Navlender Kumar Singh v. P.K.Khalid And ORS.

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE SOUMEN SEN CRR/16/2023 NAVLENDAR KUMAR SINGH ... PETITIONER VS.

P. K. KHALID AND OTHERS ... RESPONDENTS For the petitioner : Ms. Anjili Nag, Sr. Adv.

Mr. Adarsh Ilango For the respondents : Mr. Gopala Binnu Kumar Ms. Vinita Devi Heard on : March 18, 2025 Judgment on : March 18, 2025 SOUMEN SEN, J.

(Per Court) 1.

This is an application for quashing of the order passed by the learned Chief Judicial Magistrate dated June 26, 2019 and order passed by learned Judicial Magistrate First Class-II dated February 08, 2021 in CR Case No. 70 of 2019. The petitioner has also prayed for quashing of the entire proceeding of CR Case No. 70 of 2019 pending before the learned Judicial Magistrate First Class-II. 2.

The petitioner at the relevant point of time was the Director of Transport, Andaman and Nicobar Administration, Andaman and Nicobar Islands. He is presently working as Additional Director,

Women & Child Development Department, Government of NCT, Delhi.

3.

The respondent/complainant filed a complaint against the petitioner/accused person dated June 25, 2019 alleging offence committed by the petitioner/accused under sections 500 and 501 of the Indian Penal Code, 1860.

4.

The respondent/complainant was working as Bus Driver in Motor Transport Department since 1984 and he was also the General Secretary of Government Motor Transport Drivers' Union. 5.

On November 22, 2018 a strike notice was issued by the complainant in the capacity as the General Secretary, Government Motor Transport Drivers' Union due to the following long pending demands and indifferent attitude of the department towards Daily Rated Mozdoors and Contract Employees including Drivers, Conductors and Workshop staff etc. working in the Directorate of transport:-

(1) Regularization of the services of Daily Rated/Contract employees including Conductors, Drivers, Workshop Staff etc. (Unskilled/skilled who are working in the Department since several years.

(2) Deduct the EPF contribution from the wages of the daily Rated employees and remit the same to the EPF organization along with the equal contribution of the employer.

(3) Settlement of 1/30th pay arrears to DRM Drivers and Conductors as agreed vide Dy. Director (Vig/Admn}'s order No. 2400 dated 31st July, 2015.

(4) Immediate implementation of the Hon'ble High Court order vide WPCT 211 dated 06.07.2018 regarding transfer of DRM Drivers & Conductors.

6.

After receiving the said notice the accused issued notice on December 03, 2018 to the complainant on the ground of misconduct, insubordination and disobedience to which the complainant replied on February 08, 2019 after he resumed his duty as he was on medical leave between November 19, 2018 and February 02, 2019. The strike lasted only for one day and was withdrawn on the same day after having a discussion with the authority concerned. 7.

The genesis of the complaint arises on December 14, 2018 when the petitioner/accused allegedly with malafide intention and to defame the complainant in the society and amongst the public at large pasted suspension order in the wall of the bus terminus at Port Blair (Mohanpura bus stand) knowing fully well that the complainant was residing at quarter No. JG/178, Type-II quarter at Junglighat, Port Blair. The suspension order dated December 14, 2018 was not served upon the respondent and on the other hand on the same day the accused pasted the suspension order in the wall of the bus terminus at Port Blair.

8.

It was further alleged that the accused directed his subordinates to paste the suspension order dated December 14, 2018 in the wall of the bus terminus at Port Blair. The pasting of suspension order had caused irreparable loss and injury to the reputation of the complainant in the society. 9.

On the basis of such alleged complaint the learned Chief Judicial Magistrate on June 25, 2019 heard the complaint and took cognizance and thereafter transfer it to the Court of learned Judicial Magistrate, First Class-II for inquiry and disposal. On February 08, 2021, the learned Judicial Magistrate First Class-II, Port Blair took cognizance after examining the complainant and directed issuance of summon. Upon receipt of summon the accused person appeared before the learned Judicial Magistrate First Class-II, Port Blair on August 25, 2023.

10.

