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Shamsher Singh Vs. H.S. Malik - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) No. 114 of 1981
Judge
Reported in22(1982)DLT1
ActsEvidence Act, 1872 - Sections 132; Code of Criminal Procedure (CrPC) , 1973 - Sections 200
AppellantShamsher Singh
RespondentH.S. Malik
Advocates: K.K. Sud, Adv
Cases Referred and Balraj Khanna & Others v. Moti Ram
Excerpt:
.....the accused. - - no doubt, having regard to the placement of the respetodent viz-a-viz the learned magistrate, this argument would appear to be quite specious and attractive at first sight but it vanishes like the morning dew when an objective and dispassionate scrutiny is made. they are distinctly defamatory, within the meaning of s. 499-and as such, whether they were written in haste or in anger, the respondent is clearly responsible, and unless she can show that her case falls within any of the exceptions to the section, it was and is impossible for her to resist a verdict of guilty. (8) the-learned counsel for the petitioner has then canvassed with considerable fervour that the learned magistrate failed to notice that the offending statement was made by the petitioner during..........expressed the view that: 'thefear of punishment under section 179 (ipc) does. compel awitness to answer questions, but this is a compulsion which acts against every witness and is inherent in the very idea of a person's being a witness. there cannot be a witness who is not so compelled; when still s. 132 refers to.a witness being compelled to answer a certain question, it evidently refers to some other compulsion , e.g. compulsion with 'special reference to the question.'their lordships further observed that: 'themain provision lays down that if a witness begs to be excused from answering a question on the particular ground, his prayer shall be rejected. . .. if be answers the question even though it will expose him to a penalty without any protest or hesitation or prior refusal to.....
Judgment:

J.D. Jain, J.

(1) The petitioner is employed as an Inspector in Delhi Police. In July 1976 he v-'as posted as an Inspector in AntiCorruption Branch of Delhi Police. On 1st July, 1976, he lad a trap against one Raj Singh on the complaint of one Ram Chander for demanding illegal gratification. Raj Singh was subsequently tried under the Prevention of Corruption Act (hereinafter referred lo as the Act), being case No. 50176. State v. Raj Singh in the Court of Shri D.C. Aggarwal, Special Judge, on 18th November, 1977 the petitioner was examined as a prosecution witness being the investigating Officer. During the course of his cross-examination. he, inter alia, deposed that :

'TWOcases for damages against me, Union of India S. D. M. were filed by Shri H.K. S. Malik through his brother and mother sinise I had not obliged him in forcibly occupying plot No. C-5, Rana Pratap Bagh. There is a complaint case against me pending regarding the same plot since I did noi oblige Sh. H. K. S. Malik for convening a civil case into a criminal case regarding the same plot. It is a complaint for not registering the case.'

(2) On coming to know of it, the respondent then posted as Additional District Sessions Judge at Delhi instituted a complaint. against the .petitioner in December 1977 under sectin 500, Indian Penal Code, for defamation. He inter alias .averred that the petitioner was posted as Station House.Officer, Kingsway Camp 1975. On 30th.July, 1975, he tortured to.death on Harnam Singh, a retired School teacher of Kingsway Camp even though there was no FIR.against,.him, An.attempt was made to dispose of. the dead body without postmortem examination. The respondent intervened and. postmortem examination had to be carried out. Consequently, an inquiry under the Punjab Police, Rules was instituted and the respondent was examined as a witness in that inquiry on 14th June, 1976, by the S. D. M. Kingsway Camp. .The S.D.M found the accused prima facie guilty of murder and submitted his report I accordingly. Eventually, acase under Section 302, Indiain penal Code, being F.I.R. No. 1009 was registered against the petitioner on 9th September, 1977 and the respondent was mentioned therein as the prime mover. The respondent further alleged that the petitioner had been trying to prevent him from appearing as a witness against him in the said case since July 1976 and he had conveyed even.threats. Further, the petitioner met the respondent personally three or four times with a request not to depose as a witness against him but the respondent was not disuaded from doing his dirty. So, the petitioner considers the respondent as his enemy. On 31st October, 1977, the respondent learnt of a plan to murder him at night and he took immediate precautions. However, one SatpalSharma,who was an eye witness in the aforesaid murder case, was brutally stabbed on that night. But he survived just by providence. Since.then.the Government had provided security to the respondent for his protection. Thus, the contention of the respondent in the complaint was that the petitioner harboured a grudge against him and, thereforee, he made the aforesaid statement in the Court of the Special Judge with a view to harm the reputation of the respondent. He asserted that the aforesaid statement carried, inter alia, an imputation that the respondent was a person of depraved moral character as to commit acts' which constituted offences punishable under the Indian Penal Code. While denying each and every imputation made against him by the petitioner, he asserted that the same had been made intentionally and knowingly to lower the moral character of the respondent in the estimation of others. In order to substantiate his contention he extracted the following passage from the judgment dated 26th November, 1977, of Shri D. C. Aggarwal, Special Judge, in the above mentioned case :

