HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL PETITION No.2903 OF 2012 Dated 5-8-2014 Between:
Manoranjan Bhanja and others.
..Petitioners.
And:
Rajiv Trivedi and another.
..Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL PETITION No.2903 OF 2012 ORDER:
This petition is filed to quash proceedings in C.C.No.215 of 2012 on the file of III Additional Chief Metropolitan Magistrate, Hyderabad.
Petitioners herein are A.1 to A.5 in the above referred C.C. and first respondent herein is the complainant.
Brief facts leading to this quash petition are as follows:
First respondent is a Senior Police Officer and he was residing in ground floor apartment bearing number BH 4/2 in the Government Officers colony at road No.10 Banjara Hills vide proceedings dated 23-8- 2005. By the date of occupation of the quarter, there was an additional room attached to the said quarter, and on joint application made by all the residents of block No.4 sanction was given for providing a lift to the apartments in the campus and in the first week of October, 2008, Executive Engineer, R & B and his subordinates informed the complainant that the additional room in the said quarter would be demolished to erect the lift, for which, the complainant opposed and there were some differences among the other residents of the complex and the complainant and the petitioners herein submitted a complaint to the Chief Secretary of A.P. on 27-10-2008 and prior to that, A.2 and A.4 i.e., petitioners 2 and 4 herein submitted signed complaint to the Director General of Police on 30-9-2008 and according to the complainant, those allegations are false and baseless and one of the accused brought Times of India Correspondent to the complex and got published news items which lowered down the image of complainant among his friends and relatives and the petitioners have committed offence of defamation, for which, a private complaint is filed before the III Additional Chief Metropolitan Magistrate, Hyderabad and after recording Sworn Statement of complainant and two witnesses, besides marking 32 documents, cognizance was taken against the petitioners for the offences under Sections 499 and 500 I.P.C. Challenging the same, present quash petition is filed.
Heard both sides.
Learned Senior Advocate Sri T.Niranjan Reddy submitted that petitioners are nothing to do with the publication in the Times of India. He further submitted that petitioners are innocent and the allegations levelled against them even if taken at their face value do not disclose any offence of defamation. He further submitted that there is nothing in the representation given to the Director General of Police or Chief Secretary containing any defamatory remarks against the complainant. He further submitted that petitioners have only ventilated their problems and grievances to the Government and requested intervention of Director General of Police and Chief Secretary because of the bare necessity of lift to the inmates of Block No.4. He further submitted that subsequently, Government has set up a high level committee with three secretaries to the Government and on the basis of High Level Committee report, Chief Minister passed orders for erecting lift and orders were issued, on that, the complainant filed Writ Petition No.29188 of 2008 and this court in its order dated 1-6-2010 observed that complainant is only a temporary occupant of Government flat and he has no legal right and observed that complainant has wasted precious time of the court. He further submitted that news items referred in the complaint are in respect of solar fencing erected to the quarter of the complainant and passing remarks are made in those news items about representation given by the other inmates to the Government but there are no defamatory remarks against the complainant. He further submitted that the petitioners submitted representation to the Government and Director General of Police who are lawful authorities over the complainant and those representations per se cannot be termed as defamatory. He further submitted that lift was installed after demolishing bed room in the month of November, 2011 and respondent-complainant is not in the said quarters, but filed the complaint in March, 2012 only to harass the petitioners and therefore, the complaint is vexatious. He further submitted that to attract offence under Section 499 or 500 I.P.C., there must be imputation affecting the reputation of the complainant but here the Government after considering the correctness of the allegation, issued memo to the complainant and therefore, under exception 8 to Section 499 I.P.C., petitioners are protected. He further submitted when there is action on the part of the Government on the representation of the petitioners, the allegations made therein have to be treated that they are made in good faith and to attract offences of Sections 499 and 500 I.P.C., there must be clear material showing the intention of the petitioners was to harm the reputation of the person against whom such representation is given. He further submitted that there are no abusive words of any kind in the representation and therefore, making complaint without any material attracting offences of defamation would amount to abuse of process of court.
On the other hand, advocate for first respondent submitted that in the representation to the Director General of Police and Chief Secretary, it is averred that the complainant illegally obstructed for erecting lift and this word ‘illegal obstruction’ is a defamatory word which caused great humiliation to the complainant. He further submitted that there is no G.H.M.C. approval for these buildings and without giving notice to the complainant going ahead with demolition of additional room was only objected. He further submitted that on the representation of the petitioners, Director General of Police issued a memo to the complainant and giving such memo also caused great humiliation to the complainant. He further submitted that whether the allegations would amount to defamation or not is a matter of evidence and it has to be decided only during trial. He further submitted that exception pleaded by the petitioners is not a ground for quashing and it is only a defence available to the petitioners.