Ms. Anjili Nag, learned senior counsel representing the petitioner has submitted that the complainant does not disclose any ingredients of defamation inasmuch as in the complaint it was alleged that on the direction of the opposite party his subordinates pasted the suspension order in the wall of the bus terminus at Port Blair. The names of the subordinates have not been not disclosed. It is not in dispute that a suspension order was issued against the respondent and the said proceeding has culminated in a disciplinary proceeding in which punishment was imposed upon the respondent. However, the order of punishment is sub-judice as the complainant

has challenged the said order before the Central Administrative Tribunal.

11.

It is submitted that the making or publication of imputation is necessary for causing defamation of a person. The complaint did not produce or examine any witness in support of the complaint nor any document was produced to show that the suspension order was ever pasted in the wall of the bus terminus. The complainant has not examined any witness to establish prima facie that his reputation was harmed by such alleged pasting of suspension order on the wall of the bus terminus.

12.

In referring paragraphs 17 and 18 of the complaint, it is submitted that in paragraph of the complaint, the respondent/complainant has alleged the petitioner/accused person has pasted the alleged order of suspension whereas in paragraph 18 he alleged that the petitioner/accused directed his subordinates to past the suspension order dated December 14, 2018 in the wall of the bus terminus at Port Blair.

13.

It is further submitted that on January 10, 2019 the complainant issued a letter to the Director of Transport, accused expressed his grievance regarding pasting of the suspension order on the wall of the bus terminus and the accused was requested to take necessary action against the person responsible immediately. If no action is taken within three days and any action taken pursuant to

such complaint if not communicated to the complainant it shall be presumed that the said act was done on the behest of the officers of the Directorate of Transport and suitable proceedings shall be initiated against all concerned in the appropriate forum. 14.

Without prejudice to the aforesaid contentions, it was argued that during the said period the complainant undisputedly was absent and therefore pasting of suspension order in the wall of the bus terminus has to be considered as communication of suspension order to the complainant and therefore such act on the part of the accused person should be treated as an act towards discharge of official duty and in view of the section 197 of the Code of Criminal Procedure no complaint case could have been filed without obtaining prior sanction.

15.

The learned senior counsel has referred to the decision of the Hon'ble Karnataka High Court in Smt. D. Roopa vs. Shri H.N. Sathyanarayana Rao reported in 2022(3) KCCR 396 for the proposition that if any act being done by a public servant in the official capacity is to be alleged to have a colour of crime and criminal law is to be set in motion. On such allegations sanction for setting such criminal law in motion in terms of section 197 is imperative. 16.

The decisions of the Hon'ble Karnataka High Court in Criminal Petition No. 409 of 2002 (the Editor, Deccan Herald vs. Prof. M. S. Ramaraju) reported in 2005(3) Crimes 521: 2005 CriLJ 2672 and the

Hon'ble Andhra Pradesh High Court in Vedurumudi Rama Rao vs. Chennuri Venkat Rao and another reported at 1997 CriLJ 3851 have been relied upon for the proposition that publication of the suspension order per se would not constitute defamation as the fact remains that the respondent was suspended pursuant to a show cause notice issued by his employer.

17.

Mr. Gopala Binnu Kumar, learned counsel for the complainant submits that at this stage the Court is only required to consider the complaint and shall not proceed to hold a mini trial to find out the truth or falsity of the complaint. The complainant discloses sufficient ingredients of defamation as contemplated under section 500 of the Indian Penal Code. Admittedly, the complainant was the General Secretary of the union and was espousing the cause of the DRMs to the annoyance of the employer.

18.

The employer with ill motive and to malign the reputation of the complainant pasted the notice at the bus terminus although it was known to the accused that the quarter in which the complainant was residing is close to the office of the employer. There is no evidence suggesting that the accused has refused to accept the service of notice. It is the positive case of the complainant that the accused has pasted the notice. In any event, even if it is pasted at the instruction of petitioner having regard to the contents of the suspension notice, the learned Magistrate should be allowed to proceed with the complaint case.

19.

During the pendency of this proceeding, the Trial Court record was called for and on consideration of the averments in the petition of complaint as well as the statement of the complainant recorded under section 200 of the Code of Criminal Procedure an interim stay of proceeding before the learned Magistrate was granted and parties was directed to file their affidavits.

