K. Papi Reddy Vs. B. Venkateshwarulu and State of A.P.

IN Judgements Database | 03/08/2018

 

IN THE HIGH COURT OF ANDHRA PRADESH

Criminal Revision Case No. 1029 of 2002

Decided On: 22.08.2006

Appellants: K. Papi Reddy
Vs.
Respondent: B. Venkateshwarulu and State of A.P. rep. by Public Prosecutor

Hon'ble Judges/Coram:
G. Yethirajulu, J.

ORDER

G. Yethirajulu, J.

 

1. This Revision Case is filed by A-3 in C.C. No. 1012 of 2001 on the file of the Special Judicial Magistrate of First Class for PCR Cases, Warangal, who was impleaded in the above case under Section 319 of Cr.P.C.

2. The complaint was filed against A-1 and A-2 for the offence under Section 500 of I.P.C. After closing of the prosecution, the petitioner was examined as DW-1 on defence side. After completion of the evidence of the petitioner, an application covered by Crl. M.P. No. 2365 of 2001 was filed before the said Court praying to add the petitioner as A-3 in the above case basing on the evidence given by him as DW-1 for the offence punishable under Section 500 of I.P.C. The lower Court allowed the said application by directing that the petitioner shall be added as A-3 in the main case to be tried for the offence under Section 500 of I.P.C. The petitioner, being aggrieved by the order of the lower Court, dated 10-07-2002, preferred the present Revision Case challenging the validity and legality of the order and requesting to set aside the order by contending that the petitioner was examined as a defence witness after closing the prosecution evidence and after examination of the accused under Section 313 Cr.P.C., the defence witness cannot be added as an accused and he will be prejudiced if he is made as an accused. The person cannot be a witness and an accused in the same case. The learned Magistrate ought to have taken into consideration Section 132 of the Evidence Act and the university teachers have submitted a representation to the higher authorities and there is nothing defamatory in that statement. As there are no allegations against the petitioner either in the complaint or in the evidence of PWs.1 and 2, the Magistrate ought not have allowed the petition to prosecute him for the offence under Section 499 read with 500 of I.P.C.

3. The complainant made the following allegations against A-1 and A-2 in the complaint:

The complainant worked as a Lecturer, Reader and for the last seven years and he has been working as a Professor in the Department of political science in Kakatiya University College at Warangal. He earned good name in the academic circles, therefore, he was appointed as NSS Programme Officer during the years 1977 and 1980 and worked as such. The university by taking into consideration his qualifications in the academic field and the merit possessed by him and activities conducted by him in the field of NSS, appointed him as a programme coordinator in 1995 and it was extended for one more year. He organized several programmes for which he was appreciated by the Urban Development Authority and District Administration of Warangal. The university also extended his term during April, 1997. When that being so, he found a write up in Warangal Edition of Vartha Telugu Daily on 25-03-1997 with a caption "Arhataleni professor N.S.S. Co-ordinator Padavi" containing baseless, scurrilous, slanderous and false statements reported to be contributed by A-1 and got printed under the command of A-2 as Chief Editor of the said daily newspaper. In the write up it is mentioned that the complainant did not possess the required qualifications namely 1) that he is not a Reader; 2) that he had not undergone any orientation courses and never worked as NSS Programme Officer and he was behaving in a dictatorial manner.

4. The appointment of the complainant as NSS Programme Coordinator is not in accordance with the guidelines and that he does not possess requisite qualifications to be appointed for the said post. The said news item is baseless and it contained utter falsehood and it is nothing but exhibiting venom of jealousy and the same is published by the accused with a view to lower the moral and intellectual image and character of the complainant and the esteem in which he was held in academic circles, friends and relatives. The complainant suffered mental agony and pain and it caused annoyance to him. The accused are under the obligations of making necessary enquiries with the concerned authorities before publishing the news item about the truthfulness of the information received by them. But in utter disregard to their obligation, the accused went on making statements of their own. The said write up is defamatory as defined under Section 499 of I.P.C., therefore, the accused are punishable for the offence under Section 500 of I.P.C.

