HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition Nos.805 and 864 of 2014 Date: 11-11-2014 Crl.P.No.805 of 2014:
Between Mr. Paul Sellers and 3 others and … Petitioners/ Accused 1 to 4 The State of A.P., Rep. by its Public Prosecutor, High Court of A.P., Hyderabad … Respondent Ajay Merchant … Respondent/
De facto Complainant
Crl.P.No.864 of 2014:
Between Mr. Paul Sellers and 4 others and … Petitioners/ Accused 1 to 4 and 6 The State of A.P., Rep. by its Public Prosecutor, High Court of A.P., Hyderabad … Respondent Ajay Merchant … Respondent/
De facto Complainant HON’BLE Dr. JUSTICE K.G.SHANKAR
Criminal Petition Nos.805 and 864 of 2014 Common Order:
These two criminal petitions are disposed of through this common order. One Ajay Merchant lodged a complaint with the Additional Chief Metropolitan Magistrate, City Criminal Courts at Nampally, Hyderabad against 7 persons alleging that the accused committed offences under Sections 420, 406, 409, 465 and 469 read with Section 120-B, IPC. The learned Additional Chief Metropolitan Magistrate referred the same to Police under Section 156(3) Cr.P.C. Police registered the complaint as First Information Report (FIR) in Crime No.467 of 2013. Accused 1 to 4 and 6 in the complaint filed Criminal Petition No.864 of 2014 seeking for the quashment of the FIR. Ajay Merchant is arrayed as the 2nd respondent.
2. Ajay Merchant lodged another complaint before the same Court against 4 persons for the offence under Section 500 read with Section 120-B, IPC. The learned Magistrate has taken cognizance of the complaint which was registered as C.C.No.830 of 2013. The 4 accused filed Crl.P.No.805 of 2014 seeking for the quashment of C.C.No.830 of 2013 on the file of the Additional Chief Metropolitan Magistrate, City Criminal Courts at Nampally, Hyderabad. Ajay Merchant is arrayed as the 2nd respondent in this petition. T h e de facto complainant in both the complaints is one and the same. I therefore consider it appropriate to refer him as the 2nd respondent hereinafter. The petitioners in Crl.P.No.805 of 2014, who are accused 1 to 4 in C.C.No.830 of 2013, are accused 1 to 4 in the FIR in Crime No.467 of 2013. While the 4 accused in C.C.No.830 of 2013 filed Crl.P.No.805 of 2014, accused 1 to 4 as well as accused No.6 in Crime No.467 of 2013 filed Crl.P.No.864 of 2014. I therefore propose to refer the petitioners as they are arrayed in Crl.P.No.864 of 2014 as accused 1 to 4 and 6. Be it noted that accused No.5 in Crime No.467 of 2013 is not in India.
3. The 2nd respondent was the Manager of the British Library, Hyderabad. The British Library is run by Indian Council of Cultural Relations (ICCR). The British Council is said to be an International Organization established by the United Kingdom for educational opportunities and cultural relations. The Queen of England is said to be the Patron whereas the Prince of Wales is said to be the Vice Patron of the British Council.
4. The 1st accused has been working as the Director (South India), British Council, Chennai. The 2nd accused has been working as the Head of English and Exams Marketing. The 3rd accused is the Manager in charge of the British Library at Hyderabad. The 4th accused is the Head of Resources, British Council, Chennai.
The 2nd respondent lodged a complaint against them alleging that the accused cheated him and resorted to criminal breach of trust and forgery through conspiracy. As already noticed, the complaint lodged by the 2nd respondent against accused 1 to 4 as well as 2 others was referred by the learned Magistrate to Police under Section 156(3) Cr.P.C and was registered as FIR in Crime No.467 of 2013. Another complaint was lodged by the 2nd respondent against accused 1 to 4 for the offence under Section 500 read with Section 120-B, IPC.
The same was taken cognizance of by the Court and was registered as C.C.No.830 of 2013. Seeking for the quashment of both of them, the present petitions are laid.