20.

The petitioner filed a supplementary affidavit wherefrom it appears that the day when the order of suspension was passed, it was sent to the section of Assistant Director (Transport) who in turn sent it to the section where the complainant used to work so that the same could be served upon him. On February 04, 2019 the complainant came to the office and received the suspension order. 21.

The said supplementary affidavit was filed in order to rebut the contention of the complainant that the suspension order was never served upon him. The petitioner has disclosed document to show the Transport Officer noted on the back side of the suspension order that the complainant was on medical leave and the copy of the suspension order was sent back to the Assistant Director (Transport) which was again marked to the Deputy Director (Vigilance). 22.

In order to attract section 500 of the Indian Penal Code a publication must contain imputation intending to harm the reputation of the person, knowing or having reason to believe that such imputation may harm the reputation of the such person,

subject to the exceptions mentioned in section 499 of the Indian Penal Code.

23.

To constitute an offence of defamation it requires a person to make some imputation concerning any other person and (i) such imputation must be made either (a) with intention; or (b) Knowledge; or (c) Having a reason to believe that such an imputation will harm the reputation of the person against whom the imputation is made. The imputation could be, by (a) words, either spoken or written, or (b) by making sings, or (c) visible representations. The imputation could be either made or published.

24.

In Vedurumudi Rama Rao (supra) the accused was the Regional Manager of Bank issuing confidential circular to Branch Managers of his region to the effect that they should be vigilant while dealing with complainant and others mentioned therein in their business transactions. The said circular was issued in his official capacity as Regional Manager in obedience to the directions of Central and Zonal Offices, and hence it is covered under exception 9 to section 499. In that context it was held that even if allegations made in complaint are true, offence under section 500 is not made out against the accused. 25.

In The Editor, Deccan Herald (supra) the newspaper publishing report given by secretary of Trust that Principal was suspended on charges of dereliction of duty. The publication was based on factual report and made in good faith and the newspaper having the legal,

moral and social duties to perform and what is published is for public good is factually correct, it was held that such publication cannot be treated as defamatory and an offence under section 499 of the IPC. 26.

In D. Roopa (supra) the petitioner challenged the cognizance taken for the offence on the basis of a report that was communicated by the petitioner to the respondent in his official capacity. The narration in the report was found to be summary of inspection taken up by the petitioner from time to time in his official capacity. It was in such circumstance, the court held that sanction under section 197 of the Code would be imperative and without sanction being sought or accorded by competent authority, the learned Magistrate could not have taken cognizance of offences without an order of sanction of the competent authority.

27.

The statement of the complainant recorded under section 200 does not corroborate the statement made by him in paragraph 18 of the complaint and the communication made on January 10, 2019. In the statement under section 200, it is alleged that the accused affixed one suspension order of the respondent at bus terminus Port Blair. The suspension order is a confidential document and by affixing the suspension order in public place it has caused humiliation and disrespect before his colleague and relatives as well as his subordinates. He was defamed in front of public. However, in the paragraph 18 of the complaint it is stated that the accused has directed his subordinate to paste the suspension order in the wall of

bus terminus. There is apparent contradiction between paragraph 17 and 18 of the complaint as to the person who has pasted the suspension order dated December 14, 2018 in the wall of the bus terminus at Port Blair read with the letter dated January 10, 2019. 28.

Moreover, the respondent has admitted that a notice was issued on December 03, 2018 to the complainant on the ground of misconduct, insubordination and disobedience. A disciplinary proceeding was initiated for such alleged act of misconduct. 29.

The existence of the suspension order is not in dispute. The supplementary affidavit discloses the steps taken with regard to service of the suspension order. Moreover, no witness was examined at the stage of section 200 in support of the complaint case. In any event, it appears that the said suspension notice even if the version of the complainant is accepted to be true was issued in discharge of his official duty and accordingly the complaint cannot proceed without prior sanction under section 197 of the Code of Criminal Procedure. 30.

On such consideration, CR Case No. 70 of 2019 is quashed. 31.

Under such circumstance, the application being CRR/16/2023 is allowed. However, there shall be no order as to costs. ( Soumen Sen, J. )