'INthese circumstances it has to be taken notice of that as against Inspector .Shamsher Singh, admittedly a murder case was registered at Police Station Kingsway Camp although according to him it was a false case. Of course, I would not attach importance to the case of damages filed against him by Shri H. K. S. Malik (now Additional District Judge) as derogatory to his credibility as police officer, as he explained that that case had been filed only because he had not allowed Shri H. K, S. Malik and his mother to ford' bly Occupy a plot No. C-5 Rana Pratap Bagh.' .

(3) It was urged by the respondent that the impression formed by the defamatory statement in the mind of the Special Judge was indicative of the harm caused to his reputation by the same.

(4) The respondent was examined in the capacity as a complainant on the very day of filing the complaint, viz., 3rd December, 1977. On the same day the learned Magistrate passed an order summoning the petitioner for trial under section 500, Indian Penal Code. It appears that the petitioner filed a .revision petition against the said order, being Criminal Revision No. 63178. However, he withdrew the same later on 7th February, 1978. In the meanwhile, he entered appearance before the Metropolitan Magistrate. The substance of the accusation was read over and explained to him on 13th January, 1978, as required by Section 251, Code of Criminal Procedure (for short the Code), and he was asked to show cause why he should not be punished for an offence punishable under Section 500, Indian Penal Code. Feeling aggrieved, the petitioner has come up in revision against the said order.

(5) The learned counsel for the petitioner has submitted at the very outset that the impugned order has been. made by the learned Magistrate in unholy haste and without applying his judicial mind apparently because the respondent being an Additional District & Sessions Judge, was' his superior officer. He has pointed out that the learned Magistrate examined the respondent on the very day he had filed the complaint and hastened to summon the petitioner by a cryptic Order of the same day without staling reasons thereforee and that on a mere juxia position of the deposition of the respondent in Court and the complaint in question, it will .be abundantly clear that the respondent was permitted to lift passage verbatim from the complaint. No doubt, having regard to the placement of the respetodent viz-a-viz the learned Magistrate, this argument would appear to be quite specious and attractive at first sight but it vanishes like the morning dew when an objective and dispassionate scrutiny is made. Section 200 of the Code lays' down the procedure to be followed by a Magistrate -taking cognizance of an offence on a complaint. It requires the Magistrate to examine upon oath the complainant and the witnesses present, if any. Thus, a duty was cast upon the Magistrate to examine the complainant and his witnesses, if any, present at that time. The object of such an examination is evidently to ascertain the facts constituting the offence. It is a very valuable safeguard against filing of false complaints. It may be noticed that Section 200 in the old Code required that the Magistrate must examine the complainant 'at once' in order to emphasise that such examination was in every case an immediate step to be taken. However, having regard to the practical difficulties and factual controversies which sometimes arose because of some time ipterval, between .the. receiving of a .complaint and the complainant's examination, the legislature has thought it fit .to omit the words 'at once'. All the same, there can be no doubt about the legislative intendment that the examination of the complainant should be recorded at the earliest possible opportunity. Thus, the learned Magistrate did no favor to the respondent by examining him at once. He only performed his duty in ordinary course of his official business. However, it would appear that the complainant did not produce any other witness in support of his complaint at that time. Evidently having regard to .the nature of allegations in the complaint, he did not consider it necessary to do so. 'Hence, he did nothing improper or in undue .haste .which would warrant an aspersion or reflection on the conduct of flie learned Magistrate, As for the passages quoted from deposition of the petitioner in-the Court of the Special Judge and the judgment of the learned Special Judge, it would no doubt appear that the same were lifted verbatim from the complaint but that would hardly be a ground to impute partiality or favortism to the learned Magistrate. It was hardly possible for the complainant to reproduce verbatim what had been stated by the petitioner during the course of his evidence or what .the learned Special Judge had observed in the course of his judgment just from memory. So, there was nothing- extra-ordinary or unusual in .lifting the same bbdily from the complaint. It may be .pertinent to add here that while Section 203 casts' a 'duty on the Magistrate to briefly record-his reasons for dismissing the complaint no such statutory obligation is envisaged in Section 204 under which he is simply to issue a process on forming an opinion that there is sufficient ground for proceeding against the accused. Of course, the desirability of recording a speaking order even under Section 204 can never be minimised. The learned counsel for the petitioner is indeed unfair to the Magistrate by casting aspersion on his conduct on- mere flimsy grounds. He is smelling a rai where there is

