# Smt. Geeta Tiwari v. Kashinath and another

- **Citation:** (2005) 2 ILRA 657
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-12
- **Case number:** Criminal Misc. Application No. 8063 of 1997
- **Bench:** Mrs. Poonam Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-geeta-tiwari-v-kashinath-and-another-40513
- **Pages:** 5

## Headnote

Code of Criminal Procedure-Section 482applicant filed complaint-alleging the
offence committed by the opposite Party
No. 2-who in its official capacity replied
the Quarry make by the applicant for non
Payment of the salary of her husbandand also for not making visit to her
company for last four months-Courts
below held the letter written under
official capacity in bonafide mannerhence no offence made out-accordingly
complaint rejected at the same time
passed
an
order
of
acquittal-heldimpugned Order suffer no illegality or
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
658
any miscarriage of justice-call for no
interference.

Held: Para 6

After going through the entire record
and the perusal of the ingredients of
Section 499 I.P.C. the facts of the case
would not constitute the offence of
'defamation', I am of a considered
opinion that the alleged letter was firstly
written in good faith and only an opinion
was disclosed to the applicant, that too
in compliance of the direction of the
District Magistrate. Assuming that the
imputation
was
made
against
the
applicant's husband, it was in good faith
for the protection of the interest of the
wife (applicant) who herself had asked
for information about her husband as his
whereabouts was not known since last
four months. The letter was only by way
of a caution intended for the good of the
person.

## Text

2 All] Smt. Geeta Tiwari V. Kashinath and another 657

13. It may be emphasized that
democratically elected Pradhan should not
be removed from the office at the dictates
of the administrative authorities, nor
every negligence or mistake on his part
can be made a foundation for exercise of
power under Section 95 (1)(g) Subsection 3. The provision of Section
95(1)(g) must necessarily be construed
strictly and it is only in cases of positive
and deliberate action of the Pradhan
concerned, to derive personal benefit by
misusing his official position that an order
for his removal under Section 95(1)(g)
Sub-section 3 could be passed. Loss
caused to the Gram Panchayat because of
some mistake or negligence of the
Pradhan, which is neither delibrate nor
intended for any personal benefit, has
been taken care of by rule 256 of the
Panchayat Raj Rules and in such cases
order as contemplated by rule 256 alone is
required to be passed.

14. It is, therefore, necessary for
removal of the elected Pradhan under
Section 95 (1)(g) that a finding should be
recorded that the Pradhan has deliberately
misused his official position so as to
derive benefit by his act and in absence of
a finding so recorded, the order of
removal cannot be sustained.

15. It is further worthwhile to
mentioned that the statement in the
impugned order that the elected Pradhan
has misappropriated government money,
is factually incorrect inasmuch as there
was no such allegation nor any facts in
that regard have been noticed in the
impugned order.

16.

In
the
totality
of
the
circumstance as borne out from record of
the petition, the order dated 16.4.2005,
passed
by
the
District
Magistrate,
Hamirpur cannot be legally sustained and
is hereby quashed. However, this order
shall not prejudice the recovery of the loss
caused to the Gram Panchayat on the
basis of the assessment made during the
enquiry proceedings in accordance with
rule 256 of the Panchayat Raj Rules
against the Petitioner.

17. In view of the aforesaid writ
petition is allowed. Petition Allowed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.07.2005

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Criminal Misc. Application No. 8063 of
1997

Smt. Geeta Tiwari

...Applicant
Versus
Kashinath & another ...Opposite Parties

Counsel for the Applicant:
Sri V.C. Tiwari
Sri Ashwini Kumar Awasthi
Sri Manish Tiwari

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section 482applicant filed complaint-alleging the
offence committed by the opposite Party
No. 2-who in its official capacity replied
the Quarry make by the applicant for non
Payment of the salary of her husbandand also for not making visit to her
company for last four months-Courts
below held the letter written under
official capacity in bonafide mannerhence no offence made out-accordingly
complaint rejected at the same time
passed
an
order
of
acquittal-heldimpugned Order suffer no illegality or
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
658
any miscarriage of justice-call for no
interference.

Held: Para 6

After going through the entire record
and the perusal of the ingredients of
Section 499 I.P.C. the facts of the case
would not constitute the offence of
'defamation', I am of a considered
opinion that the alleged letter was firstly
written in good faith and only an opinion
was disclosed to the applicant, that too
in compliance of the direction of the
District Magistrate. Assuming that the
imputation
was
made
against
the
applicant's husband, it was in good faith
for the protection of the interest of the
wife (applicant) who herself had asked
for information about her husband as his
whereabouts was not known since last
four months. The letter was only by way
of a caution intended for the good of the
person.

(Delivered by Hon'ble Mrs. Poonam Srivastava, J.)

1. Heard Sri Manish Tiwary, learned
counsel for the applicant, Sri D.S. Tiwari
Advocate, assisted by Sri Bajrangee
Mishra Advocate for the opposite party
no. 1 and learned A.G.A.

