JUDGMENT
J.D. Jain, J.
(1) This Revision Petition has a chequered history. The facts giving rise to this petition succinctly are that Radha Kishan Vij, petitioner No. 2, was formerly residing as a tenant in house No. H-5/13, Krishan Nagar, Delhi, belonging to Hans Raj father of Ashok Kumar. respondent No. 2. At the relevant time he was residing at house No. C-25, New Govind Puri, East Delhi. On 9th April 1970 he lodged a complaint with the Officer in charge, Police Post Krishan Nagar against Ashok Kumar, respondent No. 2 alleging that the latter was shadowing his daughter Miss Vanita, who was employed at Pusa Institute and as such bad to go to her office every day. Respondent No. 2 would even pass indecent remarks on seeing her with the result that all of them including Vanita were very much perturbed. Radha Kishan had brought this fact to the notice of Ashok Kumar’s father but in vain. So he requested the police to save them from the activities of Ashok Kumar who was a rowdy and was harassing them. He was even threatening to kill them. On 10th April 1970, Thakur Chander Badan Singh, petitioner No. 3, who was then posted as Sub inspector in charge. Police Post Krishan Nagar, was on patrol Along with a constable. As he reached bus stop Radha Puri at about 10 A.M. he saw Ashok Kumar standing there. Miss Vanita Vij too reached there in the meantime. On seeing her, Ashok Kumar blew a whistle to which she objected but Ashok Kumar persisted in his misbehavior and addressing Vanita he said, “Sohaneo Koochh Hamare Pay Raham Karo”. (O beautiful, have mercy on me). Both Radha Kishan and Pritam Dass petitioners too arrived there in the meanwhile. Apprehending that in case preventive action was not taken respondent No. 2 may not commit any cognizable crime by outraging her modesty. Thakur Chander Badan Singh arrested respondent No. 2 then and there and took him to the Police Station. On the same day he submitted a Calendar i.e. report to the Sub-Divisional Magistrate, Shahdara, for initiation of security proceeding under Section 107/51, Code of Criminal Procedure (hereinafter referred to as ‘the Code’), against Ashok Kumar. During the pendency of the proceedings Radha Kishan moved an application dated 24th April, 1970, inter alia, stating that Ashok Kumar was a bad character and he was still persisting in his misbehavior by shadowing and teasing Vanita whenever she went out of her house turn attending work. He further stated that respondent No. 2 when requested not to misbehave with Vanita, instead of mending himself threatened him with dire consequences. Still later, Radha Kishan made another application dated 28th November, 1970 to the Sub-Divisional Magistrate about the continued misbehavior on the part of Ashok Kumar, respondent. He further alleged that his daughter had received one letter dated 24th November, 1970 purporting to have been posted by someone in the fictitious name of Subhash from Gaziabad. However, the postal stamp borne on the envelope indicated Delhi as place of posting.
(2) Pritam Dass, petitioner No. 1. Radha Kishan Vij, petitioner No. 2 and Thakur Chander Badan Singh. petitioner No. 3 besides some others appeared as prosecution witnesses in the said proceedings. They reiterated the allegations contained in the report lodged by Radha Kishan and the report drawn up by Thakur Chancier Badan Singh with regard to the incident dated 10th April 1970. According to all of them, Ashok Kumar used to blow whistle and pass indecent remarks on Vanita in order to tease her and have sadistic pleasure. He would even say that he would marry Vanita and none else.
(3) The Sub-Divisional Magistrate vide his order dated 7th January, 1971 directed Ashok Kumar, respondent, to furnish a bond for keeping peace for a period of one year. Feeling aggrieved, he filed a revision petition which was heard by on Additional Sessions Judge, the Additional Sessions Judge upheld the order of the Sub-Divisional Magistrate but reduced the period of security to four months. Still not satisfied, the respondent Ashok Kumar filed revision petition in the High Court. M. R. A. Ansari, J. who heard the revision petition, remanded the case vide his order dated 4th May, 1973 with the direction that the matter be heard and decided afresh on merits by another Additional Sessions Judge. Accordingly, it was heard by Shri M. K. Chawla. Additional Sessions Judge (a. his Lordship then was). Vide his order dated 4th June 1973 Shri Chawla held that the prosecution had miserably failed to bring the case within the ambit of Section 107/151 of the Code. He, therefore, set aside the “conviction and sentence” awarded by the trial Magistrate, accepted his appeal and “acquitted” him (i.e. Ashok Kumar, respondent No. 2).
