In CRIM APPL.No.602 of 2018-BOM HC- For inviting provisions under sections 499/500 of IPC, Magistrate has to consider if requirement of mens rea which is mandate for criminal defamation is fulfilled: Bombay HC
Justice Anil S. Kilor [28-11-2022]

 

Read Order: MADANGOPAL S/O. BANARASILAL JALAN AND ORS V. PARTHA S/O. SARATHY SARKAR

Mansimran Kaur

Nagpur, December 2, 2022: The Nagpur Bench of the Bombay High Court has clarified the position relating to criminal defamation by observing that if mens rea or criminal intention is lacking or is missing in the act of the accused, he cannot be held guilty for an offence of defamation within the meaning of Section 499.

Justice Anil S Kilor allowed the application preferred by the applicants in the case under Section 482 of the Code of Criminal Procedure , challenging the correctness of the order of the Judicial Magistrate First Class, issuing process against the applicants for the offence punishable under Section 500 of the Indian Penal Code (IPC).

The Bench was of the view that the Magistrate had mechanically issued the process against the applicants without applying his minds to the essential ingredients of Section 499 as well as without examining the role of the applicants individually and whether there was any vicarious liability against them. 

Factual matrix of the case was such that the non- applicant while working on the post of General Manager in Future Generali India Life Insurance Company Limited, was informed through  a letter that his services were no longer required and was asked to  not report for duty.

A Special Civil Suit came to be filed against the Managing Director and Chief Executive Officer of the Company, the Company and the Country Manager of the Company, for declaration and for loss caused on account of illegal termination of employment and for loss of reputation and consequent hindrance of opportunity for suitable employment and for unwarranted mental torture. 

The non-applicant claimed Rs.1, 00, 00,000 against the defendants with future interest. On finding the written statement filed by the defendant as defamatory, the non-applicant filed a criminal complaint under Section 200 of Cr.P.C. 

The Judicial Magistrate First Class issued summons against accused persons.The Accused persons preferred Revision Application. Thus, in the backdrop, a reference was made to the statement in the written statement about sexual harassment. The non-applicant considered the same as defamatory and filed another Summary Criminal case.

In the said case, the applicants were again made as accused.  The Magistrate thereafter, passed an order, issuing process against the applicants for the offence punishable under Section 500 of the IPC. Thus, this appeal was filed.

After considering the rival contentions, the Court referred to the judgment of the Supreme Court in Kartik Chandra Majee vs. State of Jharkhand and reiterated that issuance of process in a criminal case is a serious matter and Criminal Law cannot be set into motion as a matter of course. Hence, as per the Bench, it couldnot be said that the applicants are not aggrieved persons. Accordingly, the objection to the maintainability was rejected.

With respect to the proceedings under Section 482 of the CrPC, the Bench opined that the present proceeding was arising out of a complaint between private parties, therefore, the State was not the necessary party in the present proceedings. 

Further with respect to the commission of offence under Section 499 of IPC, the Court opined that mere publication of an imputation by itself may not constitute the offence of defamation unless such imputation has been made with the intention, knowledge or belief that such imputation will harm the reputation of the person concerned. 

Therefore, the intention or knowledge to cause harm is the essential ingredients to constitute the offence under Section 499 of IPC, the Court further remarked. 

In order to examine the law on issuance of summons, the Court placed reliance on the cases, namely Pepsi Foods Ltd. vs Special Judicial Magistrate, Mehmood Ul Rehman vs Khazir Mohammad Tunda and Sunil Bharti Mittal vs  CBI. 

In view of the same, the Court noted that it was evident from the impugned order that the Magistrate had not at all dealt with the mens rea or criminal intention. “Even he had not considered whether sufficient pleadings were  made by the non-applicant as regards mens rea or criminal intention of the applicants as the mens rea is sine qua non to attract Sections 499/ 500 of IPC”, the Bench further added.

Thus, the Court had no hesitation to hold that in this case mens rea or criminal intention was lacking or for want of necessary pleadings it was missing in the act of the applicants and therefore, they cannot be held guilty for the offence of defamation within the meaning of Section 499 of IPC. 

Further to examine  that when a  Company, an artificial person acts through its officers, directors, managing directors chairman etc., if commits an offence, who would be responsible for any action, reliance was placed on the case of Sunil Bharti Mittal vs. CBI. 

It was evident from the impugned order of the Magistrate that he has not recorded his satisfaction about the prima facie case against the applicants individually and in their official capacity in the company, which is sine qua non for initiating criminal action against them, the Court further stated.  Hence, in view of such observations, the present application was allowed.