THE HON’BLE SRI JUSTICE T. SUNIL CHOWDARY CRIMINAL PETITION No.8936 OF 2011 Between:
E. Laxmi Reddy 01.08.2014 ...PETITIONER Vs.
The State of A.P. rep. by Public Prosecutor High Court of A.P, Hyderabad and another.
RESPONDENTS < GIST:
> HEAD NOTE:
!Counsel for Petitioners : Sri P. Veera Reddy, Senior Counsel For Sri Karri Murali Krishna ^Counsel for 1st Respondent: Additional Public Prosecutor ^Counsel for 2nd Respondent: Sri J. Sudheer ? Cases referred
[1] AIR 1979 SC 1841
2 (2008) 14 SCC 661
3 2006 (3) ALT (Crl.) 355 (A.P.)
4 (2010) 15 SCC 163
5 (1981) 3 SCC 208
THE HON’BLE SRI JUSTICE T. SUNIL CHOWDARY CRIMINAL PETITION No.8936 OF 2011 ORDER:
This petition is filed under Section 482 Cr.P.C. to quash the proceedings in C.C.No.616 of 2011 on the file of XIV Additional Chief Metropolitan Magistrate, City Criminal Courts, Namapply, Hyderabad.
Sri P. Veera Reddy, the learned senior counsel appearing for the petitioner submitted that institution of criminal proceedings against the petitioner is not maintainable for the following two grounds, viz., 1) Second respondent filed the complaint without following the due procedure as contemplated under Section 197 Cr.P.C; and 2) The allegations made in the complaint do not constitute any offence, much less the alleged offence under Section 500 IPC.
Per contra, Sri J. Sudheer, the learned counsel for the second respondent submitted that there is no need to follow the procedure contemplated under Section 197 Cr.P.C. He further submitted that since the allegations made in the complaint satisfy the basic ingredients of Section 499 IPC, the complaint before the Court below is maintainable.
The second respondent filed a complaint under Section 200 Cr.P.C. against the petitioner for the offence punishable under Section 500 IPC on the file of the learned XIV Additional Chief Metropolitan Magistrate, City Criminal Courts, Nampally, Hyderabad. The learned Magistrate, after following the due procedure contemplated under Cr.P.C, has taken cognizance of the offence against the petitioner under Section 500 IPC and issued process.
The second respondent worked as Additional Director of Civil Supplies and retired from service on attaining the age of superannuation. He also worked as president of Civil Supplies Welfare Association (hereinafter referred as ‘the association’) while he was in government service. The petitioner has been working as Assistant Director of Civil Supplies department, Somajiguda, Hyderabad. After retirement of the second respondent, the petitioner was elected as president of the Association. However, the 2nd respondent was elected as honorary president of the Association. The petitioner and the respondent are acting as president and honorary president of the Association. In course of time, disputes arose between them in connection with the day to day affairs of the association.
While things stood thus, the petitioner addressed a letter to the Commissioner of Civil Supplies on 20.04.2010 making some allegations against the second respondent. Being felt ashamed of the allegations made in the said letter, the second respondent filed the complaint before the court below. The above said fact is the root cause which made the petitioner and the second respondent to approach the criminal court as well as this Court.
The first question that arises for consideration is whether the filing of complaint by the second respondent is hit by the provisions of Section 197 Cr.P.C.
Section 21 IPC defines ‘public servant’. There is no doubt that the petitioner herein will fall within the scope of public servant, as defined under Section 21 IPC. But whether he is entitled to take shelter under Section 197 Cr.P.C has to be considered in the light of the alleged lis between the petitioner and the second respondent. The relevant portion of Section 197 Cr.P.C reads as follows:
197. Prosecution of Judges and public servants.-
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(a) x x x x x x
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.