(4) Thereafter, a fresh round of litigation started between the parties. It was now the turn of Ashok Kumar, respondent, to settle the scores. So, on 31st October, 1973 he instituted a complaint in the court of a Judicial Magistrate under Sections 500/426 read with Section 120-B, Indian Penal Code, against the present petitioners and Vanita. He asserted that he was an educated young man belonging to a respectable family and had clean antecedents. However, all the accused entered into a criminal conspiracy on or about 9th April, 1970 to implicate him in a false case so as to defame him. Pursuant to the said conspiracy Radha Kishan lodged a report with the police on 9th April 1970. inter alia, describing him as a man of desperate character (Goonda) who used to chase his daughter Vanita and tease her. On 10th April, 1970, Thakur Chander Badan Singh arrested him under Section 107/151 of the Code when he was taken to the police station by Radha Kishan on a false pretext. The latter also made another application dated 24th April, 1970, inter alia, alleging that he (Ashok Kumar) had threatened to disfigure his daughter Vanita by throwing acid on her and further saying that he (Ashok Kumar) had threatened that he would kill them. The accused persons appeared in the witness box as prosecution witnesses and deposed falsely against him to the same effect. As a consequence thereof he was defamed and lowered in the estimation of the people of locality especially his neighbours and even his father felt small socially and mentally. He asserted that the aforesaid complaint had been lodged fay the accused persons pursuant to a conspiracy hatched by all of them mala fide with intention to injure his and his family’s respect and honour.
(5) Charge for the offence of conspiracy under Section 120-B, Indian Penal Code, was dropped by the learned Magistrate vides order dated 2nd August 1975 for want of requisite sanction from the Government as required under Section 196 of the Code. Still later. Vanita was discharged vide order dated 18th December, 1976.
(6) At the stage of inquiry, respondent No. 2 stepped into the witness box as Public Witness 1 and, inter alia, deposed that on 10th April, 1970 he had gone to the shop of a tea vendor at Radha Puri Bus Stop to purchase curd. Radha Kishan and Pritam Dass came there and, asked him to accompany them as they had some work with him. Then. they took him to Police Post Krishan Nagar where Thakur Chander Badan Singh was present. They asked Thakur Chander Badan Singh to act as agreed between them earlier. Thakur Chander Badan Singh then falsely implicated him in a case of teasing Vanita and initiated proceedings under Section 107/151 of the Cede on that pretext. He suffered in many ways on that account apart from being defamed amongst his neighbours and acquaintances. He could not appear for an interview in connection with a job in the Indian Tourism Department on 24th April, 1970 on which date the interview was scheduled to take place as he had to attend the court on that very day in connection with the above proceedings. Further, according to him he joined Iti Shahdara in August, 1970 for a diploma course in air-conditioning but he fell short of attendance because he had to attend the court on various dates of hearing and ultimately he failed in the examination because of his attendance falling short. He further deposed that he had come to know from his father that Radha Kishan had borrowed Rs. 500 from him (i.e. his father) when Radha Kishan was his (i.e. his father’s) tenant and Radha Kishan did not pay- even rent for several months before quitting the demised pre- mises. On his father’s demanding the same Radha Kishan threatened him (i.e. his father) with dire consequences and eventually implicated him (i.e. respondent No. 2) in a false case. He also examined his father and other witnesses in support of these allegations.
