Md. Kamar Uddin Chowdhury Vs. The State & anr, (Muhammad Khurshid Alam Sarkar, J.)

Case No: Criminal Miscellaneous Case No. 21673 of 2012

Judge: Muhammad Khurshid Alam Sarkar, J.

Court: High Court Division,

Advocate: Mr. M. A. Mubin, Dr. Md. Zahedul Haque, Advoate,

Citation: 2018(1) LNJ

Case Year: 2018

Appellant: Md. Kamar Uddin Chowdhury

Respondent: The State and another

Subject: Penal Code (XLV of 1860), Code of Criminal Procedure (V of 1898)

Delivery Date: 2018-07-04

HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION)

Md. Rezaul Haque, J

And

Muhammad Khurshid Alam Sarkar, J.

Judgment on

08.02.2018

}

}

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Md. Kamar Uddin Chowdhury

...Accused-petitioner

(On Bail)

Versus

The State and another

. . .Respondents

Penal Code (XLV of 1860)

Sections 499 and 500

When any person verbally or in written form or by gesture or in the form of drawing makes or publishes derogatory utterances or remarks about a natural or juristic person with a motive to harm such person and if making or publishing of the aforesaid utterances or remarks are not excepted by any of the ten Exceptions provided in Section 499, s/he commits the offence of defamation and is liable to be punished with simple imprisonment for two years at the highest or with fine or with both.          . . . (10)

Code of Criminal Procedure (V of 1898)

Sections 195 to 199

Section 195 to 199 of the CrPC under this Chapter put restriction on the general power conferred upon all Courts of the Magistrate by Section 190 of the CrPC to take cognizance. To state the law more specifically for the purpose of resolution of the case in hand, all that we wish to say that while generally any person without being personally aggrieved may file a complaint of criminal offence, provision of Section 198 CrPC is an exception to the above rule.                                       . . . (13)

Code of Criminal Procedure (V of 1898)

Section 198

Given the style of expression by the Legislature in the main part of Section 198 of the CrPC “No Court shall take cognizance of an offence------------------ except upon a complaint made by person aggrieved by such offence”, we hold that it is a mandatory provision and, as such, the trial and conviction of an accused would be illegal if the Magistrate takes cognizance of the offence of defamation on a complaint filed by a person who is not personally aggrieved. In other words, a mandatory condition is set by the Legislature for the learned Magistrates who are empowered to take cognizance. The condition is that in respect of the offence of defamation, the learned Magistrate must be satisfied, at first, that the complaint has been brought to the notice of the Court by an aggrieved person. This restriction on the Magistrates’ power to take cognizance of defamation serves the rational purpose of discouraging the filing of frivolous complaints which would otherwise clog the Magistrates’ Courts. However, the Proviso to Section 198 of the CrPC keeps provisions for certain categories of aggrieved persons, such as dead persons or the persons who are otherwise unable to initiate legal proceedings, to make their complaint on their behalf by other person upon taking prior permission from the Court. The word “infirmity” in Proviso to Section 198 should not be read to mean infirmity resulting from only ill-health or age. The expression “infirmity” cannot be understood in any limited or restricted sense. Infirmity under the Proviso to Section 198 CrPC must be held to hold within its sweep any deficiency, debility, disability, impossibility, difficulty or inadequacy, which the Court finds to be reasonable and sufficient to dispense with the personal appearance of the complainant to present the complaint. . . . (14, 15 and 19)

Penal Code (XLV of 1860)

Section 500

Code of Criminal Procedure (V of 1898)

