Rule. Mr. Raval, Ld.
APP waives service of rule for the respondent - State.
2. In the facts and circumstances of the case and with the consent of both the sides, the matter is taken up for final disposal today.
3. Heard Mr. ND Nanavati, Ld. Sr. Counsel with Mr. Hriday Buch, Ld. Advocate for the petitioner and Mr. Raval, Ld. APP for the respondent - State.
4. The petitioner company through its authorized representative Mr. RN Trivedi, Senior Executive, Environment, filed a private criminal complaint on 3/7/2006 in the Court of Ld. Judicial Magistrate First Class, Ankleshwar [hereinafter referred to as 'the trial Court'] alleging the offences punishable under sections 500, 501 and 502 read with section 34 of the Indian Penal Code [IPC] against 15 named accused persons. It appears that the trial Court, without recording verification of the concerned officer of the complainant, straightway dismissed the complaint under section 203 of the Code of Criminal Procedure [hereinafter referred to as 'Cr. P.C.'] vide order dated 19/8/2006. The petitioner company challenged the said order in Sessions Court, Bharuch, camp at Ankleshwar, by preferring Criminal Revision Application No. 222/2006. Vide judgment and order dated 28/12/2006 the said Criminal Revision Application was allowed and the earlier order dated 19/8/2006 passed by the trial Court dismissing the complaint came to be set aside and directed the trial Court to record verification of the authorized officer of the petitioner company and to proceed further in accordance with the provisions contained in the Cr. P.C. It transpires that thereafter, the trial Court on 15/2/2007 recorded the verification of authorized officer of the petitioner company, namely one Mr. RN Trivedi. The trial Court, thereafter, vide order dated 15/2/2007 directed the police to inquire the complaint under section 202 of the Cr. P.C. It transpires that the police, after concluding the inquiry, forwarded a report on 24/5/2007 to the trial Court, stating that the offence of defamation was prima-facie made out involving the 15 accused persons. The trial Court, vide order dated 8/1/2008 directed the police authority to further inquire into the matter including the direction that the concerned police officer should at-least record statement of any one of the accused. It transpires that thereafter, the concerned police officer, on 23/3/2008 forwarded a report stating that despite the fact that the accused have been summoned by the concerned police officer, yet none turned up for his statement. It further transpires that thereafter, the trial Court vide order dated 18/8/2008 again dismissed the complaint under section 202 of the Cr. P.C., mainly observing that the instant matter falls within the purview of "9th exception" and the "10th exception" and came to the conclusion that the publication of the articles by the accused on inter-net cannot be said to have been published by the accused with a view to cause any harm to the reputation of the petitioner company. It appears that the petitioner company thereafter, carried the matter to the Sessions Court, Bharuch, camp at Ankleshwar, by preferring Criminal Revision Application No. 161/2008. The Sessions Court, vide judgment and order dated 29/10/2009 though observed in para. 29 in the said order that the order passed by the trial Court dismissing the complaint under section 203 of the Cr. P.C., observing that the intention of the accused was not to defame the petitioner company, was otherwise not proper and reasonable observation of the trial Court, but the trial Court came to the conclusion that because the accused had prepared the report after undertaking some research work, the order passed by the trial Court under section 203 of the Cr. P.C, was required to be confirmed. Under such circumstances, the petitioner company has come before this Court requesting that the impugned order dated 29/12/2009 passed by the Sessions Court, Bharuch, camp at Ankleshwar may be set aside and the trial Court may be directed to take cognizance of the olffences and issue necessary processes.
5. Mr.
ND Nanavati, Ld. Sr. Counsel for the petitioner company submitted that the impugned order passed by the Sessions Court dated 29/12/2009 is self contradictory in nature. The Sessions Court clearly observed that the trial Court committed serious error in coming to the conclusion at this stage that the intention of the accused was not to defame the petitioner company, but at the same time, the observation is made by the Sessions Court that there is no prima-facie evidence to come to the conclusion that because of such report, the reputation of the petitioner company is at stake. It is submitted that not only the police authority, after concluding the inquiry under section 202 of the Cr. P.C., came to the conclusion that prima-facie the offence was made out and that the involvement of all the accused came to be reflected, but even as observed by the Sessions Court, at this stage whether the accused were entitled to any of the exceptions of section 499 of the IPC or not, was not in fact a matter at issue. It was, therefore, submitted that when the Sessions Court has expressly observed that the trial Court was at error when it observed that the publication of the report made by the accused on inter-net was not with the intention to defame the petitioner company, yet the Sessions Court erred in observing that since the petitioner company was not expressly named in the report and, therefore, the order of the trial Court deserved to be maintained.
5.1. Mr.
Nanavati, Ld. Sr. Counsel relied upon a decision rendered in the case of M.N. Meera v/s.
