J.S. Sekhon, J.
1. The petitioners through this petition under Section 482 of the Code of Criminal Procedure seek the quashment of criminal complaint under Section 500/34, Indian Penal Code filed by Dr. J.L. Mehta against them as well as the order dated 1671992 of Judicial Magistrate Ist Class, Ambala, summoning the petitioners to face trial for the above referred offence.
2. In brief the facts of the cases are that Mst. Shalini Mehta, petitioner No. 1 was married with Capt. Pardeep Mehta son of Dr. J.L. Mehta complainantrespondent at Chandigarh on 14121989. On her application a case under Sections 406/498A, 506 and 323, IPC as well as under Sections 3, 4 and 6 of the Dowry Prohibition Act was registered against Dr. J.L. Mehta, Mrs. Sneh Mehta, motherinlaw, Cap. Pradeep Mehta, husband and Mrs. Sarita Gogia, sisterinlaw of the complainant, on the allegations that these persons started torturing and maltreating her on the ground that she had brought less dowry. They started torturing and maltreating her on the ground that she had brought less dowry. They started forcing her to bring a new Maruti car or its equivalent cash from her parents, but on her refusal, these persons snatched the gold ornaments from her and started harassing her. In Criminal Misc. No. 3745M of 1991, the above referred FIR concerning Dr. J.L. Mehta and Mrs. Sarita Gogia was quashed by accepting their aforesaid application by G.S. Chahal, J. vide order dated June 4, 1991 (copy whereof is Annexure3 R1). In the said order, it was held that the allegations levelled by the complainant against her fatherinlaw and sisterinlaw are vague in nature and do not constitute any offence. Towards the fagend of the judgment, the allegations of the complaint against her fatherinlaw and sisterinlaw were held to be frivolous,, vexatious, oppressive and mala fide and made to wreak vengeance on account of the marriage of the complainant having gone to the rocks. Thereafter, Dr. J.L. Mehta, fatherinlaw of Smt. Shalini Mehta filed the complaint dated 5121991 before the Court of Judicial Magistrate Ist Class, Ambala for committing an offence under Section 500/34, IPC inter alia contending that the complainant is highly qualified and respected teacher in the Panjab University Evening College, where he has been serving as Lecturer/Reader in History and having a very good social circle and is highly respected amongst his colleagues and students. It was further averred that the marriage between Mrs. Shalini and his son did not prove a success because of her unbecoming behaviour and uncompromising attitude. It was further explained that Mrs. Shalini is addicted to the vices of drinking etc. and used to flirt with other persons resulting in the social and mental degradation of her husband and his family in general.She used to abuse her husband and inlaws and that she in connivance with her parents L.V. Lumba, Retd. Lt. Col. and Mrs. Vinod Lumba had lodged a totally false and malicious complaint against the complainant and his family members on 10101990, thereby dragging the complainant and his family members in the uncalled for litigation and that too for the alleged offences under Sections 406/498A, 323 IPC and under Sections 3, 4 and 6 the Dowry Prohibition Act. After lodging the complaint, Mrs. Shalini Mehta along with her parents went to the house of the complainant on 2271990, where they threatened the complainant as well as his family with dire consequences if they failed to pay Rs. 10 lacs. On the false complaint, the Chandigarh Police went to the house of the complainant at Panchkula and arrested him. He was taken to Chandigarh Police Station, where he was made to sit for many hours. He was handcuffed and was paraded and taken on foot from the Police Station to the Court where he was released on bail by the Judicial Magistrate, at Chandigarh. It was also averred that the above referred criminal proceedings against Dr. J.L. Mehta, complainant in this case as well as his daughter Mrs. Sarita Gogia had been quashed by the High Court vide order dated June 4, 1991 (Annexure R1), holding that the allegations in the complaint against the petitioners were frivolous, vexatious, oppressive and mala fide. On these allegations, Dr. J.L. Mehta filed a complaint for defamation against his daughterinlaw as well as against her parents for offence under Section 500/34, IPC. In the said complaint, after recording preliminary evidence, the Judicial Magistrate, Ambala, vide order dated 1671992 (Copy Annexure P3) summoned the three accused for offences under Sections 499 and 500, read with Section 34, Indian Penal Code.
3. Being aggrieved against the aforesaid order, Mrs. Shalini Mehta along with her parents Mr. L.V. Lumba and Mrs. Vinod Lumba wife of Lt. Col. L.V. Lumba has approached the Court for quashment of the complaint and the summoning order of the Magistrate under Section 482, Cr.P.C.