Section 198

Accordingly, if any defamatory statement, without attacking on chastity of a girl or woman, is made against the family member who is involved in the alleged illegal activity, the other family member/s does not become defamed. Therefore, we hold that when a person makes defamatory statement about a family member on the issue of financial transactions or political affairs or religious practice etc, then, only the person/s about whom the alleged defamatory statement has been made, is to be taken as aggrieved person. Even in the aforesaid scenario, rooms to bring complaint by the family members are not totally closed, for, the family members may file case under Section 500 of the Penal Code on behalf of the aggrieved person with the leave of the Court, but not claiming himself/herself as an aggrieved person, subject to the condition that the aggrieved person’s situation is covered by the Proviso to Section 500 of the Penal Code. However, the family member may claim herself/himself to be an aggrieved person in filing a case under Section 500 of the Penal Code, if it is found that defamatory utterance/remarks is about chastity of a girl/woman of his/her family aiming at vilifying the image of the family and not the female alone, for, in our country the imputation of unchastity of a female makes the whole family liable to social ostracism. In the given facts of the present case, thus, the complainant having not been personally defamed or the alleged utterance being not about chastity of a female member of his family, we are unable to see how the complainant can be properly described as “person aggrieved” within the meaning of Section 198 CrPC. The complainant in this case, being not a person aggrieved and having not taken power of attorney from the defamed persons, is not competent to file case under Section 500 of the Penal Code and, thus, taking of cognizance by the learned Magistrate was a blatant violation of the mandatory provisions of Section 198 of the CrPC and, hence, the proceedings in question are liable to be quashed.           . . . (18 and 20)

Code of Criminal Procedure (V of 1898)

Sections 439 and 561A

This Court simply reiterates here the settled principle that no second revision is permitted in our procedural law, which is in place for administration of our criminal justice. It is no more res integra in our jurisdiction that an applicant may seek quashment of not only an order of revisional Court, but also the Judgment and Order of conviction and sentence passed by the revisional Court, (i) if the issue raised before this Court is with regard to jurisdiction of the Court or (ii) if it is challenged that the conviction is based on no evidence or (iii) the facts alleged against the accused do not constitute any criminal offence or (iv) otherwise to secure ends of justice.In this case, the accused has agitated the issue of jurisdiction of the learned Magistrate who took cognizance of the offence against the accused and, thus, we hold that this quashment petition is squarely maintainable.      . . .(21 and 22)

Mr. M. A. Mubin with

Mr. Sayem M. Morad, Advocates,

. . . For the accused-petitioner

Dr. Md. Zahedul Haque, Advoate

. . . For the complainant-opposite party No. 2

JUDGMENT

Muhammad Khurshid Alam Sarkar, J: The above named accused-petitioner (hereinafter referred to as the accused or the petitioner or the accused-petitioner) filed this application, by invoking this Court’s power under Section 561A of the Code of Criminal Procedure, 1898 (CrPC), in an expectation to quash the Judgment and Order dated 19.02.2012 passed by the Sessions Judge, Sylhet in Criminal Motion No. 169 of 2011 rejecting the motion and upholding the order of framing charge dated 17.08.2011 passed by the Senior Judicial Magistrate, 2nd Court, Sylhet in Beanibazar C.R. Case No. 35 of 2010 under Section 500 of the Penal Code. 

