'Magistrate Mechanically Issued Process': Bombay High Court Quashes Summons In Defamation Case Against Future Generali MD, Legal Head

Justice Anil S. Kilor was dealing with a petition challenging the order of issuance of process against the applicants for offence of defamation under Section 500 of the IPC. The alleged defamation had occurred in a written statement filed by the company in a suit.

Examining the question as to who would be responsible for an offence committed by a company, the court relied on Sunil Bharti Mittal v. CBI wherein the Supreme Court said that the person who committed the offence on behalf of a company can be made accused along with the company if there is sufficient evidence of criminal intent and effective role of the person.

"Moreover, there is no vicarious liability in criminal law unless the statute takes that also within its fold. Even under a special statute when the vicarious criminal liabilities fastened on the person on the premise that he was incharge of the affairs of the company and responsible to it, all the ingredients laid down under the statute must be fulfilled," the court said.

Reiterating that Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Director of the company when the accused is a company, the court said:

"Moreover, there are no pleadings how the vicarious criminal liability is fastened on them [applicants] on the premise that they are in charge of the affairs of the applicant No.1 company and responsible to it. There are no pleadings to prima facie disclose their active role coupled with criminal intent"

One employee was terminated from the post of General manager in Future General India Life Insurance Company Limited in 2011. He filed a suit against the termination. In that suit, the company, in a written statement, stated that there was a sexual harassment complaint against him from a lady subordinate staff.

The employee had filed a criminal complaint in 2012 against the company and its Managing Director as well as the Legal Head accusing them of defamation. The Judicial Magistrate First Class issued summons against the accused. The applicants filed a revision petition against this order which was dismissed. Hence, the applicants approached the High Court.

The complainant raised preliminary objections to the maintainability of the present application. He argued that applicants are not persons aggrieved under section 482 of the Cr.P.C. as they did not suffer any legal injury or denial of a legal right. Further, it is mandatory to make the State a respondent in proceedings under section 482 of the Cr.P.C. which has not been done in the present case. He also submitted that alternate remedies are available to the applicants.

The court said that issuance of process is a serious matter, hence it cannot be said that the applicants are not aggrieved persons.

"As far as second objection that in the proceedings under Section 482 of the Cr.P.C. it is mandatory to add the State as party, the said submission is misconceived as the provision does not say so. Moreover, the present proceeding is arising out of a complaint between private parties, therefore, the State is not the necessary party in the present proceedings," it added while rejecting the second objection.

The court also stated that there's no total ban on exercising inherent powers of High Court if abuse of process or other extraordinary situations warrant exercise of its jurisdiction. Therefore, the court rejected the preliminary objections and decided the case on merits.

It was the case of the applicants that pleadings to fulfil the prerequisites of Section 499 of the IPC are absent in the complaint. They also argued that the alleged defamatory statement was made in defence and in good faith; therefore, it falls under the ninth exception to section 499 of the IPC. There are no pleadings related to the mens rea of the accused, the court was told while arguing that the complaint itself was not maintainable.

The complainant submitted that both the lower courts have recorded specific findings that a prima facie case is made out under section 499 of the IPC. Hence, order of process is sustainable. Whether the case falls under 9th exception of the IPC is a matter of evidence and can be established at trial, he said. It was also contended that any defamatory statements in the written submission during legal proceedings amounts to publication and hence prerequisites of section 499 of the IPC are fulfilled.

The court reiterated that mere publication of an imputation does not constitute defamation unless it has been made with the intention to harm or knowledge that it will harm the reputation of the concerned person.

The court noted that the Supreme Court in various judgements has reiterated that a criminal case is a serious matter and the magistrate has to carefully scrutinize the evidence before issuing summons. The court relied on Subramanian Swamy v. Union of India in which the Supreme Court held that the magistrate has a heavy burden to scrutinize the complaint from all aspects.

The court examined the complaint filed by the complainant and noted that there is no averment that the alleged defamatory statement is with intention to harm or with the knowledge that it will harm the reputation of the complainant. Therefore, the court concluded that the complaint does not fulfil prerequisites of section 499 of the IPC.

The court further noted that the Magistrate has not recorded that there was an intention to harm the reputation of the complainant. It is evident that the magistrate has not dealt with the mens rea or criminal intention, the court said. He has not even considered whether sufficient pleadings are made by the complainant regarding mens rea of the applicants, it added

"If mens rea or criminal intention is lacking or is missing in the act of the accused, he cannot be held guilty for an offence of defamation within the meaning of Section 499 of IPC"

The court concluded that the magistrate has not recorded prima facie satisfaction about the role played by the applicants as Legal head and MD of the company.

"Thus, on this ground also in absence of necessary pleadings to show that there is any vicarious criminal liability, on the premise that they are in-charge of affairs of the company and responsible for it coupled with their criminal intent, the complaint itself is not maintainable against the applicant Nos. 2 and 3 and issuance of process against the applicant Nos. 2 and 3 is illegal and amounts to abuse of process of law," it added.

The court said the magistrate mechanically issued the process against applicants without applying his mind to the essential ingredients of section 499 of the IPC and without examining the role of applicants and whether there is any vicarious liability against them. Therefore, the court set aside the impugned judgement of the Magistrate issuing process as well the order of the revision court upholding it.

Case no. – Criminal Application (Apl) No. 679 of 2019

Case title – Future Generali India Life Insurance Company Limited, v. Partha S/o. Sarathy Sarkar,

Citation: 2022 LiveLaw (Bom) 470