties. Therefore, it is alleged that the accused persons have committed the offence of defamation as per Section 499 of IPC and therefore, they are required to be punished under Section 500 of the IPC.
[2.1] In the said complaint, the learned JMFC, Rajula has directed to issue summons/process against the applicant and others for the offence under Section 500 and Section 114 of the IPC. Hence, the applicant herein – original accused No.7 who was working in the office of Mukashir Maula, who is the Priest No.3 in the Dawoodi Bohra Community, has preferred the present Criminal Miscellaneous Application under Section 482 of the CrPC.
[3.0] Shri M.I. Merchant, learned advocate appearing on behalf of the applicant – original accused No.7 has vehemently submitted that as such the applicant has not committed any offence as alleged under Section 500 of the IPC. It is submitted that the communication/Farman dated 29.05.1998 addressed to the Amil Saheb Mahuva by no stretch of imagination can be said to be defamation. It is submitted that by the aforesaid communication, it was communicated to the Amil Saheb Mahuva that the sister of the complainant Jubanaben has approached him making a grievance that her brother Nuruddin of Rajula is not taking proper care of their parents and that is why they want to take their parents to Jamnagar and by the aforesaid communication, Amil Saheb, Mahuva was requested to call Nuruddin before him and explain and clarify him the matter. It is submitted that as such the sisters of the complainant approached the religious head Mukashir Maula, who is religious head No.3, for guidance to take their parents to Jamnagar as their brother was not taking proper care of their parents and simultaneously they also approached the Amil Saheb, Mahuva and to that, by aforesaid communication dated 29.05.1998, Amil Saheb Mahuva was requested to do the needful in the matter. It is submitted that at the relevant time Huzurala (T.U.S.) also permitted the parents to go to Jamnagar. It is submitted that by the aforesaid Farman dated 29.05.1998, it cannot be said that the applicant – original accused No.7 who has communicated the said communication, has committed any offence of defamation. It is submitted that admittedly the parents had thereafter went to stay at Jamnagar as the complainant was not taking proper of his parents and infact they were required to initiate the proceedings before the Magistrate for maintenance under Section 125 of the CrPC and even till the father died, he was not staying with the complainant and even today also, the mother is staying at Mumbai who is maintained by the sisters.
[3.1] It is further submitted by Shri Merchant, learned advocate appearing on behalf of the applicant that as such there was no publication of any Farman and/or communication dated 29.05.1998 by the applicant with a view to lower down the image and/or harm the reputation of the applicant. It is submitted that as such the said was an internal communication to Amil Saheb who was requested to look into the matter and to call upon the complainant. It is submitted that according to the complainant, he himself had shown this communication to other members of his community for which the applicant cannot be held responsible. Therefore, it is submitted that to continue criminal proceedings against the applicant for the offence under Section 500 and 114 of the IPC would be unnecessary harassment to the applicant and the same shall be abuse of process of law and the Court. Therefore, it is requested to quash and set aside the impugned criminal proceedings / complaints for the offence under Section 500 read with Section 114 of the IPC.
[4.0] Application is opposed by Shri M.B. Parikh, learned advocate appearing on behalf of respondent No.2 – original complainant. It is submitted that as such in the communication / Farman dated 29.05.1998, the applicant who was serving in the office of Mukashir Maula, religious head No.3 of Dawoodi Bohra Community, deliberately inserted the note that the Huzurala (T.U.S.) who is the religious head No.1 in the Community has permitted parents to go to Jamnagar deliberately and with a view to lower down the image of the complainant in the society. It is submitted that as such treating the note as a Farman from the religious head, the complainant agreed to send his parents to Jamnagar. It is submitted that as such the Huzurala (T.U.S.) is not issuing such a Farman and whenever any Farman is issued by the Huzurala (T.U.S.), the same is always on his letter pad with a distinct seal. It is submitted that even Huzurala (T.U.S.), the first religious head as well as Mukashir Maula, the third religious head have separate and distinct seals. It is submitted that only in the year 2001 when the aforesaid Farman was produced by the father of the complainant in the court proceedings, he got the copy of the same which was in Arabic language and thereafter he got it translated into Gujarati and he came to know about the same that it cannot be the Farman of Huzurala (T.U.S.) and that the applicant has deliberately inserted the same with a view to malign the complainant and with a view to lower down his image in the society, which was read by the members of the community / society and thereby the reputation and the image of the complainant is lower down to certain extent and he has lost his business and even his daughters are still unmarried. Therefore, it is submitted that a clear case of defamation has been made out. It is submitted that when the learned Magistrate has directed to issue process against the applicant and others for the offence under Section 500 and Section 114 of the IPC after holding inquiry under Section 202 of the CrPC, the same is not required to be interfered by this Court in exercise of powers under Section 482 of the CrPC. Therefore, it is requested to dismiss the present application.