2.             The background of issuance of this Rule, briefly, is that one Mr. Mukammel Ali Chowdhury, as the complainant, filed a petition of complaint before the Judicial Magistrate, Sylhet for taking cognizance against the accused with an allegation that the accused has committed an offence under Section 500 of the Penal Code. The basis of raising the aforesaid allegation is publication of a report in a national newspaper, namely the Daily Jugantor, on 19.06.2010 under the heading of “allegation of misappropriation of money against three Imams of Beanibazar living in London” (weqvbx evRv‡ii jÛb cÖevmx 3 Bgv‡gi wei“‡× A_© AvËmv‡Zi Awf‡hvM). The complainant in his petition of complaint claimed himself as the full brother of Mowlana Mujahid Uddin Chowdhury and real uncle of Mowlana Oliar Rahman Chowdhury and Mowlana Jullur Rahman Chowdhury against whom the report has been published. It is stated that all the above-named three persons (hereinafter referred to as the three NRB) are renowned Islamic scholars who hail from a very respectable family in Sylhet and they currently are rendering religious services in the different metropolitan cities of the UK, and the accused is their former caretaker who was entrusted with the duties of looking after their properties situated in Sylhet. It is alleged that eventually when the accused was fired from his employment, he made the above statements to the reporter of the above newspaper out of grudge with an ill motive of maligning the image of the aforesaid three NRB not only in Bangladesh, but also worldwide by circulating the aforesaid report in the different social media, such as U-Tube, Facebook etc. The learned Magistrate, on receipt of the complaint-petition, examined the complainant under Section 200 of the CrPC and conducted a judicial inquiry by examining 3 witnesses and, thereafter, upon finding a prima facie case, the learned Magistrate took cognizance against the accused under Section 500 of the Penal Code and issued summon against him and, in compliance thereto, the accused surrendered before the Court of learned Magistrate and was released on bail. The accused then filed an application under Section 241A of the CrPC before the trial Court for discharging him from the accusation brought against him. On 17.08.2011, the learned Magistrate of the trial Court after hearing the parties rejected the application for discharge and framed charge against the accused under Section 500 of the Penal Code. Against the aforesaid order dated 17.08.2011, the accused filed Criminal Revision No. 169 of 2011 in the Court of Sessions Judge, Sylhet who initially admitted the said criminal revision and on 19.02.2012 after hearing the parties rejected the criminal revision. Being aggrieved by and dissatisfied with the impugned Judgment and Order dated 19.02.2012, the accused filed this application before this Court and hence is the Rule.

3.             Mr. Abdul Mobin, the learned Advocate appearing on behalf of the accused-petitioner, reads over Section 198 of the CrPC and submits that it puts a bar in initiating a case under Section 500 of the Penal Code by a person other than the aggrieved one. He takes us through the news report published in the Daily Jugantor on 19.06.2010 and contends that the alleged defamatory publication has been made against the brother and nephews of the complainant and, therefore, as he submits, only the brother and nephews of the complainant may be aggrieved by such publication; not the complainant himself. He then reads over the provisions of Sections 499 & 500 of the Penal Code and submits that the alleged defamatory news having been published in the Daily Jugantor and the accused-petitioner not being a publisher, or an editor, or even a reporter of the said newspaper, he cannot be made liable for such publication. He strenuously submits that without implicating the publisher, editor and reporter of the newspaper in this case, going for an action against only the accused-petitioner suggests that it is a malicious case and, thus, not tenable in law. In support of the above submissions, Mr. Abdul Mobin refers to the cases of  (i) Kamal Chand Vs. Amer Chand, AIR 1952 MB 180, (ii) G. Narasimhan Vs TV Chokkappa (1973)22 SCR, (iii) Shanta Devi V. Scutodian, EP, MB 180 and (iv) S. Khushboo Vs. Kanniammal, (2010) 5 SCC.

4.             By advancing the above contentions and making his arguments, he prays for making the Rule absolute.

5.             Percontra, Dr. Md. Zahedul Haque, the learned Advocate appearing for the complainant-opposite party no. 2, contends that under the camouflage of filing application under Section 561A of the CrPC, the accused-petitioner, in fact, is seeking to have the order of the trial Court revised for the second time by this Court and submits that there is no provision in our CrPC to file a second revision application against the order passed by the Sessions Judge in any revision case. He alleges that the accused is simply trying to delay the completion of trial by filing this fallacious application. In an endeavour to reply to the submissions of the learned Advocate for the accused-petitioner with regard to the issue of standing of the complainant in making the complaint before the Court, Dr. Haque refers to the case of Surajamal Vs. Ramnath AIR 1928 Nagpur 58 and submits that when a family member gets perturbed having felt insulted with the remarks/comments made against any of the family member, then any one from the said family becomes competent to file case of defamation under Section 500 of the Penal Code.

6.             The learned Advocate for the complainant prays for discharging the Rule with a direction upon the trial Court to complete the trial within the shortest possible time. 