(2) x x x x x x
(3) x x x x x x
(4) x x x x x x
A perusal of Section 197 Cr.P.C. at a glance demonstrates that this section was incorporated in Cr.P.C. to protect a public servant in respect of an act or omission committed by him while discharging duties in his official capacity. The test to be applied is whether the alleged act of the petitioner will fall within the four corners of Section 197 Cr.P.C or not?
It is not the case of the petitioner that he addressed the letter dated 20.04.2010 to the Commissioner of Civil Supplies department while discharging his duties as Additional Director of Civil Supplies. Nowhere it is mentioned that the The Association activities forms integral part of the official duties of an Additional Director. It is a known fact that associations are formed to pursue the welfare and well being of the employees of that particular department. It is the choice of the government employee either to join in the association or not. The nature of the duties discharged by the petitioner as Additional Director of Civil Supplies is entirely different to that of a president of the Civil Supplies Service Association. The association activities cannot be equated with the official duties. Both are distinct and different to each other. A perusal of the letter dated 20.04.2010 clearly manifest that the petitioner addressed the said letter to the Commissioner of Civil Supplies in the capacity of president of the Association but not while discharging his official duties as Additional Director of Civil Supplies Department. Addressing of letter by the petitioner to the Commissioner of Civil Supplies will not fall within the purview of Section 197 Cr.P.C.
The Hon’ble Supreme Court, in B.Saha and Ors. Vs. M.S. [1] Kochar , while interpreting the scope of Section 197 Cr.P.C, held as under:
“17. In sum, the sine qua non for the applicability of this Section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him.”
Having regard to the facts of the case on hand and the principle enunciated in the case cited supra, I am unable to accede to the contention of the learned counsel for the petitioner that filing of the complaint is hit by Section 197 Cr.P.C.
Sri P.Veera Reddy, the learned senior counsel for the petitioner would submit that the alleged imputation, if any, made by the petitioner against the second respondent will fall within the exceptions of Section 499 IPC; hence it is a fit case to quash the proceedings.
Per contra, Sri J. Sudheer, the learned counsel for the second respondent submitted that the allegations made in the complaint will fall within the ambit of Section 499 IPC; therefore, the petition is liable to be dismissed.
To substantiate his argument, the learned counsel for the petitioner has drawn my attention to the ratio laid down in the following decisions:
[2]
i. Lakhwant Singh Vs. Jasbir Singh and Others . The relevant portion at para No.9 of the judgment reads as under:
“…….It would not be proper for the High Court 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, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 Cr.P.C. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court…..”
[3]
ii. K. Papi Reddy Vs. B. Venkateshwarlu and another wherein this Court held that where a statement imputation is made against a person in good faith, for public good, without malice or ill-will, the same will fall within the ambit of Exception 9 of Section 499 IPC.
iii. Rajesh Rangarajan Vs. Crop Care Federation of Indian and [4] Another . As per the principle enunciated in this case, the Court can quash the proceedings under Section 482 Cr.P.C. if the allegations made in the complaint do not satisfy the basic ingredients of Section 499 IPC.
Let me consider the facts of the case on hand in the light of the rival contentions and the legal principle cited supra.
It is not out of place to extract hereunder the relevant portion in para No.8 of the complaint, which reads as under:
“….Even the distribution of the handbook by the Complainant is tainted as an action to gain sympathy and support. Anonymous Complaint if any made against the employees cannot be attributed to any individual/Association and at any rate it cannot be attributed to the complainant. Above all, the action of the Accused in tarnishing the image and reputation of the Complainant only to defame him requires criminal action against the accused. Due to writing such letters several enquiries were made by known persons about truth and otherwise of the allegations made against the Complainant in the said letter. He faced several embracing situations in view of such reckless allegations.”
A perusal of the complaint prima facie reveals that the petitioner made certain imputation or allegations against the second respondent.
The next question that fall for consideration is whether the allegations or imputation made by the petitioner against the second respondent will fall within the ambit of Exceptions 1, 2, 3 and 9 of Section 499 IPC as contented by the learned counsel for the petitioner.