5. It is the case of the 2nd respondent that the accused made imputations damaging the reputation of the 2nd respondent claiming that the 2nd respondent (a) made inappropriate comments against a staff member containing sexual orientations, (b) inappropriate personal reference about members of the staff, (c) commented about the apparel of female colleagues and (d) used abusive and sarcastic language against the female staff members. The 2nd respondent contended that he felt ashamed to face an enquiry, which was not supported by any sort of material on record tarnishing his personal image. He further submitted that the complaint, allegations and enquiry were aimed at defaming the 2nd respondent. He consequently seeks the prosecution of accused 1 to 4 for the offence under Section 500 IPC. Apart from contending that the Trial Court took cognizance of the case under Section 500 IPC without following the procedure contemplated by Section 202 Cr.P.C., the accused contended that assuming that the contentions of the 2nd respondent were true, the accused were protected by Section 499, exception VII and exception VIII, IPC. Section 499, exception VIII, IPC reads:
“VIII exception.-- It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.”
6. Sri R.Basant, learned Senior Counsel representing the accused, submitted that assuming that the contention of the 2nd respondent that the imputations were defamatory is accepted, the accused are protected by Section 499, VIII exception IPC.
7. Sri O.Kailasnath Reddy, learned counsel for the 2nd respondent, on the other hand, submitted that accused 2 to 5 conspired and generated E-mails and created fictitious incidents that the 2nd respondent misbehaved with co-employees. He further submitted that preliminary enquiry and regular enquiry were conducted behind the back of the 2nd respondent keeping him under suspension. He submitted that in view of State of Haryana v. Bhajan Lal, if the allegations do not constitute an offence even on a plain reading of the complaint, the complaint deserves to be quashed.
He claimed that a prima facie case is made out against the accused and that it is not a fit stage to stop the trial.
8. In Rajendra Kumar Sitaram Pande v. Uttam, the Supreme Court considered Section 499 exception VIII, IPC. In that case, the accused lodged a report against the complainant to the Treasury Officer that the complainant went to the office in a drunken state and abused the officer and the staff in filthy language.
The learned Magistrate directed the Treasury Officer to conduct an enquiry and submit a report. The Treasury Officer conducted enquiry and submitted a report that the complainant was guilty. The Court considered that it was a case falling under Section 499 exception VIII, IPC and that it was not a case of defamation.
9. It may be noticed that in the cited case, a preliminary enquiry found the complainant guilty.
In the present case also, not only in a preliminary enquiry, in the final enquiry also, the 2nd respondent was found guilty. In fact, the 2nd respondent was subsequently dismissed from service. Where the enquiry itself found the 2nd respondent guilty of the allegations levelled against him, whether the enquiry was conducted ex parte or otherwise, I am afraid that no case can be made out against the accused prima facie for the offence under Section 499 IPC.
10. If lodging a complaint, or holding an enquiry or issuing a charge-sheet is tantamount to defamation, the whole edifice of Service Law crumbles. It is not as though the allegations were published by the accused to constitute the offence under Section 500 IPC.
The learned counsel for the 2nd respondent submitted that the imputations through the charge-sheet were published in the Notice Board which was tantamount to publication. When the 2nd respondent could not be served with notice and the charge-sheet, placing the same in the Notice Board cannot be deemed to be a publication within the meaning of Section 499 IPC.
At any rate, merely because an allegation is made against an employee by the employer and an enquiry was initiated against the employee, it cannot be considered to be defamation. If such a conduct on the part of the employer is to be treated as defamation, the very institution cannot function.
11. However, I do not find any publication of the imputation by any of the accused nor do I find the imputations to be defamatory within the meaning of Section 499 IPC in view of exception VIII to Section 499 IPC. I therefore consider that no case is made out against accused 1 to 4 for the offence under Section 500 IPC. The charge-sheet in C.C.No.830 of 2013 against the accused 1 to 4 for the offence under Section 500 read with Section 120-B, IPC therefore is liable to be quashed. Consequently, Criminal Petition No.805 of 2014 deserves to be allowed.
12. So far as the allegations relate to Crime No.467 of 2013 are concerned, it is the case of the 2nd respondent that deliberately, the enquiry was conducted behind the back of the 2nd respondent and that the 4th accused in fact has no authority to conduct any enquiry. Inter alia, the learned counsel for the 2nd respondent submitted that the British Council disciplinary procedure envisaged that when an employee is appointed by the United Kingdom, suspension can be effected by the Head Employment and Reward.