He further submitted that the reporter of Times of India who is cited as L.W.6 informed the complainant that he was brought by the accused and news items were published only at the instance of petitioners and by reading this news item, many friends and relatives of the complainant telephoned to the complainant and enquired about the remarks passed against the complainant that has lowered down the reputation of the complainant in the eye of his friends and relatives. He further submitted that complainant is a Senior Police Officer with many achievements and lower downing reputation of such reputed officer is a clear act of defamation. He further submitted that the complainant has no grievance against the press because the news items were published only at the instance of petitioners and for that reason, he has not made the paper as an accused. He further submitted that intention of the petitioners has to be gathered from the evidence and when the complainant stated that the acts of the petitioners caused agony and humiliation, these aspects have to be tried and therefore, the complaint cannot be quashed.
Now, the point that would arise for my consideration in this petition is that whether the proceedings in C.C.No.215 of 2012 can be quashed or not.
POINT:
The petitioners herein and first respondent herein are of Senior I.A.S., I.P.S and I.F.S. Officers of the State Government. Admittedly, all of them were residents of officers quarters at road No.10, Banjara Hills, Hyderabad at relevant point of time. It is also not in dispute that those quarters are Government quarters and Government is the owner of those buildings. For a small dispute with regard to erection of lift, to one of the quarter, made these officers to approach courts.
The main grievance of the complainant is that the representation given by these petitioners to the Chief Secretary and Director General of Police caused humiliation and defamed him in the society.
The representation addressed to the Chief Secretary is dated 27-10-2008 and prior to that the same representation was given to the Director General of Police by the very same petitioners. Both the representations are signed petitions and on the representation given to the Chief Secretary, the endorsement of the Chief Secretary on this representation is as follows:
“The officers met me. This is a serious matter. We may ask D.G.P. to take action against the I.P.S. Officer. We may move file to C.S./CM. for disciplinary action against the officer. We may ask E.O. to issue eviction notice to the officer as per rules. Let E.O. examine Act provision.”
The other contention of the complainant is that this incident was published in the news papers and on account of that many of his friends and relatives telephoned him and thereby, his reputation was lowered down.
The first news item is dated 3-11-2008 of Times of India, Hyderabad with the caption of “Top cop safe, neighbours at risk”. This entire news item is with reference to Solar fencing erected around the quarter of this complainant. The only mention about the lift in this news item is as follows:
“The Inspector-general of police also allegedly occupied a room behind the building where there is a provision for lift but the officer is said to be refusing to vacate the room. The state government sanctioned a lift to the building six months ago as the officers and their families residing in the second and third floor were finding it very difficult to climb up and down the stairs. Since Trivedi is refusing to vacate the room, which is not part of his quarters, the lift has not been installed.”
Second news item dated 12-11-2008 is under the caption “Lifted by filial love, cop refuses to climb down” “what about inconvenience to our aged parents neighbours”.
In this news item also, there is no reference to the role of these petitioners. It is a general statement made in this news item about the inconvenience faced by the inmates of the complex referring them as neighbours.
The entire episode is in respect of not allowing R&B authorities for demolition of additional room to erect lift. This complainant approached this court by way of a writ and this court observed that “precious time of the court is consumed to resolve the question whether a lift should be installed in front or at its rare portion of the fourth bed room of the flat allotted to complainant.” In that writ, this court made the following observation with regard to the role of the complainant in the said episode.
“ “Public Servants”, as the words imply, are those who hold offices under the State to serve the public at large. The no holds barred squabble in full public gaze by such officers, for retention/demolition of an extra-bedroom in the government residential quarters allotted to one of them or to continue to retain occupation of the government quarters without payment of arrears of rent due from them to the public exchequer, does not augur well for the bureaucracy and is yet another indicator of a rapid fall in the high ethical standards which public servants were hitherto known to maintain.
