Azmat Hussain Shah & Ors. v. Zaffar Iqbal

Judgment

1. The petitioners have challenged the complaint filed by the respondent against them for offences under Sections 500, 501, 504, 506/109 RPC before the learned Munsiff (Judicial Magistrate 1st Class), Mendhar (for short the learned Magistrate) as also the order dated 17.01.2018 passed by the learned Magistrate whereby the cognizance of offences have been taken and process has been issued against the petitioners.

2. It appears that the respondent filed a complaint for offences under Sections 500, 501, 504, 506/109 RPC against the petitioners and four more persons alleging therein that the petitioners with a common intention to defame the respondent published his name containing defamatory contents wherein it was mentioned that the respondent is grabbing the forest land for construction of 2 CRMC No. 248 of 2018 road. It was alleged in the complaint that the respondent is residing in a village where there is no forest land, nor has he any nexus with the forest land. Thus, according to the complainant/respondent, the allegations published in the newspaper at the behest of the petitioners are per se defamatory with an intention to humiliate him in the eyes of society. It was further alleged that when he confronted the accused, they used filthy language against him and extended threats against him.

3. Learned Magistrate, after recording the preliminary statement of respondent-complainant and one witness, recorded the satisfaction that offences under Sections 500, 501, 504, 506/109 RPC are made out against the petitioners and co-accused and accordingly, process was issued against them in terms of order dated 17.01.2018. During the pendency of the complaint, respondent/complainant has withdrawn the complaint to the extent of accused Nos. 5 to 7, who happen to be reporters of the various newspapers in which offending news item was published.

It is contended by learned counsel for the petitioners that the petitioners are employees and officials of the forest department and in discharge of their official duties and on the basis of an information, a JCB machine was seized by them during the intervening night of 30th/31st of October, 2017 and a case was registered against the persons, who were digging the forest land. In this regard, certain news items also appeared in the press. It was found that the respondent/complainant along with his family members were constructing a road on the forest land and the petitioners in discharge of their duties thwarted 3 CRMC No. 248 of 2018 the said action of the respondent and his associates thereby saving the Government property from being encroached upon. The petitioners have placed on record copies of the reports indicating the action taken by them in this regard. On the basis of these documents, it is contended that the petitioners in discharge of their official duties have taken action in accordance with law for which they cannot be prosecuted.

5. I have heard learned counsel appearing for the petitioners and perused the record including the trial court record.

6. In the offending press reports, publicity has been given to the action taken by the forest officials against the persons, who have tried to encroach upon the forest land by constructing road over there. It has also been reported that the forest officials have seized the JCB. The name of respondent/complainant amongst others, also figured in the press reports. The question as to whether any offence of defamation has been committed by the reporters of the press, has become academic in nature in view of the fact that the complainant has withdrawn his complaint against the reporters. So the only question which remains to be decided is as to whether any offence is made out against the petitioners, who happen to be the employees and officials of the forest department and were admittedly discharging their official duties of protecting the encroachment of forest land.

7. Section 499 of RPC which is applicable to the instant case defines offence of defamation whereas section 500 of RPC provides for its punishment. Section 499 reads as under: 4 CRMC No. 248 of 2018 “499. Defamation 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 cases hereinafter excepted, to defame that person. First Exception.—Imputation of truth which public good requires to be made or published.—It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact. Second Exception.—Public conduct of public servants.—It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further. Third Exception.—Conduct of any person touching any public question.—It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further. Fourth Exception.—Publication of reports of proceedings of courts.—It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings. Explanation.—A Justice of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section. 5 CRMC No. 248 of 2018 Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned.—It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further. Sixth Exception.—Merits of public performance.—It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further. Explanation.—A performance may be submitted judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public. Seventh Exception.—Censure passed in good faith by person having lawful authority over another.—It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. Eighth Exception.—Accusation preferred in good faith to authorized person.—It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject- matter of accusation. 6 CRMC No. 248 of 2018 Ninth Exception.—Imputation made in good faith by person for protection of his or other's interests.—It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good. Tenth Exception.—Caution intended for good of person to whom conveyed or for public good.—It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.”

