Quashed

Dr. Kaikhushroo P. Nicholsan and Ors. v. Amy N. Irani and Anr.

Bombay HC8 Mar 2013APL/50/2011

Case brief

AI extract

What is this about?

The High Court addressed criminal applications challenging a defamation complaint. The court held that the verification statement failed to specifically allege how each accused committed the offence or showed lack of good faith. It further noted no public publication occurred, as letters were sent to authorities. The quashing application was allowed.

What did the court decide?

The criminal process issued upon the insufficiency-compliant verification statement is quashed.

Dr. Kaikhushroo P. Nicholsan and Ors. Vs Amy N… — Writ and Judicial Review | Bombay HC (2013)

APL No.49_50_2011

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO.49 OF 2011

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CASE NO.650/SS/2010

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Mr. Viraf N. Chiniwala – Applicant

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V/s.

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– Mrs. Amy N. Irani & Anr. Respondents

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ALONGIWITH

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CRIMINAL APPLICATION NO.50 OF 2011

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Dr. Kaikhushroo P. Nicholsan & Ors. – Applicant

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V/s.

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– Mrs. Amy N. Irani & Anr. Respondents

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Mr. M.G. Shukla, Adv. for the Applicant. Mr. M.S. Dehlvi, Adv. for the Respondents Smt. A.A. Mane, APP for the State.

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CORAM : MRS. ROSHAN DALVI, J. DATE : 8th March, 2013.

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P.C. :-

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The Applicant are trustees of a charitable trust in respect of certain buildings in which the Respondent herein, who was the original complainant, resides. The complainant filed a criminal complaint essentially for defamation against the nine accused out of whom the applicants herein are the four trustees of charitable trust who, though not a legal person, has been arrayed as an accused. The complaint is of general nature made against all. It claims that they all maliciously, threatened and intimidated the complainant in public and in society under certain letters. The letters were received by the

APL No.49_50_2011

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complainant upon certain RTI enquiry. The letters have been written since 2000 until 2010. The contents of the letters of these entire period constitutes the complaint of defamation.

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Aside from the fact that the letters are not written to the public and not published or written to the society at large or published as such, and are letters written to the criminal prosecution agency being Additional Commissioner of Police, Senior Inspector of Police etc., the complainant upon receiving the letters has alleged defamation by such libel in as much as the writing came to tarnish her in the society and public.

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Upon such a complaint the learned Magistrate has recorded verification statement. The verification statement does not show the precise case of defamation, which is the main and essential charge, against any one specific person by reference. It is general in character and shows how the accused Nos.1 to 6, 6A to 6E, 7 & 8 and 9 time and again impinged upon the character of complainant as they are in habit of defaming.

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The verification statement mentions about threat and intimidation “by disparaging statements” before the “society and public” to insult and annoy her by such “maligning and conspiracy”.

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No single incident against any single person is given. The letters relied upon by the complainant in the complaint are referred to in the verification statement.

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Counsel on behalf of the complainant / Respondent herein drew my attention to the judgment in the case of M.A. Rumugam Vs. Kittu @ Krishnamoorthy, 2009 (57) BLJR 501, (2009) 1SCC 101 , which was also a case of defamation in a private complaint in which upon cognizance being taken the learned Magistrate issued summons and a petition was filed for quashing the complaint. That was the

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case where the accused made specific allegations in the complaint against the accused. They came to be rebutted on the ground that they were made in good faith. It was held that it was for the accused in the criminal complaint to show good faith and consequently the prosecution was not quashed.

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In this case the complainant must show in a private complaint and more specially in verification statement the material against each of the accused and the specific allegations made by them. That is not done. No specific allegation is shown. A reference to the letters is made. A reference to a complaint is made. The complainant's reading of the letter that they have defamed maligned her character and intimidated and threatened her with derogatory remarks is only mentioned. How they are defamatory is not shown. How they maligned her character is not shown. Even what was the intimidation is not mentioned. By which words she was insulted or annoyed is not shown. The complainant in a verification statement has referred to “such derogatory and disparaging statements”. The derogatory statements are not shown in the verification. 8. Counsel on behalf of the Petitioner herein, the accused in complaint drew my attention to the Judgment in the case of Dr. Arun Tikekar & Ors. Vs. Sanatan Sanstha & Ors., CDJ 2010 BHC 886, in which case in the verification statement the complainant reproduced what was stated by the original accused No.1 before the journalist but did not utter the words stated by the either of the accused. There was no reference to specific items published in the newspapers and hence it was observed that “there is nothing against the applicants in the verification statement”. It was also observed that there no reference to the applicants or the roles played by them and how the accused were responsible for publication.

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Citing a earlier Supreme Court Judgment it is shown that the object of the verification in such case does not survive. The verification statement has to show the prima facie case against the person accused in the complaint to ascertain whether it is vexatious and to harass the accused. It must show how the offence was committed and how the accused persons were responsible. It cannot mechanically set out the same things mentioned in the complaint. It must elicit the truth.

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In this case there is no publication to the public. Whatever publication is shown is by way of letters to the police, the lawful authority to whom the citizens are entitled to make complaints. 11. Even precisely what was stated in such letters is not mentioned in the verification statement. 12. It would, therefore, be neither possible nor permissible to proceed in case of defamation against the accused in the criminal complaint. Consequently the process issued upon the verification statement which does not comply with the legal requirements itself is required to be quashed and is quashed.

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This order is stayed for two weeks.

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( ROSHAN DALVI, J.)

Dr. Kaikhushroo P. Nicholsan and Ors. v. Amy N. Irani and Anr.

Case brief

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What did the court decide?

Dr. Kaikhushroo P. Nicholsan and Ors. v. Amy N. Irani and Anr.

Case brief

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What did the court decide?

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