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Criminal Revision No. 51 of 1953, decided on 8th September 1953, against the order of A. D. M. Rahimyarkhan, dated the 3rd March 1953.
, S. 198‑"Person aggrieved"‑‑Father of girl of 20 years of age, married, and living with her husband‑Not such person for purpose of complaint under S. 500, P. P. C. in respect of imputations of un-chastity against the girl.
, S. 4 (h)‑Complaint does not require statement of fact beyond allegation that some person has committed an offence.
.‑The facts giving rise to this revision petition are as follows:‑
On 11th December 1950, the petitioner made an application to the police, Ahmadpur Lamma against the respondent under section 107 Cr. P. C. in which he inter alia imputed unchastity to Mst. Nazeer Begum, daughter of the respondent. On this petition the police made a complaint to the local Magistrate for taking action under section 107, Cr. P. C. against the respondent, who inquired into the case and ordered him to produce his defence evidence. On revision petition by the respondent, the High Court dismissed the complaint on 31st July 1951, on the ground that there was no case under section 107, Cr. P. C. against the respondent. On the termination of the proceedings the respondent filed a complaint for defamation against the petitioner in the Court of the Magistrate at Sadiqabad, who after examining all the prosecution witnesses in the case dismissed the complaint on the ground that the defamatory matter on which the present complaint and the preliminary statement of the complainant under section 202, Cr. P. C. were based was not made concerning the complainant, and that therefore he was not competent to file the complaint on his behalf.
Against this order the complainant filed a revision petition before the A. D. M. Rahimyarkhan who set aside the order of dis charge and transferred the case for further enquiry in the Court of the Magistrate 1st Class, Rahimyarkhan.
From this order of the A. D. M. the petitioner has come in revision to this Court. I have very attentively heard the counsel for both parties. Sheikh Nisar Ahmad for the petitioner argues that the complainant not being an aggrieved person within the meaning of section 198, Cr. P, C. is not a proper person to file a complaint for defamation on behalf of his daughter. In support of his contention he relies on 1887, P R 91 (Cr.). In that case the complainant brought a complaint under section 500 of the Penal Code against the accused op the ground that he had made certain allegations regarding the character of his daughter. On inquiry the Magistrate found that the imputations made by the accused were concerning the complainant's daughter and not against the complainant and he, therefore, relying on 22 P R 1884 dismissed the complaint. Mr. Plowden, J. in that case agreeing with the Magistrate in the dismissal of the complaint held further that even assuming that the accused acted as he did intending to harm the reputation of the complainant as well as of his daughter, the act did not constitute defamation of the complainant as defined in section 499, P. P. C.
The learned counsel for the respondent has on the other hand urged that any imputation of un-chastity made against the daughter harms the reputation of the father also and thus father is the person aggrieved at the imputation and is legally entitled to lay the complaint. In support of his contention he has cited A. I. R. 1938 Lab. 739 ; A I R 1928 Nag. 58 ; A I R 1925 Mad. 58 and 1 Cr. L J 445, all of which are however distinguishable. In the Madras case referred to above the person defamed was complainant's wife. In the course of arguments in that case an objection was raised that the complainant bad no right to initiate the case for defamation of his wife. It was held by the High Court that where a married woman is defamed by imputation of unchastity, the husband is a person aggrieved under section 198, Cr. P. C. It was further observed in that case that the combined effect of sections 499, P. P. C. and 198 Cr. P. C. is that the husband of the woman to whom unchastity is imputed has the right to prefer a complaint of defamation.
The same proposition of law was discussed in I L R 25 Bom 151 in which person defamed was the wife. It was held by a majority of Full Bench Judges of that High Court that only the husband can lay a charge of defamation when a wife is defamed and that the rule ought not to be extended to complaints by other relatives.
The other three cases are based on the principle that a lady residing with her father, brother or son is a member of the family and her reputation is the reputation of the person in whose house and under whose care she is living. Thus any imputation against her character would equally affect the character of the relative with whom she resides. Hence the male member of the family under whose charge the defamed woman lived, was considered as legally competent to bring the complaint under section 500 P. P. C.