Exception 2 to Section 499 IPC deals with public conduct of a public servant. Admittedly, the second respondent is not a public servant as defined under Section 21 IPC as he retired from service long back. The gist of Exceptions 1, 2 and 9 is that making of imputation against a person in good faith and in public interest.
Whether a person made an accusation against the other in good faith or public interest or not will be considered with reference to the facts and circumstances of a particular case and other attending circumstances. Whether the petitioner addressed the letter dated 20.04.2010 to the Commissioner of Civil Supplies Department in good faith or not is purely a question of fact. It is a settled principle of law that a pure question of fact shall not fall within the ambit of Section 482 Cr.P.C. Even otherwise, the burden of proof lies on the petitioner to establish that he addressed the letter dated 20.04.2010 to the Commissioner of Civil Supplies Department in good faith and in public interest.
In identical circumstances, the apex Court in Sewakram
[5]
Sobhani Vs. R.K.Karanjia, Chief Editor, Weekly Blitz & Others held as under:
The prayer in the application before the High Court was merely to quash the order dated November 30, 1977 of the learned Chief Judicial Magistrate, Bhopal and not to quash the complaint itself as the High Court has done. But, that was only a technical defect and we do not take serious notice of it in an appeal under Article 136 of the Constitution where we are very naturally concerned with substantial justice and not with shadow puppetry. The position now is this: The news item in the Blitz under the caption “MISA Rape in Bhopal Jail” undoubtedly contained serious imputations against the character and conduct of the complainant. In order to attract the Ninth Exception to Section 499 of the Indian Penal Code, the imputations must be shown to have been made (1) in good faith, and (2) for the protection of the interest of the person making it or of any other person or for the public good. “Good faith” is defined, in a negative fashion, by Section 52 of the Indian Penal Code as follows: “Nothing is said to be done or believed in ‘good faith’ which is done or believed without due care and attention”. The insistence is upon the exercise of due care and attention. Recklessness and negligence are ruled out by the very nature of the definition. The standard of care and attention must depend on the circumstances of the individual case, the nature of the imputation, the need and the opportunity for verification, the situation and context in which the imputation
was made, the position of the person making the imputation, and a variety of other factors. Good faith, therefore is a matter for evidence. It is a question of fact to be decided on the particular facts and circumstances of each case. So too the question whether an imputation was made for the public good. In fact the First Exception of Section 499 of the Indian Penal Code expressly states “Whether or not it is for the public good is a question of fact”. “Public good” like “good faith” is a matter for evidence and not conjecture.
It is a settled principle of law that the Court has to take into consideration the allegations made in the complaint only while deciding the petition under Section 482 Cr.P.C. The Court is not justified in embarking upon an enquiry to ascertain the truthfulness or otherwise of the allegations made in the complaint at the pre- trial stage. The allegations made in the complaint, prima facie, constitute the offence alleged to have been committed by the petitioner for the offence punishable under Section 500 IPC.
A perusal of the record reveals that the learned Magistrate, after satisfying himself with the material available on record, has taken cognizance of the offence against the petitioner under Section 500 IPC. Viewed from either legal or factual aspects, I am of the considered opinion that the trial Court has not committed any irregularity or illegality while taking cognizance of the offence against the petitioner.
Having regard to the facts and circumstances of the case, I am of the considered opinion that it is not a fit case to quash the proceedings in C.C.No.616 of 2011 on the file of XIV Additional Chief Metropolitan Magistrate, City Criminal Courts, Namapply, Hyderabad.
The Criminal petition is accordingly dismissed. As a sequel, miscellaneous petitions, if any pending in this Criminal Petition shall stand closed.
T. SUNIL CHOWDARY, J.
Date: 01-08-2014.
L.R. Copy be marked B/o Kvsn
[1] AIR 1979 SC 1841
[2] (2008) 14 SCC 661
[3] 2006 (3) ALT (Crl.) 355 (A.P.)
[4] (2010) 15 SCC 163
[5] (1981) 3 SCC 208