2018 (8) TMI 2013 - HC - Indian Laws

Principles of natural justice - Content of legal notice issued by petitioner - offence of defamation under Section 499 of IPC - allegation is that without considering any aspects, merely on the basis of a self serving statement of the complainant the learned Magistrate has issued summons to the petitioner to face trial for the alleged offences - HELD THAT - The essence of Section 499 of IPC is the publication of imputations concerning any person with the intention to harm, knowing or having reason to believe that such imputations will harm the reputation of the person and they must be made or published to any person other than the person concerning to whom it is written or made - Publication has been explained by the Bombay High Court in the above decision cited by the learned counsel for the petitioner and it is stated therein What is publication? Making a defamatory matter known after it has been written to some person other than the person for whom it is written is a publication in its legal sense. A defamatory matter must, therefore, be communicated to some person other than the person concerning whom it is written. Communicating a defamatory matter to the person concerned only cannot be said to be a publication. It is not the case of the complainant that the contents of the legal notice sent by the petitioner were published by him to any person other than the complainant. According to the complainant the notices were sent through post to his registered address. It has to be presumed that when a registered notice is sent to the last known address it is meant to be opened and read by the person concerned and not by any other person. In the absence of any allegation that such letters were in fact opened and read by the employees or any other persons other than the addressee, the complainant cannot contend that the petitioner had any intention to make a publication of the said contents of the notice to any outsiders. The complainant has not even examined any of his employees to show that the letter sent by the petitioner were opened by any of his employees and they had read the contents thereof - As a result, there was no communication or publication of the contents of the said notices/complaints within the meaning of Section 499 of IPC. Contents of legal notice - HELD THAT - Going by the assertions made by the complainant, the allegation made in the said notice that the petitioner was harbouring offender in whose name there is a case pending in Patna High Court is defamatory in nature. Of course, no material is produced before this Court or before the trial Court to show that the said statement is a false statement. Even assuming that the complainant was not harbouring any of the person, or any of his employee as alleged in the notice, yet in the absence of any material to show that the said statement was made with an intention to defame the petitioner, in my view the rigors of Section 499 do not get attracted - the averments made in the private complaint and the statements made in the sworn statement of the complainant do not make out the ingredient of the offence under Sections 499 and 500 of the Indian Penal Code in so far as the petitioner is concerned. There is nothing in the impugned order to indicate that the learned Magistrate has conducted any enquiry as contemplated under Section 202 of the Cr.P.C. In any case, the complainant himself having failed to make out that the allegations contained in the legal notice issued by petitioner were defamatory in nature and that they were made/published with an intent to harm reputation of the complainant the prosecution of the petitioner is wholly illegal and cannot be sustained. The continuation of the proceedings against the petitioner is an abuse of the process of law and therefore liable to be quashed - petition allowed.

Summary

Issues:
1. Allegations of defamation under Sections 499 and 500 of the Indian Penal Code against an advocate.
2. Jurisdictional aspects regarding the issuance of summons without conducting an enquiry under Section 202 of the Cr.P.C.
3. Examination of whether the legal notice sent by the advocate constitutes defamation under Section 499 of IPC.

Analysis:

Issue 1: Allegations of Defamation
The petitioner, an advocate, was summoned to face charges under Sections 499 and 500 of the Indian Penal Code for issuing a notice on behalf of accused No.1. The complainant alleged that the notice was intended to defame him by addressing it to his office, leading to the employees knowing its contents. However, the Court noted that there was no evidence that the notice was read by anyone other than the complainant. The Court emphasized that for defamation, imputations must be published to a third party, which was not proven in this case. The Court found no evidence that the advocate intended to harm the reputation of the complainant, thus dismissing the allegations of defamation.

Issue 2: Jurisdictional Aspects
The petitioner argued that the trial court failed to conduct an enquiry under Section 202 of the Cr.P.C., especially since the petitioner resided in a different state. The absence of such an enquiry before issuing summons was considered a violation of procedural requirements. The Court highlighted that the prosecution of the petitioner was illegal due to the lack of evidence supporting the defamation allegations. Therefore, the continuation of proceedings against the petitioner was deemed an abuse of the legal process and was quashed.

Issue 3: Examination of Defamation Allegations
The complainant, a CEO, claimed that the legal notices sent by the advocate were defamatory. However, the Court observed that there was no proof that the contents of the notice were communicated to any third party other than the complainant. Additionally, the Court found no evidence to suggest that the advocate intended to harm the reputation of the complainant. The Court concluded that the allegations of defamation under Section 499 of IPC were not substantiated, as the complainant failed to demonstrate that the notice caused harm to his reputation or was communicated to others. As a result, the Court quashed the proceedings against the petitioner in the case.

This detailed analysis of the judgment addresses the issues raised in the legal matter, providing a comprehensive understanding of the Court's decision and the reasoning behind it.