Counter and rejoinder affidavits have
been filed which are on record.

2. The applicant has challenged the
order dated 4.10.1997 passed by the
Sessions Judge, Azamgarh in Criminal
Revision No. 152 of 1997 confirming the
order dated 15.4.1997 in case No. 490 of
1995,
whereby
the
Chief
Judicial
Magistrate,
Azamgarh
rejected
the
complaint filed by the applicant and
passed an order of acquittal under Section
500 I.P.C.

3. The facts giving rise to the
dispute is that the husband of the
applicant was posted as Sayayak Krishi
Nirishak
at
Block
Tarwa
and
the
contesting opposite party was working as
Vikas Khand Adhikari, Tarwa. A letter
was written by the applicant to the
District Magistrate, Azamgarh inquiring
the reason for non payment of salary of
her husband and also making a complaint
that her husband has not come home since
last four months, though he has written
three
letters
requesting
his
wife
(applicant) to arrange for some finance so
that he can give it to the concerned officer
for releasing his salary. The applicant
Smt. Geeta Tiwari had written in that
letter, twice, that she had to sell her
jewelry and now she is not left with no
money to look after herself and her minor
children. She had very clearly enquired as
to why the salary of her husband is not
being paid and also expressed her doubt
whether her husband is telling truth so
that she may be able to take suitable steps.
The District Magistrate, Azamgarh had
marked the letter to the opposite party no.
1 for making inquiry vide order dated
5.7.1994. The said letter has been
annexed along with counter affidavit as
Annexure-CA-3. An order was passed by
the District Magistrate, Azamgarh on 5.7.
1994 on the letter itself. In reply to the
said letter, the contesting opposite party
informed that certain charges are levelled
against the applicant's husband and it is
for this reason the salary is not being paid.
Regarding the question as to why her
husband is not coming home since last
four months, he has clearly informed that
a respectable lady visits her husband and
this information has been given by a
number of persons. It is presumed that the
visiting lady is none else but wife of Gyan
Prakash Tiwari i.e. applicant herself.
2 All] Smt. Geeta Tiwari V. Kashinath and another 659
However, since she herself has expressed
doubt about the conduct of her husband, it
is better she should make enquiries in the
matter so that she may not be faced with
any grave and untowards situation. Copies
of the letters were also sent to the District
Magistrate,
Assistant
Agriculture
Inspector
Tarwa
and
Director
of
Agriculture, Lucknow. This letter sent in
reply, was complained to be defamatory
in nature and consequently a complaint
under Section 500 I.P.C. was instituted
against the opposite party no. 1 by the
applicant. This was challenged in this
Court on the ground that the letter was
written in his official capacity as such a
prior sanction under Section 197 Cr.P.C.
was necessary before any prosecution
could commence against the accused
opposite party no. 1. An application was
filed under Section 482 Cr.P.C. before
this Court which was numbered as
Criminal Misc. Application No. 461 of
1997-Kashi Nath Vs. The State of U.P.
and others. This Court had disposed of the
application vide order dated 3.2.1997
directing the applicant to move an
application
before
the
Magistrate
concerned regarding the question of
sanction under Section 197 Cr.P.C. which
shall be disposed of expeditiously by a
speaking order and till the disposal of the
application, the arrest of the accused
under Section 500 I.P.C. in case crime
No. 490 of 1995 was stayed. A copy of
this order has been annexed along with
counter affidavit as Annexure CA-5. In
pursuance to the aforesaid direction, the
Chief Judicial Magistrate passed an order
dated 15.4.1997 to the effect that the
prosecution could not continue for want
of necessary sanction and also that the
letter written by the accused will not
amount to defamation within the meaning
of Section 500 I.P.C. and the applicant
was acquitted vide order dated 15.4.1997.
This order was challenged by filing
Criminal Revision No. 152 of 1997-Geeta
Tiwari
Vs.
State
which
was
also
dismissed on 4.10.1997 by the learned
Sessions Judge, Azamgarh. This order is
impugned in the present application. A
preliminary objection has been raised by
the learned counsel for the opposite party
no. 1. He has submitted that since the
sentence provided for an offence under
Section 500 I.P.C. is simple imprisonment
for a term which may extend for a period
of two years or fine or with both. The case
is a summon case. Definition of summon
case is provided in Section 2(w) Cr.P.C.
which is as under:-

"Summon case means a case relating
to an offence and not being a warrant."

