IN THE COURT OF SHRI SUMEET ANAND, METROPOLITAN MAGISTRATE07, PATIALA HOUSE COURTS NEW DELHI DISTRICT: NEW DELHI CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla 18.03.2020
:ORDER:
1. Dr. Abhishek Singhvi (hereinafter complainant / aggrieved), son of Late Dr. L.M. Singhvi (hereinafter deceased) has approached this court by way of a complaint, made under section 200 read with section 190 of Code of Criminal Procedure, 1973 (hereinafter Cr.P.C.), seeking summoning and trial of Sarosh Zaiwalla (hereinafter proposed accused) for commission of offence under section 499 of the Indian Penal Code, 1860 (hereinafter IPC) and to punish the proposed accused as per section 500 IPC.
2. The complainant is aggrieved by a passage contained in the book written by the proposed accused titled as, 'HONOUR BOUND ADVENTURES of an INDIAN LAWYER in the ENGLISH COURTS'. The book has already been published and is in circulation and available for reading.
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 1 of 27 3. The complainant alleges that in the concerned passage the proposed accused has made a speculative reference of the deceased, which the complainant contends to be inherently defamatory and clearly libelous on the face of it; and having been made with an intention to cause serious harm to the reputation of the complainant; and also made with an intention to be hurtful to the feelings of the family and relatives of the deceased.
4. The complainant also claims to be aggrieved by the statements made by the proposed accused, after the publication and in relation to the book authored by him, in his interview with the daily newspaper Times of India, which was published on 23.02.2020. The complainant alleges that the statements made by the proposed accused in the above referred interview are inherently defamatory and clearly libelous on the face of it; and having been made with an intention to cause serious harm to the reputation of the complainant; and also made with an intention to be hurtful to the feelings of the family and relatives of the deceased.
5. The complainant, as per the averments made in the complaint claims to be a reputed and respected member of society; and a renowned lawyer across India; and eminent jurist, a Parliamentarian, a Columnist, an author, commentator and a visible media personality. He also claims to be designated as a Senior Advocate
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 2 of 27 by Hon'ble Supreme Court of India at the age of 34 and also to have served as Additional Solicitor General at the age of 37 and that these distinctions are probably amongst the youngest accorded in India. He also claims to be one of the senior most National Spokesperson of the Indian National Congress Party and a senior and distinguished third term Member of Parliament in the Upper House.
6. Furthermore, the complainant as per the averments made in the complaint, claims to have been awarded the Global Leader of Tomorrow Award by World Economic Forum, Davos. That he also served as the Chairman of the Parliamentary Committee on law and justice, personnel and grievance. That he is a top ranking senior advocate of the nation with expertise in various fields of law including, but not limited to constitutional, international and commercial law. That he undertakes probono work and also helps freshers and other colleagues in the field of law, for which he is highly respected among the bar members. That, in view of his achievements, he is regularly invited as guest at various events and seminars for discussions on various aspects of law; and also for lectures in law schools. That there are various reported judgments in law journals such as SCC, JCC etc. in which he was a counsel; and therefore he has contributed vastly in the development of law.
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 3 of 27 7. The complainant, as per the averments made in the complaint claims that the deceased was also an eminent jurist, a leading constitutional expert, an acclaimed diplomat, a distinguished parliamentarian, an exponent of human rights, a doyen of Indian bar, an author, a poet, a publicist, a linguist and a litterateur. That he was a gold medalist in B.A. from Ahallabad University and an LL.B and M.A. from Jaipur University. That he was Rajasthan's first Rotary Schooler to Harvard University for his LLM. That he also completed PhD/JSD from Cornell University, USA in a record two years.
8. Furthermore, the complainant as per the averments made in the complaint claims that the deceased served as Advocate General of Rajasthan from 1972 to 1977. That he served as a Parliamentarian in both Houses of Indian Parliament. That he has the distinction of serving as one of the longest serving High Commissioners for India to the United Kingdom from 1991 to 1997, a period which was widely acclaimed as the ‘Golden Era’ of IndoU.K. relationship. That during his tenure of High Commissioner to U.K. he covered the tenure of three British Prime Minister and five Indian Prime Ministers. That he also headed Indian delegation to the UN conference on human rights in Vienna in the year 1933.
9. Furthermore, the complainant as per the averments made in the complaint claims
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 4 of 27 that the deceased served as President of Indira Gandhi National Centre for Arts. That he was a Member of Permanent Court of Arbitration at the Hague and was also a part of Commission of enquiry into administration of justice in Trinidad and Tobago. That he was described by former Prime Minister of India Late Sh. Atal Bihari Vajpayee as 'Saraswati – Putra'.
10. Complainant contends that the deceased earned immense name, fame and reputation in public at large through his sheer hard work. He further contends that he has scrupulously followed ethics in his advocacy and has unblemished record and that by working with complete honesty he had earned name, fame and reputation in the eyes of public at large through his sheer hard work.
11. The complainant in support of his claims and the averments made in the complaint, and in order to prove the same, himself stepped in the witness box; and at the stage of presummoning evidence he has been examined as CW1. In order to prove harm to his reputation and to the reputation of the deceased he examined CW2 Sh. Sumit Chander. No other witness has been examined by the complainant at the stage of presummoning evidence.
