29.09.2015 (RAPRIA): The
Trail Court on Tuesday discharged me and other 10 co-accused teachers and
Journalist and an Editor, Hari Bhoomi, in a criminal complaint of Defamation,
filed in the year 2007. In fact, it was alleged that the accused had defamed
the complainant by making statement to media to the effect that allegedly he had
indulged in corruption and irregularities while dealing with the Govt. funds.
Later on, he was found innocent by an enquiry officer. But I had made statement
to media on the basis of the written information provided by the District
Education Officer; who informed that the complainant had committed serious
irregularities in the discharge of his duties. How could I imagine that later
on he would be found innocent by the Enquiry Officer.
Bet that as it
may, during these more than 8 years of prosecution I suffered lot of emotion
turmoil. In fact, I was not much worried about the outcome of the case, as I
knew that the prosecution was launched by a incompetent lawyer, just to exploit
the complainant; by taking advantage of his ego. But I was distressed at the
sufferings of the poor lady who had waged the unfruitful legal battle; by
entering into the shoes of her deceased husband, i.e., the original
complainant. In fact, the complainant committed suicide during the pendency of
proceedings. I have had great anguish to see that her lawyer exploited the
complainant, by misguiding her, for so many years. I tried to reason with her
and her lawyer for futility of legal battle; multiplying the mental turmoil.
In fact, I have
had lot of respect for the complainant and great sympathy with his/her family.
I wanted to help them to come out of emotional turmoil. I, even, tried to talk
and calm down their anguish by offering that I was ready to apologise
publically, irrespective of my strong legal position. But that was also
considered my weakness and I was completely misunderstood. Maybe, they were
justified in having deep rooted prejudices against me.
Who was at
fault? Whether justice has been delivered or not? Am I guilty; at least ethically? All these questions boil into
my brain. I have learnt lot of things from the aforesaid episode and it was a
soul purifying experience.
MY APPLICATION FOR DISCHARGE IS
SELF-EXPLANATORY:
IN THE COURT OF......................................
(LD. CHIEF JUDICIAL MAGISTRATE)IN THE MATTER OF:...................................Complainant//VERSUS//################...........................Accused PersonsAPPLICATION FOR DISCHARGE UNDER SECTION 245 CrPC, ON THE BEHALF OF THE ACCUSED No. 11.RESPECTFULLY SHOWTH:1. That the Applicant/accused has been summoned as an accused no. 11, under Section 500, 501, 502, 506 I.P.C. with the aid of Section 120-B IPC, on the private complaint of deceased complainant.2. That the Applicant/accused is a practicing Advocate in the Supreme Court of India. The Applicant/accused has also served the Centre Govt.’s agencies like CENTRAL INFORMATION COMMISSION (CIC), and NATIONAL INVESTIGATION AGENCY (NIA), as a Legal Consultant. And, the educational qualifications of the Applicant include: M.A., LL.B., and P.G.D. in Cyber Laws, P.G.D. in Intellectual Property Laws, P.G.D. in Journalism & Mass Communication and General Course in Intellectual Rights from ‘WORLD INTELLECTUAL PROPERTY ORGANISATION’ (WIPO, GENEVA). The Applicant is also associated with several national organisations like National Executive Member of the ‘NATIONAL CAMPAIGN FOR PEOPLE’S RIGHT TO INFORMATION’, Counsel of the ‘JUSTICE ONKAR SINGH FREE LEGAL AID SERVICE TRUST’ headed by Shri KTS Tulsi, Senior Advocate, Supreme Court etc. Therefore, the Applicant is a respectable person of society and law abiding citizens and recently in the month of December, 2014, the ‘NATIONAL LAW UNIVERSITY, DELHI’ has granted a certificate to the Applicant on the successful completion of training on ‘ADMINISTRATIVE LAW & GOVERNANCE.3. That out of total witnesses examined in the preliminary evidence; not even a single witness has been examined in the Examination-in-Chief and Cross Examination. Therefore, the complaint of the deceased can not be read into evidence at all, as the deceased and other witnesses examined in the preliminary evidence could not be subjected to the Examination-in-Chief and Cross Examination. The Applicant/accused could not get an opportunity to cross-examine him.4. That the entire evidence of the deceased complainant’s wife is liable to be discarded and inadmissible, as the same does not pass the test of the Section-60 of the Evidence