7.             After hearing the learned Advocates for the accused-petitioner and the learned Advocate for the complainant, upon perusing the application and the counter-affidavit together with their annexures and on reading the laws and decisions placed before us, it emerges that the following questions are to be answered by this Court (1) whether the allegation brought against the accused-petitioner can be considered as an offence under Section 499 of the Penal Code and, thereby, whether there can be a criminal case against the accused under Section 500 of the Penal Code, (2) whether the complainant is competent to file the present case and (3) whether the present application is a second revision application.

8.             In order to properly adjudicate upon the issue no. 1, let us look at the provisions of Sections 499 & 500 of the Penal Code, which are reproduced below:

499. 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 case hereinafter excepted, to defame that person.

Explanation 1.- …………….

Explanation 2.- ………………

Explanation 3.- ………………

Explanation 4.- ………………

First Exception.- ……………

Second Exception.- ………….

Third Exception.- …………….

Fourth Exception.- ……………

Fifth Exception.- ……………..

Sixth Exception.- ……………..

Seventh Exception.- ……………..

Eighth Exception.- ………………

Ninth Exception.- ……………...

Tenth Exception.- ……………...

(emphasis supplied)

500. Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

9.             While Section 499 of the Penal Code codifies the offence of defamation in tandem with providing four Explanations on this punitive provision and, at the same time, stipulates ten Exceptional situations which do not amount to the offence of defamation, Section 500 of the Penal Code sets out the punishment for committing the offence of defamation.

10.         When any person verbally or in written form or by gesture or in the form of drawing makes or publishes derogatory utterances or remarks about a natural or juristic person with a motive to harm such person and if making or publishing of the aforesaid utterances or remarks are not excepted by any of the ten Exceptions provided in Section 499, s/he commits the offence of defamation and is liable to be punished with simple imprisonment for two years at the highest or with fine or with both.

11.         In the case in hand, the allegations are that the accused has said something with a motive of maligning the character of three reputed Islamic clergies to a journalist and, later on, the said utterings were published in a widely circulated daily newspaper on 19.06.2010. When the complainant approached the learned Magistrate praying for taking cognizance against the accused under Section 500 of the Penal Code, the learned Magistrate appears to us to have dealt with the allegation sensibly and prudently inasmuch as the learned Magistrate opted to undertake judicial inquiry of the allegation, instead of directly taking cognizance of the offence. During carrying out the judicial inquiry, three witnesses deposed before the learned Judicial Magistrate who then forwarded the statements of JWs with his opinion to the cognizance Court. Then, the concerned Magistrate after taking cognizance against the accused-petitioner transmitted the case to the Senior Judicial Magistrate, 2nd Court, Sylhet for trial and, at the time of opening up the case by the prosecution, the accused petitioner filed an application under Section 241A of the CrPC for discharge from the accusation. From a perusal of the aforesaid application for discharge, it appears that the accused-petitioner did not deny making the utterances to the journalist nor did he seek to bring his discourse within any of the Exceptions, out of the ten Exceptions, stipulated to Section 499 of the Penal Code. From a perusal of the statements made by three JWs on top of consideration of the fact that the accused petitioner is not disowning the statements alleged to have made to the journalist of the Daily Jugantor, neither by sending a rejoinder to the said newspaper nor by making statement in his application under Section 241A of the CrPC, we find that apparently there is a prima facie case to prosecute the accused.  

12.         The above resolution on the issue no. 1 leads us to take up examination of issue no. 2, namely whether the complainant is competent to file the petition of complaint under Section 500 of the Penal Code and, for that purpose, now we need to look at the provisions of Section 198 of the CrPC, which is reproduced below:

198. No Court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Penal Code or under Sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence:

 

Provided that, where the person so aggrieved is a woman who, according to the customs and manners of the country, ought not be compelled to appear in public, or where such person is under the age of eighteen years or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other person may, with the leave of the Court, make a complaint on his or her behalf:

Provided further that where the husband aggrieved by an offence under section 494 of the said Code is serving in any of the armed forces of Bangladesh under conditions which are certified by the Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other persons authorized by the husband in accordance with the provisions of sub-section (1) of section 199B may, with the leave of the Court, make a complaint on his behalf. (underlined by us)