In A I R 1938 Lab. 739 several respondents presented a petition to the police against Herdat Singh in which they made certain defamatory statements against his minor daughter Mst. Harbans Kaur living with him. Upon this Herdat Singh lodged a complaint against them under section 500, P. P. C. which was eventually compounded on the accused tendering an apology and they were acquitted. Subsequently another complaint under section 500 was brought by Mst. Harbans Kaur against the accused with reference to the same defamatory subject. The Magistrate convicted the accused on the charge of defamation but the convictions were set aside on appeal by the Sessions Judge on the ground that the 2nd complaint by Mst. Herbans Kaur was barred by the acquittal of the accused in the previous complaint by Herdat Singh according to the provisions of section 403, Cr. P. C. On petition for revision against this order Bhide, J., remarked inter alia that the defamatory allegations with reference to Mst. Harbans Kaur were calculated to harm Hardat Singh's reputation as well and could therefore legitimately form the subject‑matter of his complaint. I may point out with due respect that these observations of the learned Judge whereby he has validated the previous complaint of defamation by the father are based on the special circumstances of that case, as the girl was a minor and lived in the custody of her father in the same house. Hence the father was regarded as an 'aggrieved' person justified to bring a complaint under section 500, P. P. C., on behalf of his young daughter.
Similarly in A I R 1928 Nag. 58, a complaint under section 500, P. P. C. was lodged by the adopted son with whom his adoptive mother, the person defamed was residing. It was held that the adopted son was the person aggrieved' within the meaning of section 198, Cr. P. C. and the complaint was regarded as legally competent.
The same proposition of law is laid down in 1 Cr. L J 445. In that case Amir Ali and Handley, JJ., of the Calcutta High Court observed as follows :‑
"Having regard to the notions, manners and customs of the country the (Brahmin) brother with whom the (widowed) sister was living was as much aggrieved by the imputations made against her as the lady herself, and that therefore, the brother was a person aggrieved within the meaning of section 198, Cr. P. C. and it was competent to a Court to take cognizance of the offence of defamation upon his complaint."
From the discussion of the authorities as given above, it will be evident that the facts of those cases were quite different from the circumstance in the present case. The alleged defamatory statement against Mst. Nazir Begum is contained in the applica tion of the petitioner, dated 11th December 1950, on which the present complaint of the respondent is based. In this complaint case under section 500, P.P.C. the respondent stated in his deposi tion on 19th April 1952, that his daughter Mst. Nazeer Begum who was defamed had been married 5 or 6 years back who was since then living with her husband quite separate from the com plainant and that at the time of marriage she was 20 years of age. This shows beyond any doubt that at the time of the alleged defa mation by the petitioner, she was a grown up woman of more that 20 and was not residing with her father. In these circumstances the authorities cited on his behalf do not support his case. In this case the husband of the lady and not the respondent can be called an aggrieved person and consequently the father had no right to seek his redress for the defamation of his married daughter.
The next contention of the respondent is that although the offence of defamation took place long after the marriage of the girl when she was living with her husband, yet as the imputation relates to the period before her marriage when she was with her parents, in unmarried condition, the petitioner was clearly guilty of defamation of the respondent In my opinion this is a wrong way of arguing a matter and is altogether devoid of reason, This is an admitted principle of criminal law that the liability pf alt accused person for an offence should only be determined in the light of the facts and circumstances of the case existing at the time when the offence was committed. Now the defamatory statement concerning the previous character of the girl was made not during her maidenhood when she was living with her father but at the time when she was with her husband quite apart from her parents, and therefore it cannot be said that the respondent could in any way be injured by those imputations with reference to her past character. The essence of the offence of defamation is that the imputation should be made or published concerning any person with intent to harm his reputation in future. In this case it cannot be presumed that the petitioner by making certain adverse reflections on the past conduct of the girl intended to cause injury to her father as at the time of the offence she was not living with him and any injury meant to be caused to the girl by these slanderous charges on her character could not in the least affect the respondent with respect to his past life.