(6) The next submission of the learned counsel for the petitioner is-that file essential ingredients Of offence of defamation as defined in Section 499 are absolutery lacking inasmuch as the alleged defamatory statement was made by the petitioner during the course of his cross examination and he was., legally bound to answer the questions put to him, more so when his own credit was sought to be impeached by putting questions which tended to cast reflection on his integrity and character. Thus, the dominant intention in making the so-called defamatory statement was to safeguard his own interest and the question of any intention on the part of the petitioner to harm the reputation of the respondent did not arise. It is urged that the intention on the part of the accused to harm the reputation or the knowledge that it will harm the reputation is very essential. At any rate, no harm is proved to have been actually caused. I do not find any substance in this contention for the simple reason that the imputations against the respondent being per se defamatory Explanationn 4 of Section 499 will not be attracted. In the words of Straight, J., in Queen-Empress v. McCarthy, I.L.R. 9 All. 420 :

'........Explanation 4 of S. 499, they are answered by the observation that that Explanationn does not apply where the words used and framing the basis of a charge are parse defamatory. When an expression, used verbally or in writing, is doubtful as to its significance, and some evidence is necessary to decide what the effect of that expression will be, and whether it is calculated to harm a particular person's reputation, it is possible that the principle enunciated in Explanationn 4 of S. 499 might, and would with propriety, be applied. But in this case there is no question as' to the significance or meaning of the words written. They are distinctly defamatory, within the meaning of S. 499-and as such, whether they were written in haste or in anger, the respondent is clearly responsible, and unless she can show that her case falls within any of the Exceptions to the section, it was and is impossible for her to resist a verdict of guilty.'

The defamatory writing made by Mrs. McCarthy in the said case was that :-

'MRS.McCarthy will take no notice of anything written by H. G. Scott, he already having shown himself a coward dishonest man, and something worse than either.

(See also Mohan Lal v. Ram Charan, Air 1928 All. 2139.

(7) I am in respectful agreement with the view expressed by Straight, J. The statement of the petitioner in the instant case too is per se defamatory inasmuch as he has caused serious aspersion on the character and integrity of the respondent who is a judicial officer, by saying that He wanted to forcivly occupy plot No. C-5, Rana Partap Baghand that he wanted the petitioner to convert a civil case into a criminal case regarding the said plot but the petitioner refused to oblige him. Such an insinuation, if proved to be true, will not only be derogatory of his character as an individual but will also amount to an offence punishable under law. That apart, the very fact that the learned Special Judge was disposed to accept the Explanationn furnished by the petitioner with regard to the suits for damages etc. as plausible is indicative of the extent of mischief and the harm which could be caused to the respondent thereby. The petitioner being a fairly senior police official can be credited ex-facie with the knowledge if not the intention that such animputation would harm the reputation of the respondent. Hence, the contention of the counsel for the petitioner that the- defamatory statement in the instant case is Jacking in essential ingredients of the offence of defamation is absolutely devoid of any merit.