Act. The entire evidence is only hearsay evidence. It is very important and relevant to mention here that there is no direct evidence to suggest that the deceased complainant’s wife had any personal or direct knowledge about the alleged act of the Applicant/accused.5. That the only allegation against the Applicant is that while working as a State President of the ‘HARYANA NYAY MANCH’ a civil society, the Applicant allegedly got published a news story in the Punjab Kesari Hindi Dainik dated 21.08.2007, which reads:“कैथल, 20 अगस्त (पराशर)हरियाणा न्याय मंच के अध्यक्ष प्रदीप कुमार एडवोकेट ने पुलिस अधीक्षक को विश्तृत पत्र लिखकर मांग की है कि ......... हाई स्कूल के पूर्व मुख्य अध्यापक _____ के खिलाफ वितीय अनियमितताओं को लेकर अपराधिक मामला दर्ज किया जाए ! उन्होंने कहा कि उनके संगठन ने सूचना के अधिकार अधिनियम के तहत जो आंकड़े जिला शिक्षा अधिकारी से इक्कठे किये हैं उनके आधार पर पर्याप्त साक्ष्य हैं जिनके आधार पर पुलिस को प्रारम्भिक मामला दर्ज करना चाहिए ! उन्होंने कहा कि स्कूल में गैर कानूनी तरीके से बिजली बिलों का भुगतान करने के लिए चंदा एकत्रित किया गया तथा भोले-भाले छात्रों एंव उनके अभिभावकों से धोखाधड़ी की गई ! यही नहीं उक्त मुख्य अध्यापक ने बिजली बिलों का भुगतान भी बिजली निगम को नहीं किया ! जो सूचना न्याय मंच ने जिला शिक्षा अधिकारी से एकत्रित की है उसके आधार पर राज्य शिक्षा कोड के अनुसार केवल दो रुपये प्रति छात्र ही इस मद में राशि एकत्रित की जा सकती है, लेकिन उक्त मुख्य अध्यापक ने 102 रुपये प्रति छात्र एकत्रित की है ! और इसी प्रकार पी.टी.ए. फण्ड में भी अधिक राशि एकत्रित करने का आरोप लगाया गया है ! शिकायत में कहा गया है कि _____ मुख्य अध्यापक ने कथित तौर पर 34150/- प्राथमिक स्कूल के मुख्य अध्यापक से ये कहकर लिया कि यह राशी उच्च विद्यालय की होती है, लेकिन डी.ई.ओ. ने बताया कि उसे इस प्रकार दुसरे स्कूल से पैसा लेने का कोई अधिकार नहीं था ! प्राप्त जानकारी के अनुसार पुलिस मामले की जाँच कर रही है और ताज़ा सूचना के अनुसार अभी तक कोई मामला दर्ज नहीं हुआ है !”Other allegation against the Applicant is that allegedly he had made a telephonic call to the deceased complainant to the effect that the ‘FIR will be lodged’ and will face ‘dire consequences’6. That apart from the aforesaid allegation, there is neither other allegation nor any supporting evidence against the Applicant.7. That with a view to disassociate the Applicant with the other accused persons, the allegations and evidence may be bifurcated into the below mentioned manner:CONSPIRACY: First of all, with a view to differentiate the Applicant with the other accused persons, the role of the Applicant has to be distinguished, by keeping in view the evidence and other facts and circumstances of the present case. The complainant has failed to prima-facie establish the conspiracy between the Applicant/accused and other accused persons on the below mentioned grounds:i. Because the Applicant is a practicing Advocate, whereas the accused no. 1 to 8 are Govt. Teachers and accused no. 9 and 10 are the Press Reporter and the Editor of the Daily Newspaper ‘Hari Bhumi’. No news item published in the ‘Hari Bhumi’ has been attributed to the Applicant/accused. To substantiate a charge under Section 120 B of the Code, there must be agreement, nexus or some link between two or more persons. There is not an iota of evidence or even allegation to substantiate that the Applicant/accused prior to the commission of the offences had any nexus with other accused persons or he had conspired with other accused persons. A clear link between the accused persons has to be established and the chain of events should be connected.ii. Because in Sanjiv Kumar v. State of Himachal Pradesh, AIR 1999 SC 782, the Supreme Court, speaking about what is the essential nature of conspiracy held that the offence under section 120-B is an agreement between the parties to do a particular act. Association or relation to lead a conspiracy is not enough to establish the intention. It is true that consipracies are products of stealth, and seldom evidenced by direct material; largely it is to be inferred on the circumstances, and attendant facts. Yet, there should be some bedrock facts which can lead to such inferences, even at the charge framing stage. Thus, the sine qua non for a charge to be sustainable under section 120-B, IPC is the agreement between the parties.iii. Because THE SUPREME COURT OF INDIA in Chaman Lal and Ors. Vs. State of Punjab and Anr. AIR2009 SC 2972 held, ““Essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both.”8. That once the conspiracy angel between the Applicant/accused and other co-accused is removed, no case is made out against the Applicant