Dr. Swaran Singh, IAS vs Jaswant Singh

K.C. Gupta, J.—This is a petition u/s 482 Cr.P.C. filed by Dr. Swaran Singh for quashing the complaint dated 17.8.1996 filed by

respondent, Jaswant Singh, under Sections 499, 500 and 501 of Indian Penal Code and pending in the court of Judicial Magistrate 1st Class,

Chandigarh bearing Criminal Complaint No.222 of 21.8.1996 (Annexure P-1) and further for quashing order dated 17.3.1999 (Annexure P-5)

passed by Judicial Magistrate 1st Class, Chandigarh, in the aforesaid complaint whereby the petitioner has been ordered to be arrayed as accused

No.3 in the complaint and was ordered to be summoned.

Jaswant Singh filed a complaint against Vijay Kumar. Editor, Publisher and Printer of Punjab Kesari and Shri Raj Sadosh. a local Journalist,

who claimed himself to be a press correspondent of the Punjab Kesari Group of Newspaper, for preparing a false press report and the same was

published and printed by Vijay Kumar, Editor, Publisher and Printer of Punjab Kesari in the daily Punjab Kesari published from Jalandhar on

3.8.1996. The news item, which appeared in the Punjab Kesari, reads as under:-

ASSURANCE OF PROTECTION TO THOSE WHO MADE LOSS OF CRORES OF RUPEES TO SPINFED.

Abohar, 2 August (Raj Sadosh). Previous month after acute rumour of economic and moral bungling, Chief Minister Shri Harcharan Singh Brar

transferred President, Managing Director and Additional Managing Director of Spinfed. Out of which Additional Managing Director Sh. Jaswant

Singh, has been continuing his charge after ending three weeks. Sh. Jaswant Singh, sent to Spinfed after being involved in various disputes at

Jalandhar is President of State Civil Services (PCS). Present In ka Government had transferred him thrice but he has not relinquished his charge.

Reliable sources say that N.S. Kang, the new Managing Director of Spinfed has given an assurance of protection/safety to Sh. Jaswant Singh who

had not paid attention to the explanation of the then Managing Director in May, a 1996. A few months ago. Sales Manager Sh. Satish Suppal was

placed under suspension for the alleged bungling for the sale of cotton thread. Inquiry of the matter was handed over to Sh. D.S. Sandhu, General

Manager (Purchase) and without waiting for his report, new Managing Director has reinstated Sh. Suppal. In this matter, no need was felt to take

into confidence even the director of Division.

People interested in Spinfed say that a few interested instances are also linked with Spinfed office, being run in old Mark fed building in Sector 17,

Chandigarh. Cooperative Spinning Mills Employee''s Union has issued 5 eye opening episode, one of them. Senior Officer busy in meetings with a

woman officer after 5 O''clock is a special rumour. Even it has been said that the bills of higher moments spent in Hotels are also paid by the

Spinfed.

It was deemed more comfortable to deceive Spinfed in the name of export of cotton and cotton thread. This responsibility was performed by

Addl. Managing Director Sh. Jaswant Singh, with the active co-operation of Marketing and Export Manager Smt. Ajit Baveja. Families dealing in

export trade earned a lot by purchasing cotton thread from Spinfed. In the early stage, there was no complaint regarding quality but later on lacs of

rupees were siphoned off by making false complaints, in the name of degradation in quality as ''rebate''.

It is evident that the documents that the Addl. Managing Director had impressed the F.C., Cooperation by saying that in the previous year 25 to

30 percent in fervor cotton was purchased. Hence, strict rules were framed in case of purchasing. After publicising the same sub-standard cotton

worth crore of rupees was purchased.

It is said that during the year 1993-94, the Addl. Managing Director-sacrificed the interests of Spinfed for giving undue advantage of Ahmedabad

based thread seller. Godowns were taken on rent at Delhi, Ludhiana and Chandigarh without taking permission of Managing Director. Godown at

Chandigarh was taken on rent at about ten thousand per month.