A.C. Mathew reported in 2002 CRI. L.J. 3845 decided by Kerala High Court and more particularly relied upon the observation made in para. 29 in the decision which runs as under :
"9. A libellous statement may not always be made with clarity. A degree of indirectness or innuendo may be there and this can very well be expected since defamation is an offence. It is reasonable to think that he who defames is not anxious to invite legal consequences and would be looking for loop-holes. That, however, does not protect him from prosecution. In view of this position of law, the complaint filed by the petitioner cannot be thrown overboard and in limine on the ground that his name was not mentioned by the accused while making the alleged defamatory statements. It may be mentioned here that in para 2 of the complaint the petitioner had asserted clearly that he is the only retired Taluk Supply Officer residing in Taliparamba and that hence there was no doubt that the accused was referring to him. In the circumstances the Court below has committed an irregularity, if not illegality, in dismissing the complaint on the ground that the statements allegedly made by the accused did not contain the name of the petitioner."
5.2. Therefore, it is submitted that the impugned order dated 29/12/2009 passed by the Sessions Court deserves to be quashed and set aside and the trial Court may be directed to take cognizance of the offence and to issue appropriate processes against the accused persons named in the complaint.
6. Heard Mr. Raval, Ld.
APP for the respondent - State.
7. At the outset, it transpires that despite the fact that the private criminal complaint came to be filed by the responsible officer of the petitioner company in the year 2006, yet even during the period of 6 years more, till today, the matter appears to have been tossed between the various Courts. Initially as soon as the complaint came to be filed, without considering the relevant provisions contained under the Cr. P.C and without recording verification, etc., of the officer of the complainant, straightway the complaint came to be dismissed, which order was subsequently set aside by the Sessions Court. After the matter was remanded to the trial Court and after the verification of the responsible officer of the petitioner company came to be recorded, surprisingly the trial Court involved police machinery in this matter in the sense that the police was directed to inquire into the matter under section 202 of the Cr. P.C. Needless to say that the allegations made in the complaint pertain to technical aspect of the matter. If para. 14 of the complaint is considered, it has been elaborately stated that subsequent to the publication of the article on inter-net, the petitioner company received so many representations, not only drawing the attention of the company to the disputed article, but even threatening the company that why action should not be taken against the company and why the entire manufacturing process should not be stopped. Moreover, the bare perusal of the complaint would reveal that the complainant appears to have justified the manufacturing process of pesticides, etc., and in para. 13 it has been stated that in India, pesticides industries are governed by the various statutes and those statues appeared to have been enlisted in the said para. In the complaint, it has been further alleged that only after undertaking research operation, the petitioner company started manufacturing of such pesticides.
8. In the above view of the matter, it can safely be said at this stage that in the complaint, the complainant has alleged that their action in manufacturing the pesticides, etc., cannot be termed as hazardous to any human being. It is alleged in the complaint that in the article published on inter-net by the accused, the accused have come forward with a stand that such pesticides are hazardous to human being. Under such circumstances, the subject matter involved in this complaint requires technical know-how and the consideration and perusal of certain data, out of some research work in connection with the dispute. This Court, therefore, is of the opinion that the trial Court could have appreciated, even prima-facie, this aspect of the matter, if, instead of forwarding the complaint to the police for inquiry under section 202 of the Cr. P.C, the trial Court could have decided to inquire under section 202 of the Cr. P.C by itself. When the issue involved in the complaint is highly technical issue, instead of forwarding the complaint to the police to inquire into the matter and to solely rely upon the police authority to collect necessary evidence, considering the facts and circumstances of the case, it would have been better if the inquiry was made under section 202 of the Cr. P.C by the Court itself considering the peculiar nature of the complaint. If the inquiry was made by the Court under section 202 of the Cr. P.C., the complainant could have produced relevant scientific evidence in support of its complaint and the trial Court could have better evaluated such evidence than mere statements recorded by the police under section 202 of the Cr. P.C.
9. In the above view of the matter, this Court is of the opinion that the impugned order dated 29/12/2009 passed by the Ld. Addl. Sessions Judge, Bharuch, camp at Ankleshwar in Criminal Revision Application No. 161/2008 deserves to be quashed and set aside by issuing necessary further directions to the trial Court.
10. For the foregoing reasons, the petition is partly allowed and the the impugned order dated 29/12/2009 passed by the Ld. Addl. Sessions Judge, Bharuch, camp at Ankleshwar in Criminal Revision Application No. 161/2008, confirming the order dated 18/8/2008 passed by the Ld. Judicial Magistrate First Class, Ankleshwar, is quashed and set aside. The Ld. Judicial Magistrate First Class, Ankleshwar is directed to hold inquiry of the criminal complaint filed by the petitioner company bearing Criminal Inquiry No. 21/2007, under section 202 of the Code of Criminal Procedure and permit the complainant to examine necessary witnesses including the expert and then to pass appropriate order in accordance with law.
(J.C.UPADHYAYA, J.) * Pansala.
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