Dismissed

Dibyajyoti Tamuli and Anr. v. Rekhamoni Buragohain

Gauhati HC8 Jan 2021Crl.Pet./309/2018

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed two criminal petitions filed under Section 482 CrPC seeking quashing of proceedings for defamation and sexual harassment. The Court held that the complaint prima facie disclosed offences and that the question of good faith under Exception 8 to Section 499 IPC is for determination during trial, not at the quashing stage.

What did the court decide?

Both criminal petitions were dismissed, and any interim stay granted was vacated.

Dibyajyoti Tamuli and Anr. Vs Rekhamoni Buragohain — Quashing and FIR | Gauhati HC (2021)

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GAHC010066402018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Pet./309/2018

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DIBYAJYOTI TAMULI AND ANR.

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S/O SRI BIPIN CHANDRA TAMULI, PRESENTLY WORKING AS ASSISTANT TEACHER, MORIGAON H.S. AND M.P. SCHOOL, PO AND PS MORIGAON, DIST. MORIGAON, ASSAM, PIN-782105

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2: RATUL CHADNRA BORDOLOI S/O SRI TAPU RAM BORDOLOI PRESENTLY WORKING AS ASSISTANT TEACHER MORIGAON HS AND M.P. SCHOOL PO AND PS MORIGAON DIST. MORIGAON ASSAM PIN-78210

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VERSUS

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REKHAMONI BURAGOHAIN

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W/O SRI RAMAEN NATH, R/O MORIGOHAIN GAON, PO AND PS MORIGAON, DIST. MORIGAON, ASSAM, PIN-782105

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Advocate for the Petitioner : MR G BAISHYA

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Advocate for the Respondent : PP, ASSAM

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Linked Case : Crl.Pet./78/2018

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NILAKSHI BHUYAN AND ANR. W/O SRI KAMAL BHUYAN

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Page No.# 2/8

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R/O DUBARI PATH NH-37 NURSERY TINIALI P.O. GOTANAGAR P.S. JALUKBARI DIST. KAMRUP (M) ASSAM GUWAHATI-781011. PRESENTLY WORKING AS SUBJECT TEACHER IN ZOOLOGY MORIGAON H.S. AND M.P. SCHOOL P.O. AND P.S. MORIGAON

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DIST. MORIGAON ASSAM PIN - 782105.

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2: MOKBUL HUSSAIN S/OLT. MAJUM ALI PRESENTLY WORKING AS SUBJECT TEACHER IN HISTORY MORIGON H.S. AND M.P. SCHOOL P.O. AND P.S. MORIGAON DIST. MORIGAON ASSAM PIN - 782105. VERSUS REKHAMONI BURAGOHAIN W/O W/O SRI RAMEN NATH R/O MORIGOHAIN GAON P.O. AND P.S. MORIGAON DIST. MORIGAON ASSAM PIN - 782105.

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-----------Advocate for : MR G BAISHYA Advocate for : MR H R A CHOUDHURY appearing for REKHAMONI BURAGOHAIN

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BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI

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JUDGMENT

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Page No.# 3/8

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Date : 08-01-2021

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JUDGMENT & ORDER (CAV)

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Learned counsel, Mr. G. Baishya for the petitioners and learned Sr. Counsel, Mr. HRA Choudhury assisted by Mr. A. Ahmed, learned counsel for the respondent have been heard.

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By these two petitions under Section 482 CrPC, the petitioners pray for setting aside the order dated 03.11.2017 passed in CR No. 997/2017,, whereby the learned Magistrate took cognizance against the petitioners and also for quashing the proceeding in CR No. 997/2017. Both the criminal petitions having arisen out of the same complaint, they are taken together for disposal by this common judgment and order.

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The respondent No. 2 herein lodged a complaint with the Judicial Magistrate, Morigaon with the allegation of defamation, criminal intimidation as well as sexual harassment and outraging of modesty. On the basis of the said complaint, learned Magistrate took cognizance of offence under Section 354A/500/34 IPC against the petitioners.

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Aggrieved by the said order of taking cognizance, the petitioners have preferred this application for quashing the proceeding.