(7) Eventually the complaint was dismissed by the Magistrate on 20th July, 1981 on the ground that the statements containing defamatory language/imputations made by the petitioners respondent No. 2 were privileged and as such they were immune from prosecution. Feeling aggrieved, respondent No. 2 moved a revision petition in the High Court against the dismissal of the complaint, it being Criminal Revision No. 254181. Avadh Behari, J. allowed the revision petition vide his order dated 1st September, 1982. In a very lucid judgment now reported as Ashok Kumar v. Radha Kishan Vij & others, , the learned Judge held that : “A party to a judicial proceeding enjoys only qualified privilege because that is what is statutorily enumerated in the nine exceptions to Section 499. No absolute privilege can be claimed. That is available in common law. The law of crimes in India is not a mosaic of statute and common law. It is pure and unalloyed codified law. The court cannot engraft, on the provisions of the Code, exceptions derived from the common law of England which are based on public policy. We have now the high authority of the apex court that under Section 499 the “immunity is a qualified one and is not absolute as it is in English law.” ”
His Lordship further observed that : “WHEN an occasion of qualified privilege exists a person (provided he is not actuated by malice) is entitled to make defamatory statement about another. The statement must be made honestly and without any indirect or improper motive. The principle is that the statement is protected if it is fairly made by a person in the discharge of some”… public or private duty, whether legal or moral, or in the conduct of his own avails, in matters where his interest is concerned. (Too good v. Spying (1834 40 Rr 523). The exceptions to Section 499 afford examples of this qualified privilege. These occasions are celled occasions of qualified privilege, for the protection which the law, or grounds of public roliev, affords is not absolute but depends on the honesty of purpose with which the defamatory statement is made if the freedom of speech is and the liberty is made the clock of maliciousness, the marker of the statement will not be able to rely in the privilege”
RELIANCE in this context was placed by his Lordship on Basirul-Huq & others v. The State of West Bengal . The learned Judge elucidated the legal position further with regard to the scope and sweep of (i) absolute privilege, and (ii) qualified privilege. Said he : “A person defamed on an occasion of absolute privilege has no legal dress, however outrageous the untrue statement which has been made about him and however malicious the motive of the maker of it. If on the other hand, the occasion is one of qualified privilege, the privilege may be defeated by proof of inalice. If the maker of the statement is actuated by malice he forfeits this projection of the shield of qualified privilege. The right of free speech is allowed wholly to prevail over the right of reputation in cases of absolute privilege. The right of freedom of speech prevails over the right of reputation, but only to a limited extent in cases of qualified privilege.”
(8) Since the learned Additional Chief Metropolitan Magistrate had given no finding on the merits of the questions in controversy, the case was remanded to the trial Court for proceeding further in the matter in accordance wish law. The learned Additional Chief Metropolitan Magistrate vide order dated 27th July, 1983, which is sought to be impugned in this revision petition held that a prima facie case under Section 500, Indian Penal Code, was made out against all the three petitioners, but Thakur Chander Badan Singh had also prima facie committed offences punishable under Section? 167 and 342, Indian Penal Code. Hence, he proceeded to frame charges against the petitioners accordingly.
(9) While dealing with the evidence on record, the learned Magistrate has observed that it was for the accused (i.e. petitioners) to establish at the trial that they were entitled to the protection afforded by exception 9 to Section 499. Indian Penal. Code. the said exception affords protection to a person who makes a defamatory statement if it is made (i) in good faith, and (ii) for the protection of the interest of the person mating it or of any other person or for the public good. Evidently both these elements must exist before an accused person can claim benefit of exception 9 and failure to prove either of the two elements would exclude the application of the exception. Further, it cannot be gainsaid that the interest of the person making the imputation must be real and legitimate. However, one cannot lose sight of the cardinal principle of criminal jurisprudence that the onus of proof of the essential ingredients of an offence initially lies on the prosecution. It is only when the prosecution is able to establish prima facie all the requisite postulates of an offence that the accused is required to prove such of the facts which are within his special knowledge. Looked at from this angle, the onus of proving an exception to Section 409, Indian Penal Code, would certainly lie on the accused and, therefore, it is imperative for him to establish both the elements envisaged inthe exception However, it is well settled that the degree to onus of proof which an accused is required to discharge is not the same as is required in the case of prosecution. It is enough that the accused is able to bring on record circumstances which when tested on the touch-stone of preponderance of probabilities would create a belief in the mind of the court that the defense version may be correct. The Supreme Court had an occasion to deal with this respect of the matter in Harbhajan Singh v. State of Punjab & Another, Said the Supreme Court “IT is true that under Section 105 of the Evidence Act. if an accused person claims the benefit of Excepitions, the burden of proving his plea that his case. tells under the Exceptions is on the accused. But the question which often arises and has been frequently considered by judicial decisions is whether the nature and extent of the opus of proof placed on an accused person who claims the benefit of on Exception is exactly the same as the nature and extent of the onus placed on the prosecution in a criminal cases and there is consensus of judicial opinion in favor of the view that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond reasonable doubt. That, no doubt, is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a test, which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where an accused person is called upon to prove that his case falls under an Exception, law treats the onus as discharged if the accused person succeeds “in proving a preponderance of probability”. As soon as the preponderance of probability is proved, the burden shifts to the prosecution which has still to discharge its original onus. It must be remembered that basically, the original onus never shift and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt.”