(8) THE-LEARNED counsel for the petitioner has then canvassed with considerable fervour that the learned Magistrate failed to notice that the offending statement was made by the petitioner during the course of his cross-examination, that the statement was made by him in answers to the questions put to him to shake his credit by injuring his character, that thereforee he was compelled to answer those questions and he is entitled to protection under Section 132 of the Evidence Act. It is pointed out that the learned Magistrate could not on his own foresee that the offending statement extracted in the complaint was made during the cross-examination and it was the respondent-complainant to have indicated so. However, the respondent deliberately misled the Magistrate by suppressing this fact. Further, according to him, the petitioner was obliged to give self incriminating answers for the protection of his own interest and he did so in good faith. He was thus saved by 9th Exception to Section 499.

(9) This contention of the petitioner's counsel cannot be entertained at this stage because it will amount to pre-judging his whole defense. Under the English Law, on the ground of public policy, a witness in Court is absolutely privileged and no action lies against in respect of his statement in the witness box. However, in India a person, as a witness, cannot claim protection beyond what is contained in the proviso to Section 132. The said Section reads as follows :

'Awitness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind; Provided that no such answer, which a witness shall be compelled to give shall subject him to any arrest or prosecution, or beproved against him any criminal proceeding except a prosecution for giving false evidence by such answer.'

(10) It is thus' crystal clear that a Statement made by a witness in answer to a question which he is compelled to answer will not subject him to prosecution under Section 500 even it the answer is defamatory of some person. However, in the absence of such compulsion the proviso to Section 132 will not apply and he will not be protected there under. Of course, he can still escape lability if he can come under any of the exception of Section 499. The proviso mitigates the rigour of the general rule contained in 'Section 132 and-protects him from any prosecution in consequence of any answer that he is compelled to give except a prosecution for giving false evidence by such answer.

(11) Being quite conscious of this limitation, the learned counsel for the petitioner has made a vain bid to urge that the compulsion referred to in the proviso includes the compulsion by the general and common law of the land and that there need not tie such compulsion by the presiding officer of the.Court. Reliance has been placed by him. in support of this argument on Chatur Singh & others v. Emperor A I R 1921 All 362, Ganga Sahai v. Emperor : AIR1920All140 and Rajinder Singh v. The State, . In the first of these cases, Tudball J., observed that :

'Avoluntary statement by a witness may stand on a totally different footing to an answer given by him as a witness on oath to a question put to him either by the Court or counsel on either side, specially when the question is air.a point which is relevant to the .case. It would be too .much to ask of an ordinary layman that he should know all the terms of Section 132 of the Indian Evidence Act and that he should be prepared to protest against every question put to him in order to protect himself under that section. I think, if a common sense meaning be given to the word 'compelled' in Section 132, it is clear that in. the present case these five persons were compelled to answer. They were under the direct compulsion of the law and of the Court and in my opinion they were protected by that section.'

(12) However, this broad proposition has not been accepted even by that High Court in subsequent decisions. In King Emperor v.Banarsi Air 1924 All 381, a Division Bench of that High Court observed that :

'COMPULSIONunder that section is a question of fact. It by no means follows that the witness is compelled to answer every question put by Counsel.'

(13) Still latter another Division Bench of the same Court examined this question at considerable length. The learned Judges. expressed the view that:

'THEfear of punishment under Section 179 (IPC) does. compel awitness to answer questions, but this is a compulsion which acts against every witness and is inherent in the very idea of a person's being a witness. There cannot be a witness who is not so compelled; when still S. 132 refers to.a witness being compelled to answer a certain question, it evidently refers to some other compulsion , e.g. compulsion with 'Special reference to the question.'

Their Lordships further observed that:

'THEmain provision lays down that if a witness begs to be excused from answering a question on the particular ground, his prayer shall be rejected. . .. if be answers the question even though it will expose him to a penalty without any protest or hesitation or prior refusal to answer it, he is not compelled, and the consequence laid down in the proviso will not arise.'

(See Chotkan v. State & Others, : AIR1960All606 ).