which would warrant conviction, even if the entire evidence goes unrebutted.NO CASE IS MADE OUT ON FOLLOWING GROUNDS:NO OFFENCE OF DEFAMATION: GROUNDS9. That for an offence of defamation as defined under section 499 IPC, three essential ingredients are required, to be fulfilled:-i. Making or publishing any imputation concerning any person;ii. Such imputation must have been made by words either spoken or intended to be read or by signs or by visible representations.iii. The said imputation must have been made with the intention to harm or with knowledge or having reason to believe that it will harm the reputation of the person concerned”10. That, in view of the aforesaid legal position, no prima-facie offence of defamation is made out against the Applicant/accused on the below mentioned grounds:I. Because there is not even an iota of evidence to the suggest that the Punjab Kesari Newspaper had ever published the alleged news item, as the CW7, the concerned officer of the Circulation Department has failed to produce the original record/news paper. Therefore, there is no publication of the alleged imputation. It is very important and relevant to mention here that any person with an ordinary printer can print the news with the exact similar design and font of the any newspaper; even at home.II. Because there is not even an iota of evidence to suggest that the Applicant/accused had got published the news item published in the Dainik Pujab Kesari. Neither the concerned Press Reporter nor the concerned official of the Publication Department of Punjab Kesari, after appearing in witness box, have suggested in their evidence that the alleged news item was published at the behest of the Applicant/accused. Therefore, there no evidence is available on file to the effect that the alleged news item was got published by the Applicant/accused. However, for the sake of argument, even if the news item attributed to the Applicant/accused is accepted in its entirety, no offence is made out because the news item only says that the matter of financial irregularities in PTA and Electricity Fund has been reported to the police. And, the fact of the illegal collection of PTA Fund and Electricity Fund has been found to be correct in the Enquiry Report Exhibit CW-1/2. The news item nowhere indicates that the publication of such news can harm the reputation of a public servant.III. Because the act of the Applicant falls under the Exceptions of the Section 499 IPC, as the District Education Officer, Kaithal, vide letter no. Memo No. Adm/2007/082, Dated 07.08.2007 (MARK ‘D-1’ available on file) had informed the Applicant/accused to the effect that the deceased complainant had collected the amount of Rs. 26456/- from the students, without any provision/rule and still the Electricity Bill was due against the Govt. High School, Shergarh and the deceased complainant was responsible for it. Further, the letter mentioned that the deceased complainant collected Rs. 102 from the students as a PTA Fund, though as per the Rules he could collect only Rs. 2/- and Rs. 34150/- was taken by the deceased complainant from the Head Teacher of the Primary School, without any rule/law. The letter also indicated that the suitable action will be taken against the deceased complainant, as the matter had already been reported to the Department. In such facts and circumstances, if after receipt of the letter from the Education Department, by considering it as a truth, the Applicant/Accused made certain imputations, in public good, about the conduct of Public Servant, as it appeared in the given circumstances, no offence can be attributed to the Applicant/accused.IV. Because the Chapter-3 Fee And Fee Concession (Chapter III of Hr. Education Code-Art. 92 to 109, nowhere provides for collection of Electricity Fund from students. And, CH.3E-P.T.A. Fund Rules 1988, provides that only Rs. 2/- can be collected as a PTA Fund.Moreover, even if some imputation was made by the Applicant/accused, though the same is not admitted, the same may be considered to be done in exercise of his Fundamental Right of Freedom of Speech & Expression, under Article 19 of the Constitution of India.Therefore, no offence of defamation is made out in view of the following exceptions of the Section 499 IPC:Ø 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.Ø “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.”Ø “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.”Ø “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 interest of the person making it, or of any other person, or for the public good.”