Another point urged by the respondent, which is of consider able importance in this case, is that even excluding from considera tion the defamatory words concerning his daughter's character the petitioner's application to the police also contains several other expressions which are directly harmful to the reputation of the respondent. In support of his contention he has referred me to the following passage in the petition :‑
"Munshi Ghulam Muhammad petition‑writer (respondent) was my neighbour who desired to give his daughter in marriage to me (petitioner) in 1942‑43 and by holding out this temptation, he went on defrauding me of money and other articles and in this way he continued duping me."
Thus the respondent bases his case for defamation in the alter native on the above cited words on the ground that they were intended to lower his moral character and social status in the estimation of others. The objection of the learned counsel for the petitioner is that as the complaint under section 500, P. P. C. is not based on these allegations, the Magistrate is not empowered under the provisions of section 198, Cr. P. C. to take cognizance of the case on these facts. The complaint of the respondent is no doubt based on the defamatory application of the petitioner but it merely reproduces the imputation regarding the character of the respondent's girl and does not specifically mention the statement cited above with respect to the respondent himself though the complainant in his examination evidently bases his case on both the counts. Now the definition of complaint' in section 4 (h), Cr. P. C. does not require any statement of facts beyond and allegation that some person has committed an offence. The com plaint before me is in my opinion sufficiently definite as it states that an offence has been committed by the accused under section 50t P. P. C. by his presentation to the police of a petition containing defamatory matter against the complainant and his daughter. The basic ruling on this point is by Sir Ornold White, C. J. and Mr. Miller J. of the Madras High Court, reported as 32 I L R Mad. 3 a case under section 124‑A of the Penal Code, in which the learned judges observed as follows:‑----
A complaint is not defective merely because it did not set out the speeches or alleged seditious words which form the subject‑matter of the subsequent charge. Even if such omission is a defect, this is at most an irregularity within section 537 (a) Cr. P. C. unless it has occasioned a failure of justice.'
Another decision which may be considered an authority on the subject is A I R 1924 Mad. 340. That ruling has a direct bearing on the facts of the present case. In the Madras case the accused was charged under section 500, P. P. C. for having defamed the complainant. The alleged defamation fell under two counts. In the complaint the material portion of one count was given in detail but there was no specific reference to the second count in it. It was contended on behalf of the accused before the Division‑Bench composed of Odgers and Hughes, JJ. that as regards the second count there was no complaint at all. The learned Judges relying on 32 I L R Mad. 3 (cited above) overruled the objection and held that no specific reference to every exhibit need be made in a complaint of defamation. Now in view of these clear pronounce ments by the eminent Judges, I think the contention of the respond ent prevails and the objection of the counsel for the petitioner is discarded. The proceedings so far as they relate to the defamatory matter against the complainants daughter should stand terminated and the finding of the trial Court on this point is maintained. On the second item referred to above the proceedings shall, however, continue against the petitioner.
In conclusion I wish to point out an irregularity in the proceedings. In this case the original petition of the accused containing the alleged defamatory matter referred to above has not been brought on the record nor marked as exhibit, which is a very serious defect. The record shows that Munshi Gul Muhammad Constable No. 50 of police post Ahmadpur Lamina produced in the Court the Rozanamcha of the police containing the original document, a copy Exhibit P. A. of which was simply brought on the record. This is certainly a wrong way of handling a case. It was the duty of the Court to call for original document and admit it into evidence and not to have contended itself by merely making the copy thereof as exhibit in the case. In the end I reject this revision petition and direct the learned trying Magistrate to call for the original document and proceed with the second count of charge only, which is alleged to reflect directly on the personal character of the respondend. The petitioner as already stated should stand discharged on the first item i. e, in respect of the defamatory statement concerning the respondent's daughter.
A.H. Petition rejected.
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