It was further observed by the Supreme Court that : "IF it can be shown that the appellant has led evidence to show that he acted in good faith, and by the test of probabilities that evidence proves his case, he will be entitled to claim the benefit of Exception Nine. .. ....... (18) ........................... .............. .........................What the Ninth Exception requires an accused person to prove is that he made the statement in good faith. We will presently consider what this requirement means. But at this stage, it is enough to point out that the proof of truth of the impugned statement is not an element of the Ninth Exception as it is of the First, and yet, in dealing with the appellant's case under the Ninth Exception, the learned Judge in several places, has emphasised the fact that the evidence led by the accused did not prove the truth of the allegations which he made in his impugned statement." (10) See also Sukra Mahto v. Basudeo Kumar Mahto and Another, and ChamanLal v. State of Punjab, . The latter authority. inter alia, lays down that one of the factors in assessing the rood faith is to see whether there was any malice on the part of the accused in making the offending imputation. (11) Luckily for the petitioners all the material documents on which proceedings under Section 107/151 of the Code were initiated against Ashok Kumar as also the depositions of all the witnesses have been placed on the record by none other than respondent No. 2 himself. It was, therefore, imperative for the learned Magistrate to consider the said material before arriving at the conclusion that prima facie case of defamation etc. had been made out against the petitioners. Sections 245 and 246 which occur in Part B of Chapter Xix of the Code Vig. cases instituted otherwise than on police report, deal with the question when the accused is to be discharged or when a charge is to be framed for an offence. They specifically refer to the evidence produced by the complainant under Section 244 for formation of the opinion whether there is a ground for presuming that the accused has committed an offence friable under the said Chapter. Hence, the learned Magistrate ought to have taken into consideration the evidence and other material forming part of the judicial record in proceedings under Section 107/151 of the Code before he arrived at the conclusion whether a prima facie case against the petitioners was made out or not. Generally speaking the version of the accused and the evidence on which defense may rely is not before the court at the stage of charge; so it is not possible for the court to consider the plea founded on any exception to the offence unless the plea of the accused is recorded and the defense evidence is produced. However, as stated above, presumably the whole of the defense of the petitioners is there excepting, of course, the testimony of Miss Vanita for whose examination they had moved an application under Section 311 of the Code before framing of the the charge. I do not think it would have been advisable for the Magistrate to have called her at this stage but all the same he was not justified in not considering the evidence of the petitioners in the previous case which had been brought by none other than the complainant Ashok Kumar himself and which clearly reflected their defense in the instant case. In Vadilal Panchal v. Dattachhaya Dulaii Ghadigaonkar and Another. , the Magistrate had directed an inquiry under Section 202 of the Code for ascertaining the truth or falsehood of a complaint and on receipt of the report from the Enquiry Officer which supported the plea of self-defense made by the person complained against, the learned Magistrate dismissed the complaint. The Question arose as to whether it was open to the Magistrate to hold that the plea of self-defense was correct on the basis of the report and the statements of wit- nesses recorded by the Enquiry Officer. Replying in the affirmative, their Lordship & observed as follows : "THE Magistrate must apply his judicial mind to the materials on which he has to form his judgment. In. arriving at his judgment he is not fettered in any way except by judicial considerations; he is not bound to accept what the inquiring officer says, nor is he precluded from accepting a plea based on an exception, provided always there are satisfactory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not. If the Magistrate has not misdirected himself as to the scope of an inquiry under Section 202 and has applied his mind judicially to the materials before him, it would be erroneous in law to hold that a plea based on an exception can never be accepted by him in arriving at his judgment." (12) Unfortunately, however, for the petitioners the learned Magistrate instead of appraising the evidence on record appears to have been swayed by the observation made by the learned Additional Sessions Judge in his order dated 4th June, 1973 to the effect that : "FROM the perusal of the statement of all the four witnesses, I am clear in my mind that each and every witness has given different story, altogether as regards the teasing of Miss Vanita by the accused. This has thrown a doubt in my mind regarding the true version of the prosecution story." (13) At a later stage the learned Judge said that the prosecution version appeared to be concocted and the defense version appeared to be more probable than the prosecution story. He concluded by saying that the real dispute to his mind appeared to be the demand of Rs. 500 by the father of Ashok Kumar from Radha Kishan, upon which the latter felt offended and tried to falsely implicate his son. This