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Learned counsel for the petitioners Mr. G. Baishya submitted that the allegation made in the complaint was untrue and absurd, and the complaint was filed as a result of conflict and dispute between the parties regarding selection to a post of Principal, which is primarily civil in nature. Further contention of the learned counsel for the petitioner was that the basis of the complaint being a letter written by the petitioners to the Deputy Commissioner, as superior authority, the case of the petitioners shall come within the exception 8 to Section 499 IPC, and as such, no offence under Section 500 IPC can be said to have been committed by the petitioners. Mr. Baishya further submitted that the letter containing the alleged defamatory statement was addressed to the Deputy Commissioner and not to the public at large, and as such, the ingredient of offence under Section 499 IPC is absent, inasmuch as, there was no

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publication of the alleged defamatory statement. In support of his submission, Mr. Baishya placed reliance on the following decisions:

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(2009) 10 SCC 184: Neelu Chopra & Anr. Vs. Bharti.

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(1999) 3 SCC 134: Rajendra Kumar Sitaram Pandey & Ors. Vs. Uttam & Anr.

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Learned Sr. Counsel for the respondents Mr. HRA Choudhury submitted that the complaint clearly disclosed the offence punishable under Section 500/354A IPC and as such, the impugned order of the learned Magistrate taking cognizance against the petitioners has not suffered from any illegality or impropriety. The proceeding in the facts and circumstances of the case, cannot be quashed at the initial stage, inasmuch as, the complaint and the statement recorded under Section 200 & 202 CrPC clearly disclosed the ingredients of offences, submits Mr. Choudhury. Further contention of Mr. Choudhury is that the exception 8 to Section 499 IPC is a question of defence, which has to be proved in course of trial and this court in a proceeding under Section 482 CrPC cannot enter into an enquiry as to the merit of the case. It is also contended that ‘good faith’ or ‘bad faith’ is a question of fact which can be decided only during trial and not in a proceeding under Section 482 CrPC. Reliance has been placed by Mr. Choudhury on the following decision:

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(2009) 1 SCC 101: M.A. Rumugam Vs. Kittu @ Krishnamoorthy

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The respondent/complainant interalia alleged in the complaint that the present petitioners submitted a complaint before the Deputy Commissioner, Morigaon with some false allegation, wherein the petitioners have stated that the complainant is a characterless woman and such baseless and defamatory allegation was made with the intention to lower the reputation of the complainant in the department, where she has been working. It was also stated that such false and defamatory statement had lowered the dignity and reputation of the complainant in the society. It was also alleged that the petitioners have been threatening to kill her.

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While taking cognizance, learned Magistrate examined the complainant under Section

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200 CrPC and also conducted an enquiry under Section 202 CrPC and recorded statement of witnesses. In her statement recorded under Section 200 CrPC also the complainant stated on oath that with the intention to prevent the complainant from appearing the interview, the false allegation of bad character was brought by the petitioners.

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The allegations made in the complaint and the materials revealed from the examination of the complainant and other witnesses on oath under Section 200 and 202 CrPC shows, that there was clear allegation of defamatory statement regarding character of the complainant made in the application submitted to the Deputy Commissioner by the petitioners. The copy of the petition, which has been annexed as Annexure-4 also shows that the petitioners stated in the Annexure-A amongst other that moral character of the complainant was not good, which should be considered as a disqualification for her candidature as Principal. The allegations of outraging modesty and sexual harassment were also available in the statement of the witnesses recorded under Section 200 & 202 CrPC.

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The contention of the learned counsel for the petitioner is that since the letter (Annexure-4) was addressed to the Deputy Commissioner and not made public and as such, the same shall not attract the provision of Section 499 IPC. Section 499 IPC defines the defamation as under:

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“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 to defame that person except in the cases falling under exception 1 to 10.”

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From the above definition of ‘defamation’ and more particularly the expression ‘makes or publish any imputation’ it is abundantly clear that making any imputation to any third party other than the person against whom imputation is made, prima facie shall come within the definition of Section 499 IPC, inasmuch as, in order to attract the Section 499 IPC it is not necessary to publish the objectionable statement in public.

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Exception 8 to Section 499 IPC provides that “ It is not defamation to prefer in good

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faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation” . In the instant case, the complain (Annexure-4) was filed before the Deputy Commissioner and there is no dispute that the Deputy Commissioner is the lawful authority over the petitioners and the respondent. However, the imputation of bad character cannot be said to be subject matter associated with the authority. It is also apparent from the complaint addressed to the Deputy Commissioner that criterion to be eligible for appointment to the post of Principal, are - one has to be citizen of India, his/her police verification should be satisfactory and he/she should not have more than one wife living in case of male and in case of female candidate, who had married a person having a wife living. The moral character of the person is not stated to be a part of the eligibility criteria.

