IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.07.2008 CORAM: THE HONOURABLE MR.JUSTICE K.MOHAN RAM Criminal Revision Case No.948 of 2008 and M.P.No.1 of 2008 Gulam Ahamed Fazil .. Petitioner -Vs- 1. Ghulam Dastagir 2. SarkareAbbasi AshurkahanaeMubarak Wakf Known as 1000 Lights Charities Rep Syed Ali Ispahani .. Respondents Criminal Revision Case filed under Sections 397 and 401 of the Code of Criminal Procedure against the order dated 17.12.2007 in Crl.M.P.No.1063 of 2007 in C.C.No.14620 of 2004 passed by the learned XIII Metropolitan Magistrate, Chennai, dismissing the prayer seeking to include the first respondent as an accused. For Petitioner :: Mr. K.P.Anantha Krishna For Respondents :: No Appearance - - - O R D E R
The accused in C.C.No.14620 of 2004 on the file of the XIII Metropolitan Magistrate, Chennai, being aggrieved by the order of the learned Magistrate, dated 17.12.2007 passed in Crl.M.P.No.1063 of 2007 dismissing the petition filed by the petitioner under Section 319 of the Criminal Procedure Code has filed the above Criminal Revision Case.
2. The petitioner is facing trial for the alleged offence under Section 500 IPC. for having got printed and published a pamphlet containing defamatory material; the printer of the pamphet-Ex.P-2 has been examined as P.W.4; P.W.4 in his evidence has admitted that Ex.P-2 the pamphlet which allegedly contains the defamatory material was printed in his press; on the basis of the said admission of P.W.4 the petitioner who is the accused filed a petition under Section 319 of the Cr.P.C. to proceed against P.W.4 by impleading him as an accused in the case and the said petition was opposed by the complainant and the proposed accused (P.W.4). On a consideration of the materials on record the learned Magistrate dismissed the petition, hence the above Criminal Revision Case.
3. Heard Mr.K.P.Anantha Krishna learned counsel for the petitioner. Learned counsel for the petitioner submitted that since P.W.4 in his evidence has admitted that Ex.P-2 was printed in his press, he is also liable to be prosecuted, if not for the offence under Section 500 IPC, atleast for the offence under Section 500 read with 109 IPC. He further submitted that except the evidence of P.W.4 there is no other evidence as against the petitioner and P.W.4 to get-away from the prosecution only has sided with the complainant and deposed against the petitioner.
4. I have carefully considered the said submissions made by the learned counsel for the petitioner and perused the order of the Court below. The order of the learned Magistrate shows that the learned Magistrate has considered the entire materials on record and has come to the right decision. The learned Magistrate has observed that the Court has spent for more than three years in a summons case and has made the following observations:-
This Court has spent more than 3 years in a summons case and at this stage this Court considering the quantum of evidence collected and the amount of time spent by this Court in collecting the evidence considers that there is no necessity to exercise its discretionary power prescribed u/s 319 CrPC, because the evidence already recorded does not disclose that Gulam Dastagir has made the defamatory imputations in the pamphlet. Just because there is some evidence on record implicating Gulam Dastagir in the crime it cannot be said that there is a compelling duty on the Court to proceed against Gulam Dastagir for commission of offence u/s 499 IPC.
5. In the considered view of this Court the above said observation of the trial court shows that it has exercised its discretionary power under Section 139 of the Cr.P.C. judiciously and no exception can be taken to the same.
6. For one another reason also, the above Criminal Revision Case is liable to be dismissed. Section 499 IPC reads as follows:-
499. Defamation. – Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person, is said except in the cases hereinafter excepted, to defame that person.
A reading of the above said provision makes it clear that an imputation concerning any person should have been made or published either intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person. Neither in the complaint nor in his evidence the complainant-P.W.1 has alleged or stated that P.W.4 printed the pamphlet which contains the alleged defamatory material with an intention or with a knowledge or having reasons to believe that such imputation will harm the reputation of the complainant. In a case of defamation the aggrieved person is the one whose reputation is alleged to have been harmed. When the complainant has admittedly not alleged or stated in his evidence about the intention knowledge or reasonable belief on the part of P.W.4, there is absolutely no possibility of convicting P.W.4 even if he is arrayed as an accused on the basis of the admission made by him during the course of his evidence. It has to be pointed out that the reputation of the accused has not been affected or harmed. Therefore he cannot be considered to be an aggrieved person and hence his petition filed under Section 319 of the Cr.P.C. has been rightly dismissed by the Court below.
K.MOHAN RAM, J.,
srk
7. At this juncture it is also pertinent to refer to Section 199 of the Criminal Procedure Code which reads as follows:-
199. Prosecution for defamation. – (1) No court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:
The above said provision makes it very clear that no Court shall take cognizance of a complaint alleging defamation unless such a complaint had been filed by the person aggrieved by the offence. In this case as pointed out above the accused / petitioner herein cannot be considered to be aggrieved by the offence of defamation and hence the petition filed by him under Section 319 of the Criminal Procedure Code is not maintainable.
8. For the aforesaid reasons, the above Criminal Revision Case is liable to be dismissed and accordingly dismissed. Consequently the connected MP is closed.
29.07.2008
Index : Yes / No
Web : Yes / No
srk
To
1. XIII Metropolitan Magistrate, Chennai,
2. The Public Prosecutor, Madras High Court, Madras
Crl.R.C.No.948 of 2008
and M.P.No.1 of 2008