5. The Court took cognizance of the offence against A-1 and A-2 and during the trial, the petitioner was examined as DW-1 after closing of the prosecution evidence and after examination of the accused under Section 313 of Cr.P.C.

6. The petitioner as DW-1 stated in the deposition that in February or March, 1997, he made a representation to the Vice Chancellor of Kakatiya University, Warangal as General Secretary of the Association of Kakatiya University Teachers against the appointment of the complainant as NSS Coordinator. Ex.D-5 is the said representation dated 20-03-1997. Some of the eligible teachers of Kakatiya University have made oral complainant alleging that the complainant do not possess qualifications for appointment as NSS coordinator. On the basis of the said oral complaint and on the basis of D.O letter No. 69/NSS-2/97, dated 06-02-1997 of Sri A.K. Goel addressed to the Vice Chancellor, he prepared Ex.D-5 representation. But the Vice Chancellor did not respond on his representation. They have also met the Vice Chancellor several times and requested to appoint suitable person as NSS Coordinator in accordance with the guidelines given by the Commissioner of Collegiate Education covered by Ex.D-6. Even then, there was no positive response from the university. Under those circumstances, they have complained to the press including A-1 about the inaction of the Vice Chancellor on their complaint regarding the appointment of the complainant as NSS Coordinator. He and other teachers of the university believed that the press ventilates the misdeeds of the Vice Chancellor in appointing the complainant as NSS Coordinator.

7. He further stated in his evidence that after satisfying himself about the qualifications of the complainant, he submitted D-5 representation to the university. He found that the complainant has not fulfilled guidelines 1 and 2 prescribed under Ex.D-6. After verifying the service particulars of the complainant in the service register, he did not find the entries regarding the orientation training undergone by the complainant in NSS and he did not possess the third condition also as mentioned in Ex.D-6. As they found the irregularity in the appointment of NSS Coordinator, they submitted the representation. The intention of submitting Ex.D-5 representation was to request the university authorities to appoint a suitable eligible person as NSS Coordinator as per the guidelines mentioned in Ex.D-6. As they perused the records, they believed that the contents of Ex.P-1 are true and on giving their information, Ex.P-1 press note was published in Vartha Daily newspaper regarding the qualification of the complainant. A-1 and A-2 did not ask him to submit any representation in writing subsequent to publishing Ex.P-1. After the said evidence, the complainant filed the application mentioning that the petitioner and others were instrumental in getting the press write up and they are liable to be prosecuted according to law.

8. The learned Counsel for the petitioner submitted that the statement made by the petitioner in the evidence cannot be used against him for adding him as an accused and to prosecute him along with the other accused and it amounts to testimonial compulsion and under Article 20(3) of the Constitution, no person accused of any offence shall be compelled to be a witness against himself and it cannot be used against him more particularly in the case in which he gave the evidence.

9. The learned Counsel for the respondent submitted that the petitioner is not entitled to any protection under Section 20(3) of the Constitution of India for the self incriminatory statement made by him voluntarily and such statement would be inadmissible in evidence for the purpose of corroboration or contradiction as provided under Section 145 of the Evidence Act. He further submitted that the right guaranteed under Article 20(3) of the Constitution of India is a right pertaining to a person accused in an offence and it is a protection against such compulsion resulting in his evidence against himself. This protection is not available in respect of the statement in evidence at the trial in the Court room, therefore, on the basis of voluntary statement made by the petitioner that he was responsible for the publication of the news item, the learned Magistrate was right in adding him as A-3 in the case.

10. The learned Counsel for the respondent in support of his contention relied on a Judgment of the Supreme Court in State of Bombay v. Kathi Kalu MANU/SC/0134/1961 : MANU/SC/0134/1961 wherein the Supreme Court held that:

The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by Section 27 of the Evidence Act,. If the self-incriminatory information has been given by an accused person without any threat, that will not be hit by the provisions of Clause (3) of Article 20 of the Constitution for the reason that there has been no compulsion. Thus the provisions of Section 27 of the Evidence Act are not without the prohibition aforesaid, unless compulsion had been used in obtaining the information.

The Supreme Court further held that:

To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.