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Therefore, from the above eligibility criteria also, the accusation of purported bad character cannot be said to be associated with the subject of the petition addressed to the Deputy Commissioner. It has also been clearly alleged in the complaint that with the intention to deprive the complainant from the post of principal, the baseless and false allegation of bad character, which has no relevance with the eligibility to the post of Principal has been made in the petition. This apart, in the complaint, it has been clearly alleged that the imputation was made with the bad intention to deprive the respondent/complainant of the post of Principal. In view of the above facts and circumstances, the question whether the defamatory imputation was made in good faith or not can only be decided during trial on the basis of evidence.

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In the above facts and circumstances, High Court in exercise of inherent power cannot embark upon an enquiry to ascertain whether the imputation was in good faith or not, which is certainly to be done during the course of trial. The Apex Court in M.A. Rumugam (supra) dealing with the question of good faith with reference to the exception 8, held in paragraphs19, 20 and 21 as under:

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“19. For the purpose of bringing his case within the purview of the Eight and the Ninth Exception appended to Section 499 of the Indian Penal Code, it would be necessary for the appellant to prove good faith for the protection of the interests of the person making it or of any other person or for the public good.

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It is now a well-settled principle of law that those who plead exception must

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prove it. The burden of proof that his action was bonafide would, thus, be on the appellant alone.

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At this stage, in our opinion, it would have been premature for the High Court to consider the materials placed by the appellant before it so as to arrive at a definite conclusion that there was no element of bad faith on the part of the appellant in making the said complaint before the police authorities.”

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On factual matrix, the decision of the Apex Court in Rajendra Kumar Sitaram (supra) is distinguishable and cannot be applied in the fact situation of the present case. The Apex Court in Niul Chopra Vs. Bhanti (supra) observed that in order to lodge a complaint, mere mention of the section and language of those section is not sufficient. What is required is to be brought to the notice of the court, is the particulars of the offence committed by each and every accused and the role played by them. On perusal of the complaint it cannot be said that the complaint is vague. Rather the allegation made in the complaint and the other materials including the statement recorded under Section 200 and 202 CrPC shows that the ingredients of the offence have been prima facie clearly disclosed. Therefore, this decision also is of no help to the petitioners on factual matrix of the case. It is now well settled that for quashing a criminal proceeding at the threshold, the test to be applied is whether the allegation made in the complaint taken in its face value and accepted in its entirety prima facie makes out any offence. If the allegation made in the complaint in its face value prima facie makes out any offence, the inherent power under Section 482 CrPC cannot be invoked for quashing a criminal proceeding at the initial stage [vide State of Haryana Vs. Bhajan Lal reported in 1992 (suppl 1) SCC 335 , R.P. Kapoor Vs. State of Punjab reported in AIR 1960 SC 866 as well as Arun Bhandari (supra).

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On perusal of the complaint in the instant case as indicated above, it is apparent that prima facie offence has been made out and as such, the criminal proceeding at the initial stage cannot be quashed nor the impugned order taking cognizance can be faulted.

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In Dinesh Dineshbhai Chandubhai Patel Vs. State of Gujarat & Ors . reported in (2018) 3 SCC 104 .) the Apex Court held that once the FIR discloses the ingredients of offence, High Court should stay its hands in exercising the inherent power. In State of Haryana Vs. Bhajanlal (supra) also the Apex Court observed that inherent power to quash

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the criminal proceeding at the threshold can be exercised only in rarest of the rate case.

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18. Thus, having regard to the nature of accusation made in the complaint as well as other materials and the scope of interference with the criminal proceeding at the threshold, this court is of the considered opinion that the instant criminal petitions are devoid of merit and deserve to be dismissed. Accordingly, both the criminal petitions are dismissed. Interim stay, if any, stands vacated.

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JUDGE

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Dibyajyoti Tamuli and Anr. v. Rekhamoni Buragohain

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Dibyajyoti Tamuli and Anr. v. Rekhamoni Buragohain

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