4. It is, therefore, argued that it was
a summon case and the order dated
15.4.1997 clearly shows that the applicant
is acquitted. In the circumstances, an
appeal against the said order was
maintainable but a revision could not be
entertained. Sri Tiwari has emphasized
that since the applicant failed to prefer an
appeal against the order of acquittal, his
revision could not be entertained under
Section 401(4) Cr.P.C. Second argument
advanced by Sri Tiwari is that the
complaint was dismissed and the accused
were acquitted not only for want of
sanction but also after recording his
finding that the letter written by the
accused to the complainant (applicant)
was only with an intention to give her
information, which she had asked for
from the District Magistrate and in no
way, it can constitute a case under Section
500 I.P.C. Sri Manish Tiwary has
emphatically argued that the learned
Magistrate proceeded to decide the
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
660
application in pursuance to the direction
of
this
Court
in
Criminal
Misc.
Application No. 461 of 1997. The order
was very specific directing the Magistrate
to decide the question of grant of sanction
by a speaking order. In the circumstances,
no order on merit could be passed and it
will be treated that the order dated
15.4.1997 was only in respect of the
question of sanction and it can not be said
that it is an order of acquittal. It is,
therefore, emphasized that the order dated
15.4.1997 was a revisable order and the
learned Sessions Judge committed an
illegality while dismissing the criminal
revision
No.
152
of
1997.
While
dismissing the revision, a finding was
recorded that the letter dated 11/12.7.1994
was sent by the accused Khand Vikash
Adhikari in reply to the letter of the
complainant herself, as such it was she,
who has invited the information, rather
than the Khand Vikash Adhikari had tried
to malign the reputation either of the
complainant or her family. The revisional
court had concluded that the letter was
written in discharge of official duty,
certainly permission to file complaint was
required under Section 197 Cr.P.C. It is
also noteworthy that the inquiry was made
by the complainant on account of the
reason that the District Magistrate had
passed
an
order
directing
the
accused/opposite party to look into the
matter and give an appropriate reply,
which was done by the Khand Vikas
Adhikari. It is thus clear that the letter
sent in reply was in compliance to the
direction of the District Magistrate and
therefore, in discharge of his duty. The
Khand Vikas Adhikari was duty bound to
give a reply and necessary information on
account of the order of the District
Magistrate. In the circumstances, if the
courts below were of the view that the act
done by the accused was in discharge of
his official duty, there is no illegality.
Besides the allegation of the complaint do
not constitute an offence of defamation
within the meaning of Section 499 I.P.C.,
which defines Defamation as:-

"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."

5. There are ten exception given in
the Indian Penal Code to Section 499
I.P.C. If the facts alleged are covered
within any of the exceptions of Section
499 I.P.C., no offence of Defamation is
made out. The facts of the present case
squarely comes within the fold of 3
categories of exception.

Third Exception- Conduct of any
person touching any public questionIt 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.
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 interests of the person
making it, or of any other person, or for
the public good.
2 All] Deena Nath Arora and others V. State of U.P. and another 661
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.

6. After going through the entire
record and the perusal of the ingredients
of Section 499 I.P.C. the facts of the case
would not constitute the offence of
'defamation', I am of a considered
opinion that the alleged letter was firstly
written in good faith and only an opinion
was disclosed to the applicant, that too in
compliance of the direction of the District
Magistrate. Assuming that the imputation
was made against the applicant's husband,
it was in good faith for the protection of
the interest of the wife (applicant) who
herself had asked for information about
her husband as his whereabouts was not
known since last four months. The letter
was only by way of a caution intended for
the good of the person.

7. In the circumstances, I do not
consider that the impugned orders suffer
from any illegality and it can not be said
that it amounts to an abuse of the process
of the court or any miscarriage of justice,
which calls for interference in exercise of
inherent powers. The objections of Sri
Tiwari to the effect that an appeal was
maintainable against the order of acquittal
also appears to be well founded. The
applicant had instituted the complaint on
6.1.1995 and is continuing to pursue the
complaint,
which
stands
already
dismissed in the year 1997. In fact it is the
contesting opposite party who has been
subjected to undue harassment despite the
fact he was acquitted on 15.4.1997. The
Apex Court has continuously held that the
High Courts should be slow in reversing
the order of acquittal unless there are
strong and good ground to hold that the
order of acquittal by the trial judge suffers
manifestly from gross illegality otherwise
it should not be interfered with. The
Magistrate while passing the order dated
15.4.1997 has clearly given a finding that
the alleged letter do not constitute an
offence of defamation and he prima facie
did not consider it a fit case for
summoning the accused to face the trial.
In the circumstances, the argument of the
counsel for the complainant/applicant do
not inspire any confidence. It is a case
where the view taken by the courts below
can not be said to be perverse or at any
rate which was not reasonably possible. In
the circumstances, I do not find that the
revisional
order
challenged
in
this
application suffers from any illegality.
The application is accordingly, rejected.

 Application Rejected.

---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2005

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Criminal Misc. Application No. 5372 of
2000

Deena Nath Arora & others...Applicants
Versus
State of U.P. & another...Opposite Parties

Counsel for the Applicants:
Sri R.L. Shukla
Sri J.C. Bhardwaj
Sri S.S. Pal