It is said that the godowns were taken on rent to facilitate the thread sellers of Mumbai and Delhi but the profit was advanced only to the

Ahmedabad based firm purchasing goods amounting to Rs.200 lacs. It is also alleged that Spinfed sent the goods directly to retail customers by its

own sources to help this. firm in saving sale tax and manipulation of Sales tax. The amount recovered by Spinfed did not include freight, unloading,

loading expenditure, amount of insurance, rent of godown from different cooperative Mills at the State to Chandigarh based godown. Spinfed also

paid the expenses incurred in sending the goods to the customer of Ahmedabad based firm. Water, electricity, stationery and telephone expenses

were separate to it.

A complaint by a transport company was made to the then Cooperative Minister Shri Sajjan Kumar Jakhar that the officers of Spinfed are

demanding heavy bribe in lieu of giving contract. Sh. Jakhar had issued orders for enquiry but the report has not been submitted till today.

Spinfed suffered a loss of Rs.40 lacs due to purchase of sub-standard Nurma Cotton from Abohar. Shri Jakhar ordered for enquiry against the

Executive Officer, Shri S.K. Sood. The Enquiry Officer Shri S.D. Bhatti (Addl. Registrar) held Shri Sood guilty of irregularities of Rs.852 lacs but

the matter was disposed of by accepting the resignation of Shri Sood by influential persons of Spinfed.

The same happened in the case of another Administrative Director Shri N.D. Mehta. Shri Mehta was placed under suspension for the allegation

for purchasing sub-standard ring-frame for cooperative Mills situated at Abohar but this officer was also exonerated by accepting his resignation.

The Managing Director in the year called for explanation of the Additional Managing Director in regard to the irregularity pointed out by the

accounts personnel of Spinfed.

(1) Bungling to the tune of Rs.6 lacs concerning cotton made threads from Goindwal to Mumbai.

(2) Suffering because of demurrage to the tune of Rs.8.5 lacs due to adopting of wrong procedure in the export of cotton thread from Bhatinda to

Hongkong.

(3) Unauthorised exemption of Rs.376 lacs to the firm of Taiwan.

(4) Unauthorised payment of Rs.2 lacs to the Mumbai clearing agent.

(5) Paid Rs.83 thousands against unjustified claim of clearing agent.

(6) Remission of Sales Tax to the tune of Rs.2 lacs to the Ahmedabad based firm.

(7) One lac unnecessary rent of godown.

Shri R.K. Gupta, Executive Officer of Cooperative Spinning Mill located at Tapa was placed under suspension for the charges to misuse of official

vehicles and to have Rs.44,000/- as advance amount in his pocket. On 27th September, 1994 the Vigilance Department instituted a case against

Shri Gupta at Sangrur for purchasing of sub-standard 73 cotton bales. According to order of the Financial Commissioner the case of enquiry

against Shri Gupta was given to the Additional Managing Director on 1st June, 1995. Jaswant Singh visited Tapa and brought with him the sample

of cotton for checking. Neither the samples, nor the enquiry report has been submitted till now.

The misuse, of vehicles in Spinfed is so high that a Gypsy is sent for Kharar for taking only two litre milk daily. On June 13, 1996, Additional

Managing Director had entered in the Log-book that alongwith Satish Sappal. Purchase Manager, he went on official tour for purchasing cotton to

Karanpur (Rajasthan). In fact, no purchase there being made in those days. According to log-book, he reached there at 8.00 p.m. and left for

Chandigarh at 5.45 A.M. A rumour was there that what variety of cotton to be purchased at night. Then the entries were struck off. In reality the

family of Jaswant Singh went to see his relatives in his official vehicle. The vehicle covered 574 km. The vehicle''s driver has also given affidavit

about these irregularities.

