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(Guest)

Defamation or Malicious Prosecution can NEVER be initiated

 

Can Defamation/Malicious Prosecution NEVER be initiated till competent court helds that case filed was false?

Here below is the High Court judgement supporting what I have mentioned above.

Please go through 11th paragraph of this judgement and suggest what you feel.

SUBJECT : SUIT FOR DAMAGES



IN THE HIGH COURT OF DELHI AT NEW DELHI



Date of Reserve: January 22, 2009

Date of Order: March 02, 2009

IA No.10367/2007 in CS(OS) 569/2006

Prof. Imtiaz Ahmad ...Plaintiff

Through: Mr. Abhay N. Da, Advocate

Versus

Durdana Zamir ...Defendant

Through: Mr. Bahar U. Burai with Mr. Hanif Mohammad, Advocates

JUSTICE SHIV NARAYAN DHINGRA

ORDER

IA No.10367/2007

1. This suit has been filed by the plaintiff for damages on account of defamation and

for permanent injunction on the ground that defendant filed a complaint before the Crime

Against Women (CAW) Cell allegedly making defamatory allegations against him. The

plaintiff claimed damages to the tune of Rs.20 lac from the defendant.

2. The excerpts of the complaint which, according to the plaintiff amounted to his

defamation and entitled him to damages are as follows:

“(i) On the issue of dowry, my husband’s mother Jamila Begum, Nand (husband’s

sister Rakahanda), Second Nand (Rafia), my husband’s Khala Hasina and second Khala

Sabina and Khaloo Imtiaz Ahmad Ansari raised considerable noise (Hangama) and they

were calm down by efforts of my relatives.

(ii) In my in-laws’ house, my husband’s Khala (Aunt) and Khaloo (uncle), who lives

in JNU, Prof. Imtiaz Ahmad and his wife Sabina has considerable influence (dakhal).

(iii) You are requested to help me………….to see that there is no interference in my

family affairs of my husband’s aunt and uncle who live in JNU”.

3. It is contended by the plaintiff that plaintiff was a highly reputed person. He was a

professor of Sociology at JNU. He was internationally known and was visiting professor

in number of universities in USA, Canada, Italy and UK. He was a man of international

academic standards and had taken part in number of national and international

conferences and was a familiar voice on AIR, BBC, NDTV, ETV etc. He stated that he

had no contact with the defendant’s family or with the family of her husband except that

he had attended the marriage. At one point of time, the relations between defendant and

her husband became estranged and she had come to his house accompanied by her father,

mother and brother and asked him to interfere in the matter. However, since he was not

willing to take any interest or intervene in the matter, he refused. He stated that on the

basis of the complaint made by the defendant, an FIR No.611 under Sections 406, 498A

and 34 Indian Penal Code was registered by the police and he had to obtain anticipatory

bail.

4. It is submitted by plaintiff that in the complaint made by defendant, he has been

portrayed as a perpetrator of dowry demand and in his name Ansari has been deliberately

added since ‘Ansaris’ belong to lower community viz ‘Julaha’. He claimed that he was

renowned social psychologist and because of the assertions made by the defendant in her

complaint to CAW Cell and other authorities, his reputation received severe dent in

academic circles and among his colleagues and also towards the mammoth work that he

has done for the betterment of the society in general.

5. Defendant has made the instant application under Order 7 Rule 11 of CPC stating

therein that the plaint does not disclose any cause of action and was liable to be

dismissed. The claim of the plaintiff was based upon the facts stated in a complaint made

by the defendant to lawful authorities regarding her grievance against her in-laws. The

FIR lodged by her was under investigation and it has not been held by any Court that the

allegations made by the complainant (defendant herein) were false.

6. During arguments, it was also submitted that even if the allegations are taken per

se correct, no case for defamation of the plaintiff was made out from the averments made

in the complaint. Learned counsel for the plaintiff, however, denied that the plaint does

not disclose any cause of action and submitted that the allegations made in the complaint

by the defendant has lowered the image of the plaintiff in the eyes of society.