While he was working as the Additional Director of the Andhra Pradesh Police Academy, the petitioner was allotted Flat No.2 at block No.4, Government Officers Flats, Road No.10, Banjara Hills, Hyderabad, vide G.O.Ms.No.385 dated 23-8- 2005, for his residence. He occupied the flat in January, 2006. While the other flats in the said block have three bedrooms, the ground floor flat allotted to the petitioner has a fourth bed-room constructed by the R&B department pursuant to G.O.Rt.No.877 dated 07.10.2004. Like other blocks in the premises, block No.4 is a ground plus three (G+3) floors building and houses seven residential flats-one on the ground floor and two each in the first, second and third floors. While the petitioner wants to have the lift installed at the front of the block and thereby retain the extra bed room, the other officers, arrayed against him in this unseemly battle, seek to have the fourth bed room, in the ground floor flat, demolished and a lift installed thereat i.e., at the rear of the block.
What is of ever greater concern is that precious time of the court is sought to be consumed in resolution of the question whether a lift should be installed in front of the block or at its rear i.e., where the fourth bed room of the ground floor flat, allotted to the petitioner, is located. The petitioner, a temporary occupant of government flat, has no legal right either to retain the fourth bed room or to insist that the government, which owns these buildings should install a lift only in front of the block and not at its rear. Ordinarily, this court would have refused to entertain such writ petitions as a writ of mandamus is not a writ of course or a writ of right but is, as a rule, discretionary; there must be a judicially enforceable right for the enforcement of which a mandamus will lie; the legal right to enforce the performance of a duty must be in the applicant himself and, in general, the Court would only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance.”
This court further observed which is as follows:
“On the question whether or not demolition of the fourth bed room, of the ground floor flat in block no.4, is necessary for installation of a lift thereat, or such demolition is desirable to provide uniform facilities of three-bed rooms in each flat of the block, this Court would defer to the wisdom of the Executive. Suffice it to hold that the expenditure involved in demolition of the fourth bed room in the ground floor flat of block no.4, and for installation of a lift thereat, is not of such a magnitude as to render the administrative decision “so outrageous” as to be in total defiance of logic.”
From the above observation, it is clear that complainant has no legal right over the quarter in his occupation and installation of lift or demolition of any room is the prerogative of executive.
According to advocate for respondent- complainant, word “illegal obstruction” used in the representation has caused humiliation to the complainant and that itself is per se defamation. Now, when this court, in the writ filed by the complainant held that the complainant has no legal right over the quarter in his occupation, if any act obstructing the owner of the building namely government has to be termed as “illegal obstruction” only. If the complainant has legal right, and obstructed, if somebody calls it as illegal obstruction, there may be some force in the submission of the advocate for complainant but when complainant has no legal right, the very obstruction or objection has to be called only as ‘illegal’ and therefore, that cannot be treated as imputation attracting defamatory act.
One of the contentions of the complainant is that these petitioners have brought the correspondent of the paper and intentionally got published these two news items. There is no supporting material to these allegations. No doubt, reporter of the Times of India, Hyderabad, above is cited as a witness showing him as L.W.6. According to the complainant, that the said reporter informed him that he had written the news items as he was absolutely sure that statements made by the accused were true and as they were senior officers and they had termed the action of the complainant as illegal. It is also averred in the complaint that the said reporter informed the complainant that A.2 and A.4 had arranged to contact the reporter through his senior in a bid to circulate their allegations, and A.2 provided necessary gunman for this reporter to come into the colony and take photos. Though complainant examined two witnesses along with him at the time of taking cognizance, this reporter is not produced nor his affidavit is filed. (Reporter is shown as L.W.6 in list of witnesses but he was referred as L.W.5 in the body of complaint.) The only averment in the complaint is that the said reporter informed him which version is not at all supported by any material. Even in the news item, there is no mention that the reporter came to know about this episode through all the petitioners or any one of them. On the other hand, second news item refers to inconvenience to the aged parents of the inmates and neighbours which gives a meaning that reporter got this news from the inmates of the complex.
I n S.KHUSHBOO Vs. KANNIAMMAL AND
[1]
ANOTHER ( ), three judges of Honourable Supreme
Court held as follows:
“Offence” means “an act or instance of offending”, “commit an illegal act” and “illegal” means, “contrary to or forbidden by law”. “Offence” has to be read and understood in the context as it has been prescribed under the provisions of Sections 40, 41 and 42 IPC which cover the offences punishable under IPC or under special or local law or as defined under Section 2(n) CrPC or Section 3(38) of the General Clauses Act, 1897.”