(14) With respect this appears to be the correct exposition of the implication underlying the proviso to Section 132. The same view has been expressed by a number of other High Courts. In Hemraj Poonamchand v. Babulal Bhagirath, : AIR1962MP241 , a Division Bench of Madhya Pradesh High Court said :

'THEcompulsion in section 132 1s not the general latent compulsion over every witness, but something definite and express. The record itself should indicate that the witness was really unwilling to make the statement concerned and was' being pulled up by an insistent Court to give an answer. . ...... ............. But if tile witness goes on without showing the least hesitation or asking the Court to excuse him, then on facts, where is no compulsion.'

(15) Reference in this contest may also be made to Surajmal v.Ramnath, , Chotelal Bhurelal Jain v. Phulchand Ramchand Jain, Air 1937 Nag 138, Bai Shanta v. Umrao Amir Malek, AlR 1926 Bom 141 (10) and The Queen v. Gopal Doss and another, Ilr, 3 Mad 271. In the last mentioned authority Turner, C. J., pointed out that the words 'shall be compelled' are the correlative of the words

'SHALLbe excused' occurring in the main provision and presuppose the testimonial duty to speak the truth and they also suggest that the witness has objected to the question, and has sought and been refused excuse and even constrained to answer' (276).

(16) Thus before protection can be claimed by a witness he must show that he was compelled by the Court to answer in spite of his protest or unwillingness. It may be that in a given case the judicial record does not depict the events truly in the sense that that objection, if any, raised by the witness and its rejection by the Court is not specifically recorded but in order to come under the protection of the proviso the witness' must prove that he had made some sort of formal objection' or protest before answering the question. Any attempt at this stage to speculate about the nature of the questions put to the petitioner will be prejudging the issue. Moreover, the offending statement must have some ccrnnection with the proceedings and must not have been made want only. If instead of giving straight answer, yes or no, the witness starts abusing a person who is not even a party to the proceeding or flinging mud at him he must be deemed to have crossed the boundary at which irrelevance takes him outside his; office as witness. Hence, it is for the trial court to decide whether the defamatory statement in the instant case was made by the petitioner gratuitously or maliciously or not.

(17) Similarly, it is well settled law that the onus of proving that the case of 'the accused falls within any of the exceptions to Section 499 lies on him. The Couyt cannot at the stage of preliminary inquiry under Sections 202, 203 or 204 of the Code take up the question of good faith etc. which will entitle an accused to. the benefit of any of the exceptions. (See Harbhajan Singh v. State of Punjab & another : 1966CriLJ82 and Sewakram Sobhani v. R. K. Karanjiya, : 1981CriLJ894 ). The object of inquiry under Section 202 is simply to ascertain whether the allegations made in the complaint are intrinsically true and the Magistrate has to satisfy himself that there are sufficient grounds' for proceeding. In order to come to this conclusibn he is entitled to consider the evidence taken by him or recorded in an inquiry under Section 202 or statements made in: an investigation under that Section, as the case may be. He is not entitled to rely upon any material beside those. (See Chandra Ded Singh v. Prokash Chandra Bose, : [1964]1SCR639 , Nirmaljit Singh Hoon v. .The State of West Bengal & Others, : [1973]2SCR66 and Balraj Khanna & Others v. Moti Ram, : 1971CriLJ1110 ). In the last mentioned case the Magistrate had dismissed the complaint, inter alia, holding that the resolution passed by the Standing Committee of the Municipal Corporation of Delhi and the discussion proceeding it were covered by excep tions to Section 499. Indian Penal Code and hence the appellants were well within their rights in passing a resolution recommending suspension of the respondent. This reasoning of the Magist rate was not approved by this Court and the order of the Magistrate dismissing the complaint was set aside.. The Supreme Court concurred with the High Court and: observed that :

'INour opinion, the question of the application of the Exceptions to Section 499, 1. P. C. does not arise at this stage.................................... ... It is needless to state that the question of applicability of the Exceptions to Section 499. Indian Penal Code as well as all other defenses that may be available to the appellants will have te be gone into during the trial of the complaint.'

(18) To sum up, thereforee, the impugned order does not suffer from any legal or factual infirmity. It may, however, be made clear that all the defenses which the learned counsel for the petitioner has sought to urge before this Court will be open to him at the stage of trial. This petition is, thereforee, dismissed as being without any merit.


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