7. Under law of defamation, the test of defamatory nature of a statement is its

tendency to incite an adverse opinion or feeling of other persons towards the Plaintiff. A

statement is to be judged by the standard of the ordinary, right thinking members of the

society at the relevant time. The words must have resulted in the Plaintiff to be shunned

or evaded or regarded with the feeling of hatred, contempt, ridicule, fear, dislike or disesteem

or to convey an imputation to him or disparaging him or his office, profession,

calling, trade or business. The defamation is a wrong done by a person to another's

reputation. Since, it is considered that a man's reputation, in a way, is his property and

reputation may be considered to be more valuable than any other form of property.

Reputation of a man primarily and basically is the opinion of friends, relatives,

acquittance or general public about a man. It is his esteem in the eyes of others. The

reputation spread by communication of thought and information from one to another.

Where a person alleges that his reputation has been damaged, it only means he has been

lowered in the eyes of right thinking persons of the society or his friends/relatives. It is

not enough for a person to sue for words which merely injure his feeling or cause

annoyance to him. Injury to feeling of a man cannot be made a basis for claiming of

damages on the ground of defamation. Thus, the words must be such which prejudice a

man's reputation and are so offensive so as to lower a man's dignity in the eyes of others.

Insult in itself is not a cause of action for damages on the ground of defamation.

8. Where the words are used without giving impression of an oblique meaning but

the Plaintiff pleads an innuendo, asking the Court to read the words in a manner in which

the Plaintiff himself understands it, the Plaintiff has to plead that the libel was understood

by the readers with the knowledge of subject or extensive facts as was being understood

by the Plaintiff.

9. The plaintiff’s submissions that adding of caste”Ansari” against his name was per

say defamatory is very strange. The plaintiff claims to be the professor of sociology

working for the betterment of the society. If a professor of sociology has a notion and

thought that “Ansari” was a caste of lower class since it represents “Julaha’ community, I

can only take pity upon such ‘highly respected’ and qualified professors’. ‘Julaha’ means

‘weavers’. If those who weave clothes so that men may dress themselves, are of lower

caste than those who get dressed and are ungrateful must be of much lower caste, even if

they are professors. The allegations of plaintiff, who is professor are painful. The

Constitution of India does not recognize that caste of any person confers any superiority

or inferiority on him vis-à-vis others. The Constitution only recognizes deprived classes

under which Scheduled Castes or Scheduled Tribes fall and mandates positive action only

to bring them at par with the other members of the society so that they are not

discriminated by so-called high castes people. If a professor of sociology in our country

has this standard of social betterment, then God help this society.

10. The other imputations made to the defendant are also not defamatory in nature. It

is not the case of the plaintiff that he was not present at the marriage. It is the case of the

plaintiff himself that he attended the marriage of the defendant. If it is stated that a

Hungama was created by many from in-laws of the defendant, including the plaintiff, that

does not mean that the defendant made defamatory imputations against the plaintiff or the

defendant made a statement to cause an adverse opinion or hatred feelings of other

persons towards the plaintiff. As has already been observed above the statement is to be

judged by the standard of an ordinary person. The alleged words must have resulted in

the plaintiff to be shunned or evaded or inculcated a feeling of hatred and condemn. The

plaintiff continues to be the professor in JNU and he continues to a known voice at

different TV Channels. It is not the case that people have abandoned him or boycotted

him because of this imputation. The plaintiff has not named a single person who had

changed his opinion after filing of the complaint by the defendant.

11. Moreover, the defendant had a right to make complaints of her grievances to the

authorities. Whenever a person makes a complaint against someone to the lawful

authorities and in that complaint he makes imputations against the person complained of,

it cannot be considered that the person has publicized or publicly made defamatory

averments against a person. If a prosecution is initiated against the person on the basis of

such averments and the person is acquitted holding that the complaint was false, then

only a cause of action arises against the complainant for launching a case for false

prosecution or for damages on other grounds. Until and unless a competent court holds

that complaint was false, no cause of action arises. Approaching a competent authority

and praying that the authority should come to the rescue of the complainant and prevent

inference of the plaintiff in the family affairs of the defendant cannot amount to a

defamatory imputation per se and even if it is published, it does not tend to show that the

defendant had intended to lower the reputation of the plaintiff.