conclusion in my view overlooks the social set up of Hindu society. It does not appeal to reason that just because father of Ashok Kumar had demanded Rs. 500 from Radha Kishan, petitioner, the latter would go so far as to falsely implicate the son of his landlord in a criminal case by involving his own daughter in the matter. Moreover, it is not comprehensible why Thakur Chander Badan should join hands with Radha Kishan in falsely implicating Ashok Kumar in a case of criminal nature and initiating security proceedings under Section 107/151. It is highly doubtful that Radha Kishan could have exercised such an influence over Thakur Chender Badan Singh. The only evidence to establish collusion between Radha Kishan and Thakur Chander Badan Singh is the statement of Ashok Kumar that on arrival at the Police Post Radha Kishan asked Chander Badan Singh to proceed in the matter further as already agreed upon. During cross-examination, however, he admitted that he had not disclosed the factum of talk between Radha Kishan, Pritam Dass and Chander Badan Singh at the Police Post either during his examination by the Sub- Divisional Magistrate in security proceedings or in any of the representations made by him to the higher authorities after his release on bail. He did not mention this fact even in the complaint in this case. If that be so, no reliance could be placed of this part of the testimony of Ashok Kumar. Thus, I have looked in vain for an lota of evidence which would establish ex facie conclusion between Radha Kishan and Thakur Chander Badan Singh. Hence, it is difficult to attribute any ulterior motive! malice to Thakur Chander Badan Singh which would have actuated him in falsely implicate Ashok Kumar. This circumstance alone would render the version of the petitioners in the previous proceeding quite probable. Pertinently Ashok Kumar further admitted that he had not mentioned in his representations to Superintendent of Police and other authorities about the loan advanced by his father and the arrears of rent due from Radha Kishan. Indeed, apart from the bald statement of Ashok Kumar and his father there is no corroborative piece of evidence to lend credence to their version of loan of Rs. 500 to Radha Kishan It is not known if any suit was filed or even written demand was made by father of Ashok Kumar to recover the said amount. There is not a shred of credible evidence to wove malice on the part of the petitioners. On the other hand, the fact remains that Ashok Kumar had known Vantta on account, of Radha Kishan being his father's tenant. So, there is greater probability of his trying to take liberties with her rather than not. It is true that at the stage of framing charge the court is not required to weigh the evidence on record meticulously but it is well settled that the court has undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. As observed by the Supreme Court in Union of India v. Prafulla Kumar Samal and Another, , that "THE test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused." The Supreme Court quoted with approval the following observations appearing in Alamohan Das v. State of West Bengal, , that : "A Magistrate holding an enquiry is not intended to act merely as a recording machine. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment. and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is his duty to discharge the accused; if there is some evidence on which a conviction may reasonably be based, he must commit the case." (14) By no stretch of imagination it can be said that the defense version is totally unworthy of credence. Needless to say that in security proceedings the burden of proof lay on the prosecution to prove allegations made by Radha Kishan beyond reasonable doubt while Ashok Kumar, who was respondent therein, was simply to lead evidence which would have satisfied the lest of preponderance of probability in favor of his version. The tables have now turned. This basic difference has been totally ignored by the learned Magistrate, (15) There is another way of looking at the things, namely that the criminal proceedings between the parks started way back in 1970. The complaint itself was filed in 1973 i.e. more than 12 years ago and the trial has yet to commence. So, allowing the case to take its normal course culminating it conviction/acquittal of the accused may be simply disastrous for the petitioners both in terms of expense and harassment. Must the petitioners go through the mill even though the defense version is already on record and the Court is competent to look into the same. As observed by the Supreme Court in State of Bihar "SUCH protraction itself means considerable harassment to the accused not only monetarily but also by way of constant attention to the case and repeated appearances in court, apart from anxiety. It may well be that the respondents themselves were responsible in a large measure for the slow pace of the case inasmuch as quite a few orders made by the trial Magistrate were challenged in higher courts, but then there has to be a limit to the period for which criminal litigation is allowed to go on at the trial stage." (16) The instant case certainly stands on a better footing, in that the petitioners have a defense which apparently conforms to the test of "preponderance of probability" and cannot be brushed aside easily. (17) The upshot of the whole discussion, therefore, is that the impugned order and the charges framed against the petitioners by the trial Court cannot be sustained. This petition is accordingly allowed and the impugned order as well as the charges framed against the petitioners are quashed.