1) By this application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”), the applicant-original accused seeks quashing of the complaint being Criminal Case No.4394 of 2011, pending in the Court of the learned Additional Chief Judicial Magistrate, Jamnagar.
2) The second respondent-Pallaviben Vanraj Mehta lodged the above referred complaint in the Court of the learned Chief Judicial Magistrate, Jamnagar alleging commission of the offence punishable under section 500 of the Indian Penal Code. The allegations made in the complaint are to the effect that she was holding high reputation in the society and that the accused was her brother-in-law (her husband's younger brother) who was not gainfully employed. It is alleged in the complaint that the complainant’s husband, deceased Vanrajbhai Mehta was holding immovable properties like agricultural land as well as shops and houses and other movable articles. That with a view to grab all the articles and immovable properties as well as to tarnish her reputation and prestige in the society, the accused time and again was getting notices published in the newspapers. That the accused with a view to damage her reputation and prestige in society, had issued a public warning/notice in the Aaj-Kal newspaper dated 8.5.2008, the contents of which were totally false and far from the truth, and that upon considering the case papers and the record of the court, it is clearly established that the accused with the sole intention of damaging her reputation and lowering her prestige in the society, had published the notice. The accused were aware of the details of the cases which are described in the said writing, despite which they had intentionally had published insulting and defamatory things in the daily newspaper and published the same.
3) It is further alleged that in the aforesaid public warning/notice it has been published that , that a false certificate has been obtained by concealing the names of the true heirs of deceased Vanrajbhai Mehta in the Jamnagar Court and after obtaining the succession certificate through fraud which succession certificate is in respect of shops and the land bearing Revenue Survey No.197, the said certificate has been cancelled by the court on 12.7.2007 and it has been held that the complainant- Pallaviben Vanrajbhai Mehta had obtained the succession certificate by fraud and misrepresentation.
It is further stated that though according to the declaration in the above referred notice, as per the order of the Court, the succession certificate had been obtained by fraud and misrepresentation, but in actual fact in the order passed in Civil Miscellaneous Application No.49-50 of 2001, no such finding has been made by the court and that on the contrary it has been written that “in my view, even if, no fraud was committed by the present opponent”. Thus the court has not arrived at any finding that there was fraud and that it was only with a view to defame her in the society and to lower her prestige that intentionally, false statement has been made in the notice. Various other allegations are made mentioning facts regarding litigations between the parties. However, the main allegation is to the effect that by publishing the notice dated 8.5.2008, the accused had tried to lower the prestige and reputation of the complainant in the society with a view to defame her.
4) Mr. Premal S. Rachh, learned advocate for the applicant invited the attention of the court to the allegations made in the compliant to submit that the main allegation is to the effect that the public notice given by the applicant herein states incorrect facts with a view to lower the prestige of the complainant and to defame her. The attention of the court was invited to the judgment and order dated 12.7.2007 made by the learned 5th Additional Senior Civil Judge, Jamnagar in Civil Miscellaneous Application No.49 of 2001 to point out that the court had recorded findings to the effect that for the opponent to say that the grant was being opposed by “nobody” was misleading. The grant was obtained by concealing from the court which was very material to the case. It was pointed out that the court has framed a specific issue as to whether the applicant therein had proved that the respondent, that is, the complainant had obtained the succession certificate through fraud and that the finding on the said issue was in the affirmative. Attention was also invited to the findings recorded in paragraph 24 of the said judgment to point out that the court had observed that in the view of the court, even if, no fraud was committed by the opponent therein (the complainant herein) but once it is established that even on the basis of the particulars supplied by the opponent for grant of succession certificate, it was imperative on the part of the court to issue citation upon the legal heirs as the property of the deceased devolved upon the heirs in case of intestate succession. It was submitted that the above referred quotation “even if no fraud was committed by the present opponent” is being read out of context by the complainant and that the court has not given any finding to the effect that no fraud was committed, but on the contrary had recorded that the certificate had been obtained by concealing from the court something which was very material to the case and that the issue as regards obtaining the certificate by fraud had been answered in the affirmative. Under the circumstances, no false statement was made in the public notice as alleged.
4.1) Inviting attention to the section 499 IPC which defines “defamation”, it was pointed out that the present case falls within the exceptions enumerated thereunder, more particularly the first, fourth, fifth and ninth exception. Inviting attention to the orders passed by courts in various proceedings between the applicant and the second respondent, it was pointed out that the courts have recorded categorical findings of fact to the effect that the complainant had not proved that she was married to deceased Vanrajbhai Mehta. It was submitted that under the circumstances, the say of the complainant that she was the sister-in- law of the present applicant is evidently false. It was submitted that the complainant had been attempting to sell the ancestral property of the applicant and other co-owners of the said land and that the present notice had been published with a view to put the public on guard not to deal with the complainant. Referring to the first exception to section 499, it was pointed out that it is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact. It was submitted that in the present case, the public notice had been issued to make the public aware and put them to guard not to deal with the complainant, which squarely falls within the ambit of the first exception to section 499 IPC. Referring to the fourth exception, it was pointed out that it is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings. It was submitted that in the present case, the applicant herein has only published a substantially true report of the proceedings of a Court of Justice and, as such, the present case also falls within the ambit of the fourth exception to section 499 IPC. Similarly, the fifth exception would also be attracted in the present case. Referring to the ninth exception to section 499 IPC, which provides that it is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good, it was submitted that the complainant herein was constantly attempting to sell the property belonging to the applicant and other co-owners and that the imputation made in the public notice was made in good faith to protect the interest of the applicant and others. It was submitted that under the circumstances, the present case squarely falls within four of the exceptions carved out under section 499 of the Indian Penal Code and, as such, no offence under section 500 can be said to have been made out in the facts of the present case.