Ø 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.”V. Because the Hon’ble PUNJAB & HARYANA HIGH COURT in HK DUA //VERSUS// MRS. BHARTI ARORA 2008(4) RCR (CRIMINAL) 55 held that ‘News item published in news paper were with respect to conduct of public servant in discharge of her public function-The case falls under exception second of Section 499 IPC’VI. Because the Hon’ble PUNJAB & HARYANA HIGH COURT in ASHWANI KUMAR VERSUS SUBHASH GOYAL 2013(3) RCR (CRIMINAL) 779 held, “The contents of article would be protected by the first, second and third exception carved out in Section 499 IPC, Where in an imputation is made concerning any person for the public good or an expression in good faith of any opinion regarding a public servant in the discharge of his public functions or an expression in good faith of an opinion by respecting the conduct of any person touching any public question”VII. Because Hon’ble Patna High Court in Seema Seehar and Anr. Vs. State of Bihar and anr. 1992(1) CCR 148 Held that its not defamation to make any imputation on the character of another provided that the imputation was made in good faith for the protection of interest of maker or for public good.VIII. Because Hon’ble Patna High Court in Uttam Sengupta Vs. Bihar Public Service Commission 2001(3) RCR(CRIMINAL) 188 HELD that ‘News item published in a newspaper adversely commenting on a Government Department and its Head-News based on Audit Report-Offence of defamation not made out’11. NO OFFENCE OF 506 IPC IS MADE OUT: GROUNDSIngredients of offence of "criminal intimidation" as defined in Section 503 IPC and punishable under Section 506 IPC are as under:-Threatening a person with any injury;i. to his person, reputation or property; orii. to the person or reputation of any one in whom that person is interested.(2) Threatening a person with injury.i. to cause alarm to that person, orii. to cause the person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat, oriii. to cause that person to omit to do any act which that person is legally entitled to do so as the means of avoiding the execution of such threat.Therefore, in view of the aforesaid legal position the offence of 506 IPC is not made out on the below mentioned grounds:I. Because, the alleged telephonic call attributed to the Applicant/accused, attracting Section 506 is not supported with any evidence. There is no evidence to the effect that the caller telephone no. belongs to the Applicant/accused. Though, the deceased complainant had mentioned in the complaint that the Applicant/accused had made a telephonic call, but it does not mention that his wife (who has now entered into the shoes of complainant) was sitting with him. Now, the deceased’s wife has improved the statement by saying that at the time of receipt of telephonic call, she was sitting with him. However, its not the case that she heard the voice of the Applicant/accused and she recognised the voice of the Applicant/accused, as admittedly the Applicant/accused has no prior acquaintance with the complainant.12. Because even if the allegations are accepted in totality, no offence u/s 506 IPC is attracted. Even as per the complainant’s version the caller did not say that the deceased complainant would be defamed. Only attribution is that the ‘FIR will be lodged’ and ‘will have to face dire consequences’. Therefore, merely by saying the ‘FIR will be lodged’ or ‘will have to face dire consequences’, as it will not cause any alarm or injury to the complainant. If someone has not committed any wrong, the use word like ‘FIR will be lodged’ or ‘Will have to face dire consequences’ can not intimidate him. That the present case has reached to the stage of framing of charge after about 7 years and the Applicant/accused is not at all responsible for this delay. Therefore, the Fundamental Right of the Applicant/accused, i.e., Right to Speedy Trail, has been defeated. The Complainant has launched this prosecution only with a view to harass and humiliate the Applicant/accused and spoil his career prospects.13. That in the light of aforementioned facts and circumstances, no substantiating prima facie case was made out against the Applicant/accused; at least no prima facie case about the grave suspicion of his involvement is made out.It is, therefore, prayed that the Applicant/accused may be discharged, in the interest of justiceDATED: 30.01.2015 (PARDEEP KUMAR RAPRIA)PLACE: KAITHAL APPLICANT/ACCUSED
No comments:
Post a Comment