However, Spinfed has not exported even one kg. cotton thread for two years but ten thousand monthly pay and so many facilities are being

provided to a Lady Officer as an Export Manager. Spinfed had paid a telephone bill of Rs.20700/- for his resident phone and paid Rs. 1,53,749/-

for official phone. A bill of Rs.2,34,184/- official phone and a bill or Rs.1,05,912/- residential phone has also been paid for Additional Managing

Director. The details of phone bill issued by Chandigarh Telephone Exchange from 15.11.95 to 16.1.96 for two months shows that 141 cal Is

which were done by the Additional Managing Director in these calls Karanpur and Japan calls are also including. It appears that most of the calls

are family calls.

The Cooperative Spinning Mill''s Workers Union has lost their faith in Punjab Government. Due to political crises, the bureaucracy have

completely taken over the control of the Administration. Now, therefore, demand is being made that scandals should be handed over to C.B.I.

It was further averred that the news item contained imputations directly concerning respondent (complainant), intending to harm him and both

the accused, namely, Vijay Kumar, Editor, Publisher and Printer of Punjab Kesari and Shri Raj Sadosh, a local Journalist, knew and had reason to

believe that such imputations which they had printed and published in the newspaper were false and would certainly harm his reputation and would

lower his moral and intellectual character. It was also averred that the said news item was published maliciously without making any proper enquiry

and they did not act with the care and caution. Therefore, the complaint was filed by Jaswant Singh only against Vijay Kumar, Editor, Publisher

and Printer of Punjab Kesari and Shri Raj Sadosh, a local Journalist and, against the petitioner Dr. Swaran Singh. It was simply mentioned in Para

No.3 of the complaint that Vijay Kumar had been meeting Dr. Swaran Singh, who had been instigating him to publish some material against

Jaswant Singh so as to tarnish his image as Swaran Singh was having ill will against him.

In order to prove the allegations, respondent (complaint) examined 13 witnesses.

On 19.4.1993, the learned Magistrate 1st Class, Chandigarh, passed the order, Annexure P-3, the relevant portion of which reads as under:-

The complainant has completed his preliminary evidence.

I have heard the Id. counsel for the complainant.

4.1 have perused the news-item in issue dated 3.8.1996 of Punjab Kesri which is alleged to be defamatory of the complainant. Specific allegations

have been made against the complainant in the said news-item pertaining to his role in the embezzlement of the public funds in the

purchase/procurement of cotton and export of yarn etc. In order to prove that the above said allegations are false, it was incumbent upon the

complainant to lead cogent evidence as to the above said specific allegations against him. However, the complainant has failed to lead any specific

evidence regarding the above said allegations. Accordingly, it is only appropriate that some evidence pertaining to the above said allegations made

against the complainant is brought on the record.

Accordingly, u/s 311 of the Code of Criminal Procedure, the court hereby directs that a notice be issued to the Managing Director of the

Punjab Cooperative Cotton Marketing and Spinning Mills Federation Ltd., Chandigarh directing him to produce the files pertaining to the matter as

indicated above as to the period during which the complainant remained posted in the said organisation on 5.7.1997.

Announced.

Sd/- A Judicial Magistrate 1st Class,

Chandigarh.

Thus, according to this order, it was observed by the learned Magistrate that specific allegations had been made against the complainant in the

said news item pertaining to his role in the embezzlement of the public funds in the purchase/procurement of cotton and export of yarn etc. In order

to prove that the above said allegations were false, it was incumbent upon respondent (complainant) to lead cogent evidence as to disprove above

said specific allegations against him. However, respondent had failed to lead any specific evidence regarding the above said allegations. Therefore,

learned Magistrate in his order dated 19.4.1997 had observed that the complainant had failed to lead any specific evidence rebutting the

allegations which had been made against him in the news item pertaining to his role in the embezzlement of public funds in the purchase/

procurement of cotton and export of yarn etc. Therefore, in view of Section 311 of the Code of Criminal Procedure, the Court directed that a

notice be issued to the Managing Director of Punjab Cooperative Cotton Marketing and Spinning Mills Federation Ltd.. Chandigarh, to produce

the files pertaining to the matter as state above.