13.          The above provision is cataloged in the CrPC under Chapter XV-B which consists of Sections 190 to 199B and the same are regarding ‘Condition requisite for initiation of Proceedings’. Section 195 to 199 of the CrPC under this Chapter put restriction on the general power conferred upon all Courts of the Magistrate by Section 190 of the CrPC to take cognizance. To state the law more specifically for the purpose of resolution of the case in hand, all that we wish to say that while generally any person without being personally aggrieved may file a complaint of criminal offence, provision of Section 198 CrPC is an exception to the above rule.

14.          Given the style of expression by the Legislature in the main part of Section 198 of the CrPC “No Court shall take cognizance of an offence------------------ except upon a complaint made by person aggrieved by such offence”, we hold that it is a mandatory provision and, as such, the trial and conviction of an accused would be illegal if the Magistrate takes cognizance of the offence of defamation on a complaint filed by a person who is not personally aggrieved.

15.          In other words, a mandatory condition is set by the Legislature for the learned Magistrates who are empowered to take cognizance. The condition is that in respect of the offence of defamation, the learned Magistrate must be satisfied, at first, that the complaint has been brought to the notice of the Court by an aggrieved person. This restriction on the Magistrates’ power to take cognizance of defamation serves the rational purpose of discouraging the filing of frivolous complaints which would otherwise clog the Magistrates’ Courts. However, the Proviso to Section 198 of the CrPC keeps provisions for certain categories of aggrieved persons, such as dead persons or the persons who are otherwise unable to initiate legal proceedings, to make their complaint on their behalf by other person upon taking prior permission from the Court.

16.          In this case, admittedly the complainant is the full brother and real uncle of the three NRB against whom the alleged defamatory statements have been made by the accused-petitioner. Now, the question comes up for consideration that the above defamatory statements being a punishable offence under Chapter XXI of the Penal Code, whether a brother or uncle can be an aggrieved person within the meaning of Section 198 of the CrPC. The answer is that since the Legislature’s intention of limited application of the offence of defamation is very much apparent from the language employed in Section 198 CrPC, it would be unfair on the part of the Court to broaden the periphery of the terminology of “aggrieved person”, particularly when the Legislature allowed other persons to file case subject to taking leave from the Court. In course of examining the status of person aggrieved, however, the Court is competent to see whether the alleged defamatory statement is made aiming at defaming only the person/s whose name/s has been uttered or the alleged defamatory statement also defames the family members or members of an identifiable group. If it can be clearly gauged that although the statement is made naming a particular person but, in effect, it defames the members of the family as well, in that event, s/he as a family member/member of the indefinable group can claim that s/he is also defamed and, thereby, s/he is an aggrieved person.

17.          The fact of the case of Surajmal Vs Ramnath AIR 1928 Nagpur 58, referred to us by the learned Advocate for the complainant, is that during making deposition in a civil suit when Surjamal made a defamatory statement assassinating the character of Ramnath’s mother, Ramnath filed a case against Surjamal under Section 500 of the Penal Code. The plea of not being aggrieved personally was overruled by the Court holding that Ramnath, as a son, himself has also been defamed given that by attacking on the chastity of her mother, he has been socially ostracised. However, in the case of Kamal Chand AIR 1952 MB180 when husband filed a case under Section 500 of the Penal Code as an aggrieved person on behalf of the wife, the Court declined to recognize him as an aggrieved person. In the said case, Kamal Chand had brought a criminal case against the wife of Amar Chand alleging that Amar Chand’s wife had stolen Kamal Chand’s silver bunch of Key and when the case was found to be false, Amar Chand filed a case against Kamal Chand accusing him under Section 500 of the Penal Code. The Court found that in bringing allegation against the Amar Chand’s wife by Kamal Chand, Kamal Chand had not accused Amar Chand. The Court then held that the nature of accusation against the wife was an imputation on her personal misconduct; not an imputation on her chastity. The Court, in the given scenario, laid out a ratio that without the imputation of chastity of a girl/woman, a son/husband/father /brother cannot claim to have been defamed. In the cases of G.Narasimhan Vs T.V. Chokkappa (1973) 2SCR 40 and Khushboo Kannimal (2010) 5 SCC, the Supreme Court of India quashed the proceedings under Section 500 of the Penal Code on the ground of lack of standing of the complainants, in addition to finding no offence under Section 500 of the Penal Code.