4. In this petition, the accusedpetitioners inter alia aver that the allegations levelled in the earlier FIR against Dr. J.L. Mehta, fatherinlaw of Mrs. Shalini, petitioner as well as her sisterinlaw were made in good faith to the concerned authorities and that the FIR lodged by her against her husband, fatherinlaw, motherinlaw and sisterinlaw was quashed by the High Court only qua her sisterinlaw and fatherinlaw on the ground of vague nature of the allegations and thus, the above referred complaint is not maintainable, especially when the criminal proceedings for offence under Sections 406/498A, Indian Penal Code are still pending against her husband and her motherinlaw. The petitioners also maintained that an absolute privilege is attached to the complaint made to the police in such circumstances. The jurisdiction of Ambala Court to take cognizance was also challenged as the report (Copy Annexure P1) was made at Chandigarh where the case was registered. The respondent was also arrested and produced at Chandigarh. It was also maintained that the false complaint has been filed by the complainant in order to pressurize the petitioners to effect compromise in the case pending against his son and wife.
5. On notice, Dr. J.L. Mehta, complainantrespondent, filed return supporting his allegations in the complaint besides maintaining that no absolute privilege was available to the accused petitioners in this case in view of the judgment of the Saurashtra High Court in Sanghvi v. Khushal Das and another, AIR 1955 Saurashtra 19. The judgment of this Court, referred to above proceedings against the complainant being oppressive, frivolous, vexatious and mala file in order to wreak vengeance on account of failure of the marriage was also stressed and thus the case of the petitioners is not covered under Exception VIII of Section 499, IPC.
6. I have heard the learned counsel for the parties, besides perusing the record.
"Defamation" has been defined in Section 499 of the Indian Penal Code as under:
"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.
Explanation 1. It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2 It may amount to defamation to make an imputation concerning a company or an association or collections of persons as such.
Explanation 3 In imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4 No imputation is said to harm a "person''s reputation, unless that imputation directly or indirectly, in the estimation of others, lower the moral or intellectual character of that person, or lower the character of that person in respect of his caste or of his calling or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful."
Thereafter the legislature had appeneded Ten Exceptions thereto enumerating the circumstances under which the allegations would not amount to defamation. In the case in hand, the petitioners have relied upon Eighth Exception, which reads as under :
"Eighth Exception. Accusation preferred in good faith to authorised person. It is not defamation to prefer in good 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.
Illustration.
If `A'' in good faith accuser `Z'' before a Magistrate, if `A'' in good faith complains of the conduct of `Z'' a servant to `Zs'' master; if A good faith complains the conduct of `Z'' a child, to `Zs'' father. A is within this exception.
Mr. M.R. Midha, the learned counsel for the petitioner relying upon the judgment of the Full Bench of the Kerala High Court in Thekkittil Gopalankutty Nair v. Melepurath Sankunni Ezhuthaseah, AIR 1971 Kerala 280 (FB) contended that the absolute privilege not only attaches to statements made Coram judice but also to those made in course of proceedings so closely connected with judicial proceedings so as to constitute steps towards proceeding and, therefore, forming part of administration of justice. Thus, he maintains that the FIR lodged before the concerned police officer who under the law is authorized to take cognizance of cognizable offences would be covered by the relevant provisions embodied in Exception Eighth above. The decision of the Division Bench of Patna High Court in Bira Gareri v. Dalhin Somaria and others, AIR 1962 Patna 229 was also relied upon in this record.
7. Mr. R.P. Singh, the learned counsel for the complainant respondent, on the other hand, maintained that no such absolute privilege is available to the lodging of the FIR. Reliance in this regard has been placed in the decision of the Division Bench of Saurashtra High Court in Sanghvi''s case (supra). On the strength of this authority it was further contended that the person making the accusation had to establish his good faith under Exception Eighth to Section 499 of the Indian Penal Code.
8. Before the Division Bench of the Patna High Court in Bira Gareri''s case, the controversy related to the passing of decree for damages in a civil action, wherein the Munsif had decreed the suit in part awarding a sum of Rs. 150/ only by way of damages to plaintiff No. 1 while the lower Appellate Court set aside the said decree holding that absolute privilege to the report lodged before the Police Officer in the FIR for of offence under Section 302, Indian Penal Code, was available. On second appeal, the learned Single Judge of High Court, however, had held that no such absolute privilege was available. The Division Bench of that Court held that in a civil action for damages on the basis of a report concerning a cognizable offence made to a Police Officer also attracts absolute privilege as it was the first step in criminal proceedings under Section 44(1) of the old Code enjoined upon every person to lodge report for commission of certain offences mentioned therein including the one under Section 302, Indian Penal Code, by holding in para 6 of the judgment as under :
"In the instant case, it would be noticed that giving information to the police was the first step in criminal proceedings. The Police treated the information given by the appellant as a first information under Section 154 of the Code of Criminal Procedure (hereinafter referred to as the Code). Section 44(1) of the Code provides
"Every person, whether within or without the presidency towns, aware of commission of, or of the intention of any other person to commit any offence punishable under any of the following Sections of the Indian Penal Code (namely), 121, 121A, 122, 123, 124, 124A, 125, 126, 130, 143, 144, 145, 147, 148, 302, 303, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 456, 457, 458, 459 and 460, shall, in the absence of reasonable excuse, the burden of proving which shall lie upon the person so aware forthwith give information to the nearest Magistrate or police officer of such examination or intention."