After the passing of this order, respondent examined CW-14 Harinder Pal Singh, Sr. Assistant, IAS Branch, and CW-15 Kuldeep Singh,

Assistant. SPINFED, Chandigarh. Chandigarh. CW-14 stated that he had brought the original annual confidential reports of respondent and a

copy of the resume of the said confidential reports is Exhibit CW14/A. He also stated that photostat copy of the report of Shri Rajan Kashyap,

Financial Commissioner, Coop., in respect of the complaint regarding working of SPINFKD containing Pages 1 to 39 is Exhibit CW14/B. CW-

15 Kuldeep Singh stated that he had been working as Assistant in Establishment Branch of the SPINFED and maintained the records of the

explanation and action, if any taken thereof. He further stated that the explanations, which were sought from respondent Jaswant Singh, were

considered by the authorities and the same were filed and no explanation was outstanding. Thus, after order dated 19.4.1997 was passed by the

learned Magistrate, in which it was observed that respondent had failed to lead any specific evidence about rebutting abovesaid allegations, no

evidence worth the name had been led.

After recording evidence of the aforesaid two witnesses, the learned Magistrate vide his order dated 17.3.1999, Annexure P-5, ordered the

summoning of Vijay Kumar, Editor, Publisher and Printer of Punjab Kesari and Shri Raj Sadosh. a local Journalist under Sections 49/500 IPC

read with Section 120-B IPC. It was also ordered that Dr. Swaran Singh, petitioner, who had not been arrayed as accused be arrayed as accused

No.3 in the complaint and he was also ordered to be summoned as the learned Judicial Magistrate had prima facie formed opinion that Dr. Swaran

Singh, the Managing Director of SPINFED, had acted in connivance with Raj Sadosh and Vijay Kumar and got the news item published in Punjab

Kesari, Ajit, The Tribune and Hindustan Times, intending to harm the reputation of respondent in the eyes of the general public and his near and

dear ones.

Aggrieved by the said order, Annexure P-5, Dr. Swaran Singh has filed the present Criminal Misc. Petition for quashing the order, Annexure P-

5 as well as the complaint, Annexure P-1. However, Vijay Kumar, Editor, Publisher and Printer of Punjab Kesari, respondent No.2 and Shri Raj

Sadosh, Correspondent, respondent No.3 were ordered to be deleted vide Court''s order dated 17.1.2001 as their presence was not required for

the purpose of deciding the Criminal Misc. Petition.

I have heard Shri P.S. Hundal, counsel for the petitioner, Shri Joginder Singh Toor, counsel for the respondent and carefully gone through the

file.

Counsel for the petitioner contended that the learned Magistrate, on 19.4.1997, vide order Annexure P-3, had observed that specific

allegations had been made against the respondent, Jaswant Singh, in the news item pertaining to his role in the embezzlement of the public funds in

the purchase/procurement of cotton and export of yarn etc. but the evidence led by him was not sufficient and to was incumbent upon him to lead

cogent evidence regarding rebuttal of the abovesaid specific allegations against him. Therefore, the learned Magistrate had observed that the

respondent (complainant) had failed to lead any specific evidence rebutting the allegations, which had been made against him in the news item

pertaining to his role in the embezzlement of public funds. Consequently, in view of the powers vested in the court u/s 311 of the Code of Criminal

Procedure, the Court had directed the issuance of a notice to the Managing Director of the Spinning Mill Federation to produce the files pertaining

to the matter. After the said order, two witnesses were examined but those witnesses have not improved the case of the complainant in any manner

as they only produced the resume of the confidential reports of the respondent or the complaints against him, which, after obtaining explanation,

were filed. Hence, the learned Magistrate vide Annexure P-5 dated 17.3.1999. had passed a contradictory order i.e. completely contradictory to

the order dated 19.4.1997. Annexure P-3. One fails to understand as to how prima-facie case was found against Raj Sadosh, local Journalist and

Vijay Kumar, Editor, Publisher and Printer of Punjab Kesari and much less the petition to summon them under Sections 499/500 IPC.

