- (1.) Respondent no.1 Anil Kumar Sarkar made a complain with the Police that his brother late Sureswar Das committed suicide being instigated by a section of monks of ISKCON at the instigation of the petitioner Bir Chandra Das. The incident started on June 29, 2000 when one Basanti Devi lodged a complaint with the Officer-in-Charge, Ballygunge Police Station against Sureshwar Das. According to the said complaint, Basanti was a resident of Orissa. Her husband died in August 2009 due to lack of medical treatment and negligence of Adri Dharan Das, a monk of ISKCON where her husband was working for twenty years. After her husband's death she was getting rupees two thousand per month as compensation. Adri Dharan Das also agreed to pay a sum of rupees two lacs which was not paid despite promise. On June 29, 2009 when she came to collect her monthly maintenance Adri Dharan refused to pay and asked her to go to Gurusadaya Dutta Road, Kolkata and collect money from Sureswara Das. Accordingly, Basanti went there and met Sureswara. Sureswara ravished her and threatened her with dire consequence. The Police immediately acted on the said complaint and arrested Sureswara. It appears that the Police ultimately submitted a final report wherein the Investigating Officer observed that Sureswara was falsely implicated in the said case. However Sureswara by that time committed suicide in custody due to depression. While doing so, he left a suicidal note involving some of the monks including Bir Chandra. Since then the brother of Sureswara, Anil Kumar was moving one after the other complaint as against the persons named by Sureswara in his suicidal note. Anil filed an application under Section 211 of the Indian Penal Code against Basanti Devi for lodging a false complaint. With regard to the report on the suicide Anil filed a "Naraji" petition alleging that the Police did not investigate the case properly. Ultimately, Anil filed an application under Section 200 of the Criminal Procedure Code against Basanti, Bir Chandra and five others implicating them under Section 120-B/211/376 of the Indian Penal Code read with Section 500 thereof. The learned Magistrate after hearing the complaint observed that prima facie case was established against the accused committing offence punishable under Section 211/500 of the Indian Penal Code read with Section 120-B thereof and accordingly directed process to be issued. Bir Chandra approached this Court for quashing of the said proceeding being Case No.C-2002/2008. Mr. Kazi Sofiullah, learned counsel appearing for the petitioner contended that the complaint made under Section 211 was not maintainable in view of the fact that only the Court where such false implication was made, was competent to lodge the complaint and initiate proceeding under Section 211. He also contended that since the complaint was lodged in respect of one single incident and the offence was said to be interlinked the entire complaint must be quashed being not maintainable. Mr. Sofiullah relied on a Single Bench decision of this Court wherein Partha Sakha Datta,J. (as His Lordship then was) considered and rejected the prayer of Anil as against the final report. While doing so, His Lordship made some observations about the present complaint which I am now considering. Mr. Sofiullah took me to internal pages 8, 9, 10 and 15 of the said decision. Mr. Sofiullah also relied on an Apex Court decision in the case of Kamalapati Trivedi VS- The State of West Bengal, 1979 AIR(SC) 777 to support his contention that offence under Section 211 could only be complained by the Court and/or the Magistrate before whom such offence was committed. Mr. Joymalya Bagchi, learned counsel appearing for the respondent in his usual fairness conceded that in view of the decision in the case of Kamalapati Trivedi (Supra), the proceeding could not be held to be maintainable under Section 211. He however strenuously disputed the contention of Mr. Sofiullah that the offence under Section 500 was interlinked and as such could not be independently tried even if Section 211 was dropped. According to Mr. Bagchi, Section 500 would denote criminal defamation. The said Section provides that whoever defames another shall be punished. In the instant case, Sureswara was defamed by the accused by making a false implication which ultimately compelled him to commit suicide out of depression. Hence, such proceeding irrespective of Section 211 could stand on its own. Mr. Bagchi relied on the decision in the case of Basir-Ul-Huq & Others VS- State of West Bengal on the complaint of Dhirendera Nath Bera, 1953 AIR(SC) 293 wherein an identical issue as raised by Mr. Sofiullah was negated by the Apex Court. In the said case the appellants contended that the Magistrate had no jurisdiction to take cognizance of the complaint under Section 500 and Section 297 of the Indian Penal Code, as the facts disclosed constituted an offence under Section 182 which offence could not be tried except on a complaint made by a public servant. Such question was answered in the negative and the appeal was dismissed. The Apex Court observed that the charge under Section 500 constituted a distinct offence than filing a false report before a public servant.
(2.) On the issue of defamation Mr. Bagchi cited an age old decision (Satis Chandra Chakrabarti VS- Ram Dayal De, 1921 AIR(Cal) 1) of Sir Ashutosh Mookerjee,J., the Acting Chief Justice (as His Lordship the then was). Speaking for a Five Judge Bench, His Lordship observed that refused to sanction to prosecute under Section 195 where defamatory statement was made in a judicial proceeding would not debar a complaint made under Section 500 of the Indian Penal Code. Their Lordships summarized the views in paragraph 22 which is quoted below :- "(1) If a party to a judicial proceeding is prosecuted for defamation in respect of a statement made therein on oath or otherwise, his liability must be determined by reference to the provisions of Section 499, Indian Penal Code. Under the Letters Patent, the question must be solved by the application of the provisions of the Indian Penal Code and not otherwise; the Court cannot engraft thereupon exceptions derived from the Common Law of England or based on grounds of public policy. Consequently, a person in such a position is entitled only to the benefit of the qualified privilege mentioned in Section 499, Indian Penal Code. (2) If a party to a judicial proceeding is sued in a Civil Court for damages for defamation in respect of a statement made therein on oath or otherwise, his liability, in the absence of statutory rules applicable to the subject, must be determined with reference to principles of justice, equity and good conscience. There is a large preponderance of judicial opinion in favour of the view that the principles of justice, equity and good conscience applicable in such circumstances should be identical with the corresponding relevant rules of the Common Law of England. A small minority favours the view that the principles of the Common Law of England. A small minority favours the view that the principles of justice, equity and good conscience should be identical with the rules embodied in the Indian Penal Code."
(3.) The parties also cited the following decisions : i) State of Orissa VS- Sudhansu Sekhar Misra and Others, 1968 AIR(SC) 647. ii) P.D. Lakhani & Anr. VS- State of Punjab and Another, 2008 5 SCC 150 iii) M.A. Rumugam VS- Kittu alias Krishnamoorthy, 2009 1 SCC 101.;