5) Despite service of rule, there is no appearance on behalf of the respondent No.2-complainant. This court has heard the learned Additional Public Prosecutor appearing on behalf of the respondent No.1 State of Gujarat, who submitted that at this stage, when only process has been issued to the applicant, no case is made out for exercise of powers under section 482 of the Code.
6) From the facts and contentions noted hereinabove, it is apparent that the allegations as regard commission of the offence under section 500 IPC are to the effect that the applicant herein had published a public notice, wherein it had been stated that the succession certificate obtained by the complainant had been obtained by fraud and that the said order had been set aside by the court vide order dated 12.7.2007. It is the case of the complainant that the public notice does not give a true representation of the contents of the order passed by the court and that the court has not given any finding as regards fraud. That the notice has been published only with a view to tarnish her reputation and lower her prestige in the society. The other allegations made in the complaint are as regards the reference in the notice to the various litigations pending between the parties and stating that the complainant did not have any ownership or title in the property in question and that the court had not passed any order in her favour to the effect that she was an heir. That in the notice it has been specifically stated that the complainant and her son do not have any right, title or interest or rights of a successor in the property in question.
7) In the aforesaid premises, the allegations made in the complaint are required to be read along with the order passed by the civil court in Civil Miscellaneous Application No.49-50 of 2001, a copy whereof has been annexed along with the present application.
8) A perusal of the order dated 12.7.2007 passed in the above referred application shows that the trial court has found that for the opponent (that is the complainant) to say that the grant was being opposed by “nobody” was misleading. The grant was obtained by concealing from the court something which was very material to the case. The court, inter alia, after recording the aforesaid, has revoked the succession certificate granted in favour of the complainant. The court while considering the validity of the succession certificate has further observed that in its view, even if, no fraud was committed by the present opponent (the complainant) but once it is established that even on the basis of the particulars supplied by the opponent for grant of succession certificate, it was imperative on the part of the court to issue citation upon the legal heirs as the property of the deceased devolved upon the heirs in case of intestate succession. The aforesaid observation made by the court, in no manner, can be construed to mean that the court had observed that no fraud had been committed by the opponent. Under the circumstances, the allegations made in the complaint to the effect that the public notice contained incorrect facts and that the court had not recorded any finding as regards fraud, is contrary to record.
9) Besides, there is considerable force in the submission advanced by the learned advocate for the applicant to the effect that the present case falls within the exceptions carved out under section 499 IPC and more particularly the first, fourth, and ninth exceptions thereto. The first exception to section 499 bears the heading “Imputation of truth which public good requires to be made or published” and says that it is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. In the facts of the present case, what is published in the above referred notice is to the effect that the succession certificate issued in favour of the complainant has been set aside by the court on the ground of fraud and misrepresentation. On a plain reading of the judgment and order dated 12.7.2007, the aforesaid recital in the public notice cannot be said to be contrary to the record inasmuch as the learned Judge has observed that there is concealment of material facts and that certain facts stated by the complainant were misleading. The trial court has also answered the issue as regards the obtaining of the succession certificate by the complainant by fraud, in the affirmative. Thus, as contended on behalf of the applicant, since the complainant had been constantly attempting to sell the property in question, to make the public aware and to put them to guard not to deal with the complainant in respect of the said property, the applicant has published the aforesaid notice. Under the circumstances, the first exception to section 499 is clearly attracted in the present case. The fourth exception, which relates to publication of report of proceedings of court shows that it is not defamation to publish substantially true report of the proceedings of a Court of Justice. On a conjoint reading of the complaint and the judgment and order passed by the trial court, it is apparent that what is stated in the public notice is a substantially true report of the proceedings of court and the result of such proceedings. Under the circumstances, the fourth exception to section 499 would also be applicable in the facts of the present case. The ninth exception to section 499 IPC, relates to imputation made in good faith by a person for protection of his or other's interests and says that it is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good. In the present case, the imputations made in the public notice appear to have been made in good faith and are based upon the orders passed by the civil court and have been made with a view to protect the interests of the applicant and other co-owners of the property in question as well as for the public good. Under the circumstances, the present case clearly falls within the exceptions provided under section 499 IPC and, hence, on the allegations made in the complaint, it cannot be said that the offence under section 500 IPC has been committed by the applicant. Under the circumstances, continuance of the proceedings against the applicant would amount to an abuse of the process of court, warranting intervention in exercise of powers under section 482 of the Code. In the light of the fact that reading the complaint in its entirety and taking the allegations made therein at face value as being true and correct, no offence as alleged can be stated to have been made out, the impugned complaint cannot be sustained.
10) For the foregoing reasons, the application succeeds and is, accordingly, allowed. Criminal Case No.4394 of 2011, pending in the Court of the learned Chief Judicial Magistrate, Jamnagar, is hereby quashed and set aside. Rule is made absolute accordingly.
(HARSHA DEVANI, J.) Vahid