[5.0] Heard the learned advocates appearing for respective parties at length and has considered the averments and allegations in the impugned complaint which has been filed by respondent No.2 herein – original complainant for the offence of defamation. At the outset it is the case on behalf of the original complainant that in the Farman/communication dated 29.05.1998 by and/or from the office of Mukashir Maula, the third religious head in Dawoodi Bohra Community written by the applicant – original accused No.7 dated 29.05.1998, by inserting a note that “Huzurala (T.U.S.) has permitted the parents to go to Jamnagar”. It was with a view to lower down the image of the complainant and/or by that it has affected and/or harmed the reputation of the complainant and therefore, it is alleged that the applicant – original accused No.7 and other accused (sisters of the complainant) have committed the offence of defamation. Before considering the Farman dated 29.05.1998, the cause for such a Farman is required to be considered. The sisters of the complainant approached the religious head of the Dawoodi Bohra Community to get guidance and permit them to take their parents to Jamnagar and stay there as the complainant – their brother was not taking care of their parents. They also approached the Amil Saheb, Mahuva for guidance. That the Mukashir Maula, who is the third religious head in the Dawoodi Bohra Community send a communication / Farman dated 29.05.1998 addressed to Amil Saheb, Mahuva observing that original accused No.6 Jamunaben – sister of the complainant had approached him for guidance to take their parents to Jamnagar as his brother Nuruddin (complainant herein) of Rajula is not taking proper care of their parents and therefore, he was informed to look into the matter and even call Nuruddin – the complainant. In the said Farman/communication, there is a note that “Huzurala (T.U.S.) has permitted the parents to go to Jamnagar”. By the aforesaid, it cannot be said that it was with a view cause injury and/or to harm the reputation of the complainant. The fact remains that thereafter the parents of the complainant were staying separately at Jamnagar and thereafter at Mumbai and the sisters have all throughout taken care of the parents and maintained them. It is also required to be noted that even the parents were required to initiate the proceedings for maintenance under Section 125 of the CrPC against the complainant. It is also required to be noted that till the father died, the complainant has not taken care of his father and till his death he was maintained by his daughters. Even today also, the old aged mother is staying separately at Mumbai who is being looked after by the sisters. Considering the aforesaid facts and circumstances, more particularly, the communication/Farman dated 29.05.1998, it cannot be said that any offence has been committed by the applicant under Section 500 read with Section 114 of the IPC. It is required to be noted at this stage that the said communication was an internal communication to Amil Saheb, Mahuva on the letter head of the third religious head of Dawoodi Bohra Community, which was communicated through the applicant. The applicant has not published the same. On the contrary, it is the specific case on behalf of the complainant that when the aforesaid Farman dated 29.05.1998 was produced by his father in the maintenance proceedings, he came to know about the same and thereafter he got it translated into Gujarati as the communication dated 29.05.1998 was in Arabic language and thereafter he has shown the same to other members of the society. Therefore, it was the complainant who has shown the said Farman to other members of the society/community. Under the circumstances, it cannot be said that the applicant has committed any offence under Section 500 read with Section 114 of the IPC. Under the circumstances, to continue criminal proceedings against the applicant would be unnecessary harassment to the applicant and the same shall be abuse of process of law and the Court and therefore, this is a fit case to exercise powers under Section 482 of the CrPC.
[6.0] In view of the above and for the reasons stated above, the present Criminal Miscellaneous Application succeeds and the impugned complaint being Criminal Case No.849/2001 pending in the Court of learned Judicial Magistrate, First Class, Rajula filed by respondent No.2 herein is quashed and set aside so far as the applicant herein is concerned and consequently the order passed by the learned Magistrate directing to issue process against the applicant for the offences under Section 500 read with Section 114 of the IPC in the aforesaid complaint is also hereby quashed and set aside. Rule is made absolute accordingly.
(M.R. Shah, J.) *menon