He further submitted that accused 1 to 4 deliberately subjected the 2nd respondent to departmental enquiry and found him guilty. It is further submitted that the accused did not pay the salary of the 2nd respondent during the period of suspension despite direction from this Court through orders in Writ Petition No.21302 of 2012 and that the same would constitute a criminal breach of trust.
13. I do not consider that non-payment of salary
per se can be treated as a criminal breach of trust. However, it is
contended by the learned counsel for the 2nd respondent that the non-payment of the salary during the period of suspension was deliberate and was aimed to cause inconvenience to the 2nd respondent. As rightly submitted by the learned counsel for the 2nd respondent, in the light of such allegations, the allegation becomes a question of fact which can be considered by the Police at the time of the investigation. It would not be appropriate to consider the same in a petition under Section 482 Cr.P.C.
14. It is also contended by the learned counsel for the 2nd respondent that all the accused have conspired to cheat the 2nd respondent, cause criminal breach of trust and resort to forgery through a conspiracy and that the accused consequently are liable for punishment.
The allegations in the complaint are series of imputations against accused 1 to 4 and 6 as well as against the 5th accused (who is not a party to this lis). The nature of the allegations cannot be treated as improbable and absurd. I consider that it would be appropriate for Police to continue the investigation and decide whether the allegations levelled against the accused are sustainable or otherwise. Thus, on merits, I do not consider that this petition deserves to be allowed.
15. Apart from considering the case on merits, the learned Senior Counsel for the accused raised two other contentions viz., that the accused enjoyed diplomatic immunity and that the reference of the case by the learned Magistrate under Section 156(3) Cr.P.C is unjust, improper and is not sustainable. It is contended by the learned Senior Counsel for the accused that the British Council has diplomatic status and that accused 1 to 5 are diplomatic agents under the Vienna Convention and Diplomatic Relations, 1961. The Diplomatic Relations (Vienna Convention) Act, 1972 (Vienna Convention Act, for short) was enacted in consonance with the Vienna Convention Protocol. The learned Senior Counsel for the accused referred to Article 31 of the Schedule of the Vienna Convention Act. Para 1 of Article 31 exempts a diplomatic agent from the criminal jurisdiction of the country in which the diplomatic agent has been working. Article 1(e) defines a diplomatic agent as the head of the mission or a member of the diplomatic staff of the mission. It is not clear whether the 1st accused is a diplomatic agent within the meaning of Article 1(e) of the Vienna Convention Act read with Article 31 of the Vienna Convention Act. It may not be appropriate at this stage to go into the question about the diplomatic immunity.
16. In the event Police find prima facie case against accused 1 and 5 and lays charge-sheet against them, the question of diplomatic immunity can be considered. Suffice it to notice at this stage that albeit the accused raised the question of diplomatic immunity, the same is raised so far as the 1st accused alone is concerned, since the 5th accused is not a party to Crl.P.No.864 of 2014.
It is also necessary to notice that the 1st petitioner/ accused No.1 has not filed any proof that he is the diplomatic agent within the meaning of Article 1(e) of the Vienna Convention Act at this stage. I therefore do not consider the defence of diplomatic immunity at this stage.
17. It is also contended by the accused that reference of the case under Section 156(3) Cr.P.C by the learned Magistrate is not justified as the learned Magistrate did not apply his mind while referring the case under Section 156(3) Cr.P.C.
18. In D.K. Pattanaik v. SHO, Nallabelly Mandal, Warangal, a complaint was forwarded by the Magistrate to Police for investigation, although the Magistrate did not have territorial jurisdiction. The Court held that as the Magistrate did not have competence to take cognizance of the case owing to absence of territorial jurisdiction, the Magistrate ought to have returned the complaint for presentation before proper Court.
A learned Single Judge of this Court consequently quashed the FIR. In the present case, it is not as though the Additional Chief Metropolitan Magistrate, Hyderabad did not have territorial jurisdiction to entertain the complaint. Consequently, this decision relied upon by the learned Senior Counsel for the accused has no application for the present case.
19. In PEPSI FOODS LTD. v. SPECIAL JUDICIAL MAGISTRATE, it was noticed thus:
“28. Summoning of an accused in a criminal case is a serious matter, Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused.