18.          In this case, the accused allegedly has inveighed against one full brother and two real nephews of the complainant about their financial transactions, but he has said nothing defamatory, scandalous or libelous about the complainant. In a family, while a brother/father /son/husband/sister/wife may be dishonest in dealing with financial matter or political matter or in dealing with any other matter, the other member/s may still earn respect from the society. In other words, because of one of the family member’s engagement in any illegal activity, the rest of the family members’ integrity or morality does not automatically become questionable. Accordingly, if any defamatory statement, without attacking on chastity of a girl or woman, is made against the family member who is involved in the alleged illegal activity, the other family member/s does not become defamed. Therefore, we hold that when a person makes defamatory statement about a family member on the issue of financial transactions or political affairs or religious practice etc, then, only the person/s about whom the alleged defamatory statement has been made, is to be taken as aggrieved person. Even in the aforesaid scenario, rooms to bring complaint by the family members are not totally closed, for, the family members may file case under Section 500 of the Penal Code on behalf of the aggrieved person with the leave of the Court, but not claiming himself/herself as an aggrieved person, subject to the condition that the aggrieved person’s situation is covered by the Proviso to Section 500 of the Penal Code. However, the family member may claim herself/himself to be an aggrieved person in filing a case under Section 500 of the Penal Code, if it is found that defamatory utterance/remarks is about chastity of a girl/woman of his/her family aiming at vilifying the image of the family and not the female alone, for, in our country the imputation of unchastity of a female makes the whole family liable to social ostracism. In the given facts of the present case, thus, the complainant having not been personally defamed or the alleged utterance being not about chastity of a female member of his family, we are unable to see how the complainant can be properly described as “person aggrieved” within the meaning of Section 198 CrPC.  

19.          In view of the employment of the following wordings by the Legislature in Proviso to Section 198 CrPC “provided that where the person is so aggrieved is woman----------or where such person----------or ----------or----------or is from-----------or infirmity unable to make a complaint, some other person may, with the leave of this Court, make a complaint on his behalf,” the complainant of this case could have sought permission from the Court to file this case on behalf of his brother and nephews. The word “infirmity” in Proviso to Section 198 should not be read to mean infirmity resulting from only ill-health or age. The expression “infirmity” cannot be understood in any limited or restricted sense. Infirmity under the Proviso to Section 198 CrPC must be held to hold within its sweep any deficiency, debility, disability, impossibility, difficulty or inadequacy, which the Court finds to be reasonable and sufficient to dispense with the personal appearance of the complainant to present the complaint. In the case of Fr. Thomas Meniankarikalam Vs Thomas J. Padiyath (2003) 1 Ker 307, it was held that where a complainant is residing abroad, he can file complaint for an offence under Section 500 of the Penal Code through the power of attorney, as the complainant suffers from the infirmity of being away in a foreign country.

20.         The above discussions lead us to hold that the complainant in this case, being not a person aggrieved and having not taken power of attorney from the defamed persons, is not competent to file case under Section 500 of the Penal Code and, thus, taking of cognizance by the learned Magistrate was a blatant violation of the mandatory provisions of Section 198 of the CrPC and, hence, the proceedings in question are liable to be quashed.

21.         We may now take up the last issue as to whether the present quashment application is maintainable, for, the same is termed by the complainant as the second revision application. This Court simply reiterates here the settled principle that no second revision is permitted in our procedural law, which is in place for administration of our criminal justice. It is no more res integra in our jurisdiction that an applicant


Criminal Miscellaneous Case No. 21673 of 2012