11. In Chiragdalvi Mohammed Abdul Azeem Ahmed v. State IV (1998) CCR 273 a learned single Judge of this High Court held that in appropriate cases, the Court may decline to summon the other persons as accused if the circumstances so warrant under Section 319 of Cr.P.C.

12. In the case covered by the above decision, A-1 filed an application to summon PWs.15 and 16 as accused in the case. The Court observed that the application was filed only to defeat the prosecution case and delay it, therefore, the request was denied by the trial Court and the said order was upheld by the High Court.

13. Section 319 of Cr.P.C. reads as follows:

319. Power to proceed against other persons appearing to be guilty of offence:-- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under Sub-section (1), then-

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard;

(b) subject to the provisions of Clause (a), the case may be proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

14. In Raghubansh Debe v. State of Bihar MANU/SC/0074/1967 : MANU/SC/0074/1967 the Supreme Court held that if the evidence of a witness disclosed that he committed the offence, the Court has power under Section 319 of Cr.P.C. to summon such person as an accused in the case. The Supreme Court further observed as follows:

Once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. As pointed out by this Court in MANU/SC/0082/1964 : MANU/SC/0082/1964 the term "complaint" would include allegations made against persons unknown. If a Magistrate takes cognizance under Section 190(1)(a) on the basis of a complaint of facts he would take cognizance and a proceeding would be instituted even though persons who had committed the offence were not known at that time. The same position prevails, in our view, under Section 190(1)(b).

15. The respondent also relied on Jai Prakash v. State of U.P. 1985 I (Crimes) 229, wherein the Allahabad High Court held as follows:

Once cognizance of an offence has been taken by a particular court and once that Court is properly seized of the case and some accused are before it, the provisions of Section 319(1) can be invoked.

16. From the above legal position, it is clear that the Court has every discretion under Section 319 of Cr.P.C. to summon the witness before the Court also as an accused in the same case when the evidence given by him discloses incriminatory material against him.

17. The next point that has to be considered is whether the information said to be given by the petitioner through press note is defamatory and whether it makes out any prima facie case against him for the prosecution.

18. Section 499 of I.P.C. defines defamation, which reads as follows:

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.

19. The learned Counsel for the petitioner submitted that the petitioner has no intention to harm the reputation of the complainant and even if it is accepted for a moment that the press note has been issued, it was under the bona fide impression on the basis of the material available with him and it comes under 1st and 9th exceptions as the imputation of truth was made for public good and in good faith for protection of himself or for public good. He further submitted that as the imputation was made in good faith that the petitioner did not possess the requisite qualification as per the guidelines issued by the Government and as the endeavour of the petitioner is to discourage the authorities to appoint persons, who do not fulfill the qualifications prescribed under the guidelines, for public good, it comes under 9th exception and the petitioner is not liable to be prosecuted. When there was no ill-will or malice against the petitioner, it shall be presumed that the imputation was made in good faith and in such a case, the proceedings are liable to be quashed as the action would come within 9th exception under Section 499 of I.P.C.

20. On reading the statement, it is disclosed that the petitioner did not make any personal allegations against the complainant. He only pleaded that the appointment of the complainant is not proper as he failed to fulfill the guidelines issued by the Government of A.P. through the Commissioner of Higher Education.

21. The only contention of the complainant is that the statement was made without verification of the facts. But the petitioner stated that on the information from the students and teachers and on verification of the service register, he gained an impression that the complainant did not possess the requisite qualifications to hold the post of NSS Coordinator. He further gained the impression as the Vice Chancellor did not respond to the memorandum issued by them. From the above material, it is disclosed that the petitioner did not make the said statement with any ill-will or malice against the complainant.

22. In the light of the above circumstances, though the Court has power to add the petitioner as an accused by exercising the discretion under Section 319 of Cr.P.C., in the light of the facts and circumstances, the said statement alleged to be made by the petitioner would squarely come under 9th exception of Section 499 of I.P.C., therefore, the petitioner is not liable to be prosecuted under Section 499 punishable under Section 500 of I.P.C.

23. In the result, the Criminal Revision Case is allowed. The order of the lower Court dated 10-07-2002 in Crl. M.P. No. 2365 of 2001 is set aside by holding that the petitioner is not liable to be prosecuted.