9. Under Section 156 investigation into cognizable cases has to be done by the officer in charge of the police station, on whom it is incumbent to forward a report to the Magistrate empowered to take cognizance of the offence on a police report in the prescribed form under Section 172(1) of the Code. Cognizance of the offence can be taken by the Magistrate concerned under Section 190(1)(b) of the Code upon a report in writing of such facts made by any police officer.
10. In my opinion, therefore, reading these previsions of the Code, it is clear that the appellant''s statements in the communication to the police was a report which would properly be considered as a step in judicial proceedings. The mere fact that a final report was submitted in the case, in my opinion, would not make any difference. Judicial proceedings might start or might not. The question as to whether the statement made in an information given to the police of a cognizable offence is absolutely privileged or not would not depend upon the future event of the starting of judicial proceedings. Even after starting of such proceedings, it may be found that the case was false and that the information was given out of malice. This point of distinction made out in some of the Indian cases does not commend to me and I am of the view that such a statement contained in a communication to the police or made before a police officer with the object of starting, or in relation to, judicial proceedings is absolutely privileged. If that be not so, no body giving information to the police would be safe for he will have to run the risk of being civily liable for the information. It may well be that if the information is found to be false and to have been actuated by malice, the informant is criminally liable for information under the Indian law as embodied in Section 409 of the Penal Code or even civily liable under certain circumstances to pay damages for malicious prosecution, but he must be held to enjoy the absolute privilege and protected from civil liability for defamation on such a statement.
11. A bare perusal of the fag end of the above reproduced para 6 of the judgment leaves no doubt that in may well be that if information is found to be false and to have been actuated by malice, the informant is criminally liable under the Indian Law as embodied in Section 499, Indian Penal Code or even civily liable under certain circumstances to pay damages for malicious prosecution, but he must be held to enjoy the absolute privilege and protected from civil liability for defamation on such a statement. Reference was made to Article 91 volume 24, of Halsbury''s Laws of England 3rd Edition, p. 51 for coming to that conclusion. In para 4 of the judgment, the Division Bench has remarked that the law in India qua the criminal liability for defamation is codified and embodied in Section 499 of the Penal Code and differs from the law in England in that regard. The civil liability for defamation to pay damages, however, is not governed by any statute law, but is determined with reference to the principles of justice, equity and good conscience, which generally have been imported in this country from English principles.
12. Thus the above referred observations of the Patna High Court are of no help to the accusedpetitioners in the case in hand as the controversy herein pertains to the criminal liability under Section 499, Indian Penal Code.
13. Before the Full Bench of the Kerala High Court in Thekkittil Gopalankutty Nair''s case (supra), the controversy involved was the availability of absolute immunity to the defendant in a civil suit for damages on the basis of the defamatory statements concerning the plaintiff in the copy of the complaint sent to the police officer, although earlier the original complaint was filed before the Executive Magistrate for initiation of proceedings under Section 107 of the Code of Criminal Procedure against the plaintiff. In the said application, certain allegations regarding blackmailing and criminal breach of trust were levelled against the plaintiff. P.T. Raman Nayar, CJ and Gopalan Nambiyar, J. taking the view that absolute privilege attaches not only to the statements made coram judice but also to those made in course of proceedings so closely connected with judicial proceedings so as to constitute steps towards judicial proceeding and, therefore, forming part of administration of justice concluded that absolute privilege was also available to the copy of the complaint forwarded to the police officer for initiation of security proceedings.
14. Thus, it appears that the ratio of the decision of the majority view of the Full Bench in the above referred case was that absolute privilege attaches to the complaint forwarded to the police officer for initiation of security proceedings in a civil action for damages. It is noteworthy that the law of Torts for awarding damages for defamation in civil action is not codified in India and is based on the common law of England, but in a criminal action for defamatory statements contained in the report lodged with the police of a cognizaable offence, one has to fall back on the statutory law contained in Section 499 of the Indian Penal Code.