There is another strange fact. The learned Magistrate had used his extra ordinary powers. The petitioner, Dr. Swaran Singh, had not been

cited as an accused. meaning thereby that the respondent had not filed any complaint against Dr. Swaran Singh. However, the Court suo-motu

ordered that he be arrayed as accused No.3 and be also summoned alongwith two other accused as he had connived with them to harm the

reputation of Jaswant Singh, respondent.

Section 199(i) of the Code of Criminal Procedure reads as under:-

Prosecution for defamation.- (1) No court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45

of 1860) except upon a complaint made by some person aggrieved by the offence.

Thus according to it, the Court is not competent to take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code

except upon a complaint made by some person aggrieved by the offence. Chapter XXI of the Indian Penal Code relates to the offences under

Sections 499 and 500 IPC. In view of the bar created u/s 199 of the Cr.P.C. the Magistrate was not competent to summon the petitioner as an

accused under Sections 499/500 IPC suo-motu, without being a complaint filed against him. Since, Jaswant Singh, respondent, was not aggrieved

against the petitioner, so, he did not array petitioner as an accused, in the criminal complaint, Annexure P-1.

Therein another aspect of the matter. Even after the preliminary evidence was recorded by the trial Court, the respondent (complainant) did

not make an application for summoning the petitioner as an accused/respondent u/s 319 of the Cr.P.C. Hence, the learned Magistrate was not

competent to summon him as an accused without the complaint of the respondent, Jaswant Singh, It is true that Section 2(d) defines ""complaint"" as

under:-

''2. Definitions - In this Code, unless the context otherwise requires,-

(a) to (c) xx xx xx xx

(d)""complaint"" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person,

whether known or unknown, has committed an offence, but does not include a police report.

Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be

deemed to be a complainant; and the police officer by whom such report is made shall be deemed to be the complaint;

According to the said definition of ""complaint"", if the allegations are made orally or in writing to the Magistrate with a view to taking action

under the Code, then it is said to be a complaint. It is true that in the present case the respondent had made a complaint and had made certain

allegations against the petitioner also i.e. regarding strained relations or that the petitioner was having ill will or malafide intention against him but

such allegations had not been made by the respondent with a view to take action under this Code. It has been observed by the Sikkim High Court

in J.L. Roy Vs. Amrit Lal Dey and Another, that for a prosecution for an offence of defamation under Chapter XXI of the Penal Code, a

complaint made by some person aggrieved is a sine qua non under the mandatory provisions of Sections of Section 199 of the Cr.P.C.

Section 499 of the Indian Penal Code defines, ""defamation"" as under:-

Defamation.- Whoever, by words either spoken or intended to be read, 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.

Thus, according to the definition of ""Defamation"" if a person by words either spoken or intended to be read, or, by visible representations,

makes or publishes any imputation concerning any persori intending to harm or knowing or having reason to believe that such imputation will harm

his reputation, then he is said to defame such person. In the present case, there is no allegation that the petitioner has spoken any words or had

written anything or by signs or visible representations or had published any imputation concerning the respondent intending to harm his reputation.

Whatever allegations had been made, the same had been made by Raj Sadosh, Journalist and Vijay Kumar, Editor, Publisher and Printer of

Punjab Kesari. So, prima-facie, no case is made out under Sections 499/501 IPC against the petitioner. Thus, the learned Magistrate, by

summoning the petitioner, has exercised jurisdiction with material irregularity and illegality, which has vitiated the impugned order, Annexure P-5.

Hence, the continuation of the proceedings against the petitioner is an abuse of the process of law and the Court.

Therefore, the Criminal Misc. Petition is accepted and the complaint, Annexure P-1, and the impugned order, Annexure P-5 and the subsequent

proceedings flowing in pursuance thereof, qua the petitioner are quashed.