In the above decision Hon’ble Supreme Court interpreted the word offence according to which “Act either illegal or forbidden by law has to be understood as offence”. Here the allegation against the petitioners is that they made a representation to the Chief Secretary and Director General of Police, that caused humiliation to the complainant. It is not in dispute that giving representation to the authorities is not forbidden by law, on the other hand, it is a fundamental right. Here forget for a moment that the petitioners are officers or junior officers to the complainant. If the petitioners submitted such a representation as citizens to the authorities concerned, and in turn the competent authority considered the representation and issued any official memo, can it be called as forbidden under law or illegal act. The answer should be certainly not. Further can the representation given to Chief Secretary and Director General of Police be treated as defamatory simply because it caused humiliation to the complainant. In my view, such representation can be treated as malicious or amount to imputation if the authority finally found that allegations made in the representation are baseless, vexatious or mala fide in nature. Here, the concerned authority having satisfied with the allegations in the representation issued Official Memo to the complainant and it is not known what happened latter. If the competent authority on considering the reply of the complainant to the said memo found that the allegations made in the representation are frivolous, baseless or false, then definitely, the act of the petitioners in giving such a baseless, frivolous and false complaint would attract the term offence.
Government servants staying together in one complex is just like a train journey. Different persons with different destinations travel together for some time in a train but ultimately, each will get down at his or her station, but during that short stay, they shall co-operate with each other and take care of convenience of others and then only, even that short journey will be smooth and memorable. Like train journey, government servants staying in a complex will be for a short time, may be for a period of three years at one stretch or in some exceptional cases, something more but it is not a permanent stay. Normally, in complexes, persons with different ideas, with different religions and with different cultures etc., stay together and some times, there may be inconvenience to some of the residents, but that should be taken in a positive sense with adjustable nature. Such inconvenience shall be ventilated only when it has become unbearable. Further, when behaviour of a single person is detrimental to a larger group, living in a complex like group quarter such individual shall adjust himself or herself or if he or she is not able to adjust, better to leave such place and not to become an issue to all other residents. Here, the entire reading of the representation given to Chief Secretary and Director General of Police show that the residents of that particular complex are disturbed with the behavioural attitude of the complainant. So, at no stretch of imagination, the representation gives against the complainant can be treated as illegal or forbidden by law.
In RAJENDRA KUMAR SITARAM PANDE AND
[2]
OTHERS VS.UTTAM AND ANOTHER ( )
Honourable Supreme Court held when exception 8 to section 499 I.P.C. is attracted, the issuance of process and proceedings are liable to be quashed.
In answer to this, advocate for first respondent submitted that exception of good faith is a matter of evidence which is a defence available to the accused and it cannot be taken as a ground to quash the proceedings. To support his argument, he placed reliance on the judgment of Supreme Court in JEFFREY J.DIERMEIER AND ANOTHER VS. STATE
[3]
OF WEST BENGAL AND ANOTHER ( ).
In the case relied on by the first respondent, Honourable Supreme Court held that defence of good faith is a matter of evidence as to the fact and circumstances of that case. But here in this case, the facts squarely fall with the facts of RAJENDRA KUMAR SITARAM PANDE case 2nd cited because, petitioners have given representation to the competent authority having not satisfied with the objection of the first respondent in demolishing bed room for erecting a lift.
I n CHILLAKUR VENUGOPAL REDDY AND OTHERS Vs. KOTA REDDY SYAMASUNDARA
[4]
REDDY AND ANOTHER ( ), this court held that
intention on the part of accused to harm reputation of person concerned, is an essential ingredient of offence, and no offence is committed, where no such intention exists.
In this case, the representation given by petitioners to D.G.P. and Chief Secretary do not contain any imputations, using word illegal obstruction in the representation cannot be treated as groundless or with malafide intention, there is no material to show that petitioners are responsible for the news items and the complainant has no legal right to object for demolition of room or erecting lift, therefore, the complaint allegations even if they are taken as their face value no offence is made out and continuation of such complaint would amount of abuse of process of court. Therefore, relying on the principles laid down by Supreme Court in the above referred decisions, I am of the view that this is a fit case to exercise powers under Section 482 Cr.P.C.
For these reasons, this Criminal Petition is allowed quashing the proceedings in C.C.No.215 of 2012 on the file of III Additional Chief Metropolitan Magistrate, Hyderabad.
As a sequel to the disposal of this Criminal petition, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 5-8-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL PETITION No.2903 OF 2012 Dated 5-8-2014 Dvs
[1] (2010) 5 SCC 600
[2] (1999) 3 SCC 134
[3] 2010 (6) SCC 243
[4] 2009 (2) ALD (Crl.) 344 (AP)