8. A bare reading of the aforesaid provision makes it clear that an offence of defamation is made out whenever a person by words spoken etc. makes or publishes any imputation concerning any person intending to harm or knowing or having reason to believe that the such imputation will harm the reputation of such person.

9. The offence, however, does not get attracted if a case falls under any of the ten exceptions mentioned in Section 499 of RPC. For constituting offence of defamation it must be shown that the accused had intention or had reason to believe that such imputation would harm reputation of the complainant. So mens rea is a condition precedent to constitute the offence. There has to be an intention or knowledge on the part of the accused to cause harm to the reputation of the complainant. Without intention or knowledge, the offence would not be constituted. 7 CRMC No. 248 of 2018

10. Coming to the facts of the instant case, the petitioners, who admittedly happen to be officials of the forest department, have only done their official duty by seizing the JCB and preventing the encroachment of the forest land. The official documents placed on the record by the petitioners would show that they have not only registered a report in this regard but they have also initiated confiscation proceedings in respect of the seized JCB machine, a notice whereof has been given to the alleged encroachers including the complainant. The petitioners have, therefore, done what was expected of the officials, who are dedicated towards their duty. So by no stretch of imagination, it can be said that the petitioners have registered the report or initiated the proceedings against the complainant and his associates with an intention to harm their reputation. Thus, mens rea which is an essential ingredient of offence of defamation is missing in the instant case. Hence the said offence is not made out against the petitioners.

11. In the case of complaints alleging commission of offence of defamation, the responsibility of a Magistrate to examine the material on record is of a higher degree. However, in the instant case, the approach of the learned Magistrate while passing impugned order whereby process has been issued against the petitioners exhibits lack of application of mind to the material on record. Therefore, not only the complaint but also the impugned order of issuing process against the petitioners is not sustainable in law.

12. Apart from the above, the petitioners, who are officers of Forest Department have been given legal immunity against prosecution in terms of provisions contained in Section 42 of the J&K Forest Act, 1987 (for short the 8 CRMC No. 248 of 2018 Act of 1987) which was applicable at the relevant time. The same reads as under: “42. Forest officers to be public servants (1) No suit or criminal proceeding or other legal proceeding shall be initiated against any public servant for anything done by him in good faith under this Act. (2) No Court shall take cognizance of any offence alleged to have been committed by a Forest Officer while acting or purporting to act ill the discharge of his official duty except with the previous sanction of the Government. Indemnity for act done in good faith. - No suit shall lie against any public servant for anything done by him in good faith under this Act”.

13. From a perusal of afore-quoted provision, it is clear that a criminal or other legal proceeding cannot be initiated against any Forest Officer, who is public Servant for anything done by him in good faith under the Act of 1987, not any court can take cognizance of any offence alleged to have been committed by such officer in respect of an act done in discharge of official duties without sanction of the Government.

14. In the instant case, the petitioners, who happen to be officers of Forest Department, prevented the encroachment of Forest Land and initiated confiscation proceedings in respect of the JCB used by the complainant and his associates in digging of forest land. Thus, they have acted in discharge of their official duties in exercise of their powers under the Act of 1987. No criminal proceedings could, therefore, have been initiated against them in view of the provisions contained in Section 42(1) of the Act of 1987. Even the Magistrate 9 CRMC No. 248 of 2018 had no jurisdiction to take cognizance of offences against the petitioners, as admittedly, no sanction for prosecution was accorded by the Government against them.

15. Thus, there is complete legal bar not only against initiation of criminal proceedings against the petitioners but also against taking of cognizance of offences against them. The impugned complaint and the cognizance taken thereupon is, therefore, nothing but an abuse of process of law and an attempt to thwart the legal functions of the forest officials. If such like complaints are allowed to proceed, it would have deleterious effects on the functioning of the honest and upright forest officials.

16. For the foregoing discussion, the petition is allowed and the impugned complaint as well as the proceedings initiated thereon against the petitioners are quashed. Jammu 21.02.2022 Paramjeet (Sanjay Dhar) Judge Whether the order is speaking Whether the order is reportable : : Yes/No Yes/No