It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”
20. The Court took the view that the order of the learned Magistrate summoning the accused must reflect that the learned Magistrate has applied his mind to the facts of the case. In the present case, the learned Magistrate did not summon the accused but has referred the case to Police under Section 156(3) Cr.P.C. Therefore, the embargo that the order should show that the Magistrate has applied his mind while referring the case to the Police cannot be read from this decision.
21. In SHIVJEE SINGH v. NAGENDRA TIWARY, it was noticed that Section 202(1) Cr.P.C empowers a Magistrate to postpone issuance of process against the accused and either enquire into the case himself or direct an investigation to be made by Police Officer.
It was further pointed out that after the amendment through Act XXV of 2005, the postponement of the issue of process has become mandatory when the accused is residing in an area beyond the territorial jurisdiction of the Magistrate. I may repeat that the learned Magistrate did not issue summonses to the accused after the filing of the complaint by the 2nd respondent but has referred the case to Police under Section 156(3) Cr.P.C.
The amendment through Act XXV of 2005 to Section 202 Cr.P.C therefore is not relevant. Similar view taken in NATIONAL BANK OF OMAN v. BARAKARA ABDUL AZIZ also has no application for the same reason.
22. Again, in UDAI SHANKAR AWASTHI v. STATE OF UTTAR PRADESH, the amendment of Cr.P.C through Act XXV of 2005 was referred to making it mandatory to postpone the issue of process where the accused has been residing beyond the territorial jurisdiction of the Magistrate concerned. Barring for the 3rd accused, rest of them are not residents of Hyderabad/Secunderabad and thus are beyond the territorial jurisdiction of the Court. However, had the Magistrate invoked the procedure envisaged by Section 202 Cr.P.C., the question of postponing the process and proceeding with the enquiry would have come into play. Where the learned Magistrate did not issue any process to the accused, Section 202 Cr.P.C does not apply to the case of the accused.
23. In ANIL KUMAR v. M.K. AIYAPPA, it was noticed by the Court:
“11. … … … After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation.”
24. The Supreme Court thus has taken the view that the order of the Magistrate under Section 156(3) Cr.P.C should reflect what weighed in the mind of the learned Magistrate in ordering investigation under Section 156(3) Cr.P.C. It may be noticed that in the State of Andhra Pradesh, the practice is not to express any view while referring a case under Section 156(3) Cr.P.C to Police by the Magistrate. Further, ANIL KUMAR (8 supra) was pronounced on 01-10-2013 whereas, the reference in the present case under Section 156(3) Cr.P.C was prior to 28-8-2013 as the very FIR was registered on 28-8-2013. Viewed in any angle, I consider that where the reference was prior to ANIL KUMAR (8 supra), there was justification on the part of the Court in not expressing its view while referring the case under Section 156(3) Cr.P.C. Thus, the defence of the accused that the reference by the learned Magistrate under Section 156(3) Cr.P.C is not sustainable cannot be accepted.
25. The contentions raised by the accused that prima facie case is not made out against them, that accused 1 to 5 are covered by diplomatic immunity and that the reference of the case under Section 156(3) Cr.P.C by the Magistrate is bad, consequently are not sustainable. I therefore see no merits in Crl.P.No.864 of 2014.
26. Accordingly, Crl.P.No.805 of 2014 is allowed. C.C.No.830 of 2013 on the file of the Additional Chief Metropolitan Magistrate, City Criminal Courts at Nampally, Hyderabad is hereby quashed. Crl.P.No.864 of 2014 is dismissed. Police are at liberty to proceed with the investigation of FIR in Crime No.467 of 2013 on the file of Saifabad Police Station, Hyderabad. However, in view of the fact that the petitioners/accused claimed diplomatic immunity and also where the contention of the accused is that the very reference under Section 156(3) Cr.P.C is bad, it would be appropriate to direct Police not to arrest the accused during the pendency of the investigation. Accordingly, Police are directed not to arrest the accused 1 to 4 and 6 during the pendency of investigation while they are at liberty to proceed with the investigation of FIR in Crime No.467 of 2013. The miscellaneous petitions, if any, pending in these petitions shall stand closed.
Dr. K.G.SHANKAR, J.
11th November, 2014. Ak HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition Nos.805 and 864 of 2014 (Common Order) (Ak) 11th November, 2014.