15. A bare persual of Exception Eighth to Section 499, Indian Penal Code, reproduced above leaves no doubt that only qualified privilege to accusation in good faith preferred to persons who have lawful authority over that person is available and not an absolute privilege or absolute immunity from criminal action for such accusation contained in the FIR pertaining even to cognizable offences.
16. On the other hand, the controversy before the Division Bench of Saurashtra High Court in Sanghvi''s case (supra) related to the availability of absolute privilege under Exception Eighth of Section 499, Indian Penal Code to defamatory statement in the FIR in a criminal action punishable under Section 500, Indian Penal Code. The Division Bench of that Court held that for the application of Exception Eighth in such like circumstances, the accused has to establish that such accusations were made in good faith. The dictum of Exception Eighth itself reveals that the legislature in its wisdom excepted only those accusations preferred in good faith to an authorized person from initiating criminal action. Consequently, there is no escape but to hold that in India no absolute privilege is available to accusation contained in the FIR of a cognizable offence lodged with a police officer, but to take it out of the definition of that `defamation'', the concerned person has to establish his good faith. The factual matrix of the present case have to be examined in the light of the above codified law.
17. In the case in hand, Dr. J.L. Mehta has based his complaint for offence under Section 500/34, Indian Penal Code against Mst. Shalini Mehta, his daughterinlaw and her parents Sh. D.V. Lumba and Mrs. Vinod Lumba on the basis of allegations levelled by Mst. Shalini Mehta in the application to the Inspector General of Police, Union Territory, Chandigarh (Annexure P1) for misappropriation of her Istridhan by her parentslaw, sisterinlaw, and husband regarding demand of dowry and cruelty as well as turning her out of their house while she was having pregnancy of three months. On the basis of that complaint, ultimately as case for offences under Section 498A, 406 323 and 506, Indian Penal Code and under Section 3, 4 and 6 of the Dowry Prohibition Act was registered against Dr. J.L. Mehta and others at Police Station (West) Chandigarh vide FIR No. 136 dated 10101990. Dr. J.L. Mehta was arrested in that case, but released on bail on the same date under the orders of the Court. Dr. J.L. Mehta and his daughter Smt. Sarita Gogia got the FIR as well as subsequent proceedings arising therefrom concerning them quashed through Criminal Misc. No. 3745M of 1991, decided by G.S. Chahal, J. on 461991. It appears that holding of allegations qua these two persons as frivolous vexatious, oppressive, mala fide and made to wreak vengeance on account of the marriage of Mst. Shalini Mehta and Capt. Pradeep Mehta had gone to the rocks towards the fag end of judgment by the learned Single Judge had prompted the complainant to resort to institute this complaint against the present accusedpetitioners under Section 500/34 Indian Penal Code.
18. Thus the only controversy that survives for decision is whether Mst. Shalini Mehta had made the accusation against her fatherinlaw and sisterinlaw in good faith in the said complaint forwarded by her to the InspectorGeneral of Police Chandigarh, on the basis of which above referred cases was registered against them. In this regard, it is noteworthy that the perusal of the judgment of the learned Single Judge of this Court reveals that proceedings against Dr. J.L. Mehta and Mrs. Sarita Gogia as well as the first information report No. 136, dated 10101990 were quashed by holding that the allegations of cruelty, demand or retention of dowry against the fatherinlaw were vague, but these are specific qua her husband and motherinlaw and that these do not constitute any criminal offence even if it is taken that some comments were made by the sisterinlaw on the dowry given by the inlaws of her brother on the occasion of his marriage, as to make such comments, was the normal behaviour of the ladies, who are fond of making fun of others ass the wagoing of the tongue of a lady is rather proverbial. Consequently, the observations of the learned Single Judge regarding the allegations against the fatherinlaw and sisterinlaw being frivolous, vexatious oppressive, male fide and made to wreak vengeance on account of the marriage of the parties having gone to the rocks are obiter dicta as these are not supported by any reasoning.
19. On the other hand, the factum that the prosecution of the husband and motherinlaw at the instance of Mst. Shalini petitioner, on the joint allegations which she had levelled against her fatherinlaw are still pending also clearly shows that she has made the accusations in the FIR against these persons in good faith.
20. For the foregoing reasons the provisions of Exception Eight to Section 499, Indian Penal Code are clearly attracted to this case and take out the accusations from the ambit of definition of defamation contained in Section 499, Indian Penal Code.
Consequently, there is no option but to quash the complaint for offence under Section 500/34, Indian Penal Code, as well as order dated 1671992 of the trial Court summoning the accusedpetitioners to face the trial besides the subsequent proceeding resulting therefrom by accepting this petition. It is ordered accordingly.