12. In view of the foregoing facts and circumstances, I consider that the plaint, even if

taken to be true, does not disclose any cause of action against the plaintiff. The suit of the

plaintiff is liable to be dismissed and is hereby dismissed.

Sd/-

SHIV NARAYAN DHINGRA J.



Learning

 4 Replies

Legal Fighter (Advocate)     10 July 2010

Below are the mandatory ingredients which plantiff has to prove for suit of damages for malicious prosecution.

1) That he was prosecuted by the defendant.

2) That the proceeding complained was terminated in favour of the present plaintiff

3) That the prosecution was instituted against without any just or reasonable cause.

4) That the prosecution was instituted with a malicious intention, that is, not with the mere intention of getting the law into effect, but with an intention, which was wrongful in fact.

5) That he suffered damage to his reputation or to the safety of person, or to security of his property.


(Guest)

Madhu,

In cited Judgment of Mr. Justice Dhingra he is saying how not to file a "defamation suit" I am for his logic by further quoting below observations on why "defamation" suits fails unless Court says the instituted prosecusion was "false" and or "malacious" (means finding should be there against which defamation suit to be instituted otherwise they all fail miserably is my view);

"Mere communication of defamatory matter to the person defamed is not enough. Publication should be made to others with intention to defame such person. Imputation means an accusation against a person and it implies an allegation of fact and not merely an abuse."

 

 

"It is not the personal opinion of petitioner herein about themselves that they hold a high image of themselves or that they have high moral character but what is material in a case under S. 500 IPC is that the image of the petitioner herein in the opinion of others (who have a high opinion of the petitioner herein) has been lowered, damaged or shattered after the publication of any defamatory remarks by the accused to the others.

 

"The petitioner herein have failed to show as to how the defendent have by words either spoken or intended to be read, or by signs or by visible repreentations, made or published any imputation concerning the petitioner herein intendening to harm, or knowing or having reason to believe that such imputation will harm, the reputation of the petitioner herein to defame him."

 

Rgds

1 Like

Bhartiya No. 1 (Nationalist)     11 July 2010

Even proving it and calculation of compensation amount is tough. How it can be proved that what exactly should be the compensation amount claimed under malocious/defamation suit?

Can it be filed after four years when the case has merit? Affected party failed to file due to misguide of the advocates.

1 Like

Bhartiya No. 1 (Nationalist)     12 July 2010

Lnd. Advocate Mr. Rajesh Kumar has very nicely described the naked truth in his postings on the same matter which I am pasting below

https://www.lawyersclubindia.com/forum/Re-Malacious-Prosecution-in-India-1370.asp

24 March 2008, 13:58

Rajesh Kumar

Advocate

Indian criminal law encourages malicious prosecution- persons including state can file criminal complaint against anybody without being accountable. Based on that complaint, the accused loses his social standing, job, reputation and everything and after a torture of 20-30 years, gets honorably acquitted. He never gets any compensation and the malicious prosecutor never gets punished.

Making false allegations has also become an industry in India, it is used to grab property, extort money or at least vengeance. Should the law encourage it? If not, why the laws are silent to see such excesses?

 

There are laws to in name to curb malicious prosecution. But the laws have been drafted by the Britishers in the colonial times when the master britishers were the prosecutors and slaves Indians were the accused. Those laws still exist. For example Section 211 of the IPC- in the history of more than 140 years of this section, no person has been convicted for this offence. The laws have been designed in such a manner that no person can be convicted. For example, there is a princely fine of Rs. 100 for illegal arrest- It is shame for our polity who permits such act in the name of law.


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