# Smt. Geeta Tiwari v. Kashinath and another

- **Citation:** (2005) 4 ILRA 1154
- **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-40570
- **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 query made by the applicant about
non payment of the salary of her
husband-and also for not making visit to
her company for last four months-Court
below held the letter written under
official capacity in bonafide manner
hence no offence made out, according
the complaint rejected at the same time
passed
an
order
of
acquittal-held
impugned orders suffers no illegality or
any miscarriage of justice-call for no
interference.

Held: Para 6

After going though 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 and 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 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

1154 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
taken after expiry of the stipulated period,
instead of dismissing the complaint out
right as premature. The court should have
taken cognizance only after necessary
period had lapsed in accordance with law
and
cognizance
should
be
taken
subsequently. Since the complaint has
been dismissed summarily, the applicant
has no other alternative but to approach
this Court for redressal of its grievance.

5. For the reasons discussed above,
the application is allowed and the
impugned orders dated 27.3.1995 and
16.8.1997 are set aside. The trial court is
directed to proceed afresh and decide the
question afresh on merits.
---------
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 and another...Opposite Parties

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

Counsel for the Opposite Parties:
Sri D.S. Tiwari
Sri Bajrangee Mishra
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 query made by the applicant about
non payment of the salary of her
husband-and also for not making visit to
her company for last four months-Court
below held the letter written under
official capacity in bonafide manner
hence no offence made out, according
the complaint rejected at the same time
passed
an
order
of
acquittal-held
impugned orders suffers no illegality or
any miscarriage of justice-call for no
interference.

Held: Para 6

After going though 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 and 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 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. Tiwary
Advocate, assisted by the Sri Bajrangee
Mishra Advocates 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
4 All] Smt. Geeta Tiwari V. Kashinath and another
1155
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 able to make 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 the 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. However, since she
herself has expressed doubt about the
conduct of her husband, it is better she
should making inquiries 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
District
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
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
1156 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
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 challenging 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 warrant."

4. It is, therefore, argued that it was
a summon case and the order dated
15.4.1997 clearly show 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
wee acquitted not only for want of
sanction but also after recording his
finding that the letter written by the
accused to the complaint (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
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 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
Session 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 Vikas Adhikari in reply to
the letter of the complainant herself, as
such it was she, who has invited the
information, rather than the Khand Vikas
Adhikari
had
tired
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 given 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
4 All] Smt. Geeta Tiwari V. Kashinath and another
1157
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
sings by visible representations, makes or
publishes any imputation concerning any
person intending to 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 Panel 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 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.
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.
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
interested, or for the public good.

6. After going though 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 and 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 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 institute 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
1158 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
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 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 tail. In the circumstances, the
argument
of
the
counsel
for
the
complaint/applicant do not inspire any
confidence. It is a case where the view
taken by the courts below can not be said
to the 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.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2005

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 12979 of 1999

Gopal Ji Trivedi

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare

Counsel for the Respondents:
S.C.
U.P. Intermediate Education Act-1921
Chapter
III
Regulation
103Compossionate appointment-on the post
of Trained graduate teacher-in minority
institution-not
permissible.
However
such dependant of deceased teacher
working in minority institution can be
appointed-on
non
teaching
postnecessary direction issued.

Held: Para 23, 24 and 25

It is further to be noted that although
with regard to appointment on the
teaching post of the dependent of the
deceased employee in a non-minority
institution there is a specific provision as
contained in Section 16 third proviso and
regulation 103 but there is no express
provision permitting the appointment of
dependent of deceased employee on a
teaching post in a minority institution.
This is obvious because legislature is
concious that permitting appointment on
teaching post on compassionate ground
is
violative
of
rights
of
minority
guaranteed under Article 30 of the
Constitution of India.

As
held
above,
the
dependent
of
deceased
employee
of the minority
institution
is
not
entitled
for
appointment on teaching post, hence his
claim for appointment on teaching post
in non-minority institution can also not
be
considered.
The
alternative
submission raised by the counsel for the
petitioner can also not be accepted.

The Governing Body of the registered
Society
designated
as
St.
Andrew's
College
Association,
Gorakhpur
and
another Versus State of U.P. and others
(supra) the dependent of deceased
employee of a minority institution is
entitled
for
consideration
for
appointment on a non teaching post. The
claim of the petitioner for appointment
against the non teaching post requires
consideration
by
the
respondents.
Consequently, the respondent no. 4 is
directed to consider the claim of the
petitioner
for
compassionate
appointment against non teaching post
as dependent of deceased employee
expeditiously preferably within a period