12. During his examination as CW1, the complainant placed on record one
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 5 of 27 copy/edition of the book written by the proposed accused. He also placed on record the copy/edition of newspaper Times of India dated 23.02.2020. He has also placed on record one letter dated 09.03.2020 written to him by one Vir Sanghvi on his letter head and bearing his signatures. In the said letter Vir Singhvi refuted to be the source of the alleged defamatory content published by the proposed accused in his book, as claimed by the proposed accused. These three documents are part of record and are exhibited as Ex.CW1/2, Ex.CW1/3 and Ex.CW1/4 respectively. The copies of these documents were already filed on record alongwith the complaint itself.
13. The signatures of Vir Sanghvi on Ex.CW1/4 at point 'A' have also been identified by the complainant in his testimony, recorded before the court as CW1, on the strength of the fact that he has seen his signatures on a number of occasions.
14. This court has perused the entire record and has carefully considered the evidence led by the complainant and his witnesses at the stage of pre summoning evidence. This court has also perused the documents placed on record and exhibited as evidence. The alleged defamatory portion / content, made in reference to the deceased, in the book titled as 'HONOUR BOUND ADVENTURES of an INDIAN LAWYER in the ENGLISH COURTS' is contained at
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 6 of 27 page 103 and 104. These two pages are part of one of the chapters / episode out of the total twelve chapters / episodes contained in the said book. Each chapter is distinct. This court has read chapter / episode five fully, which it titled as, “Bollywood, Bachchans and consequential damage”. This court has also read the entire interview of the proposed accused containing the defamatory portion / content in newspaper Times of India dated 23.02.2020.
15. The alleged defamatory portion/content referring the deceased in the book written by the proposed accused reads as, “The Bofors saga had also entangled me in a political uproar in India, with my name bandied about in Parliament. Rene Felber, the Swiss foreign minister, leaked a memo to a journalist that had been handed to him by his Indian counterpart, Madhavsinh Solanki. This note recommended to the Swiss government that it close its inquiry into the Bofors kickback. When this news reached India, Solanki admitted in Parliament that he was given a sealed envelope to give to Felber, but said he was unaware it contained a Bofors memo. Solanki further elaborated he was in his seat on the plane when 'a wellrespected Indian lawyer in London' gave him the envelope and requested him to give it to the Swiss foreign minister. There was a presumption in the Indian press that this lawyer was me. Naturally, the Indian parliament raised questions about the propriety of its foreign minister carrying a sealed envelope, without
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 7 of 27 knowing its contents. I knew nothing about it. There was no way I would have got security clearance to board a plane on which I was not travelling, let alone deliver anything to anyone in it. Vir Sanghvi later told me the person who handed the envelope over might have been the Indian high commissioner in the UK, Dr L.M. Singhvi, who was also a senior lawyer. Because of his diplomatic status, he would have had access and authority to meet the minister on the plane. To find my name being baselessly flung around in the Indian parliament and press was stressful and it was the kind of publicity I could do without ”.
16. The alleged defamatory portion/content referring the complainant and the deceased in the newspaper Times of India, edition / copy dated 23.02.2020, which is a published interview given by proposed accused to Times of India, is contained at page no.17 of the said newspaper. The same is marked from point A to A. The alleged defamatory portion/content in the said newspaper reads as,
“Tell us about the hostility from India's own high commissioner to the UK. Kuldip Nayyar (high commissioner, 1990) sacked my firm because I did not accept his request to stop representing the Bachchans, but it did not affect his personal cordial relationship with me. Unfortunately, Dr. L M Singhvi (high commissioner, 199197) acted unfairly towards my firm for a possible personal
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 8 of 27 reason. I was a member of an international arbitration tribunal in a multimillion dollar claim against the Indian government. His son, Abhishek Manu Singhvi, then a very junior counsel, was appearing before us. My coarbitrator was clearly under pressure, and gave a dissenting award. I instead joined the majority award given by the chairman of the tribunal, Lord McKenzie Stuart, against the Indian government. This apparently provoked Dr. Singhvi to recommend blacklisting my firm despite the successful service we had provided over this year”.
17. It is the grievance of the complainant that the above referred contents written/made by the proposed accused in his book and in his interview published by newspaper Times of India are defamatory statements made by the proposed accused with an intention to cause serious harm to the reputation of the complainant; and also to defame the deceased, and the defamatory statements made about the deceased are hurtful to the feelings of the family and relatives of the deceased. The complainant claims to be an 'aggrieved person' by the defamatory statements made by the proposed accused in his book as well as in his interview published by newspaper Times of India pertaining to him personally and also pertaining to the deceased.
18. The offence of defamation under section 499 IPC, for which the complainant is seeking the summoning of proposed accused reads as; CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 9 of 27 S. 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 expected, to defame that person. Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.—No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.
19. According to the definition of offence of defamation, as defined under section 499 IPC the following essential ingredient are required to be fulfilled for making sufficient and justifiable grounds for the summoning of the accused for CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 10 of 27 offence under section 499 and 500 IPC, viz. 19.1 Making or publishing any imputation concerning any person; 19.2 Such imputation must have been made by words either spoken or intended to be read or by signs or by visible representations; 19.3 The said imputations must have been made with the intention to harm or with knowledge or having reason to believe that it will harm the reputation of the person concerned.
20. The offence of defamation, as contained in section 499 IPC, is an offence which encompasses with it ten (10) exceptions. However, at the stage of summoning there is no occasion for the court to consider the imputations made, which are alleged to be defamatory in nature through the prism of any of the exceptions encompassed with the offence. At the stage of consideration on the point of summoning an accused for offence under section 499 IPC, the court has to only consider the averments made in the complaint; and the evidence lead at the stage of presummoning evidence by the complainant and his witnesses as if there is no exception appended to the section. Without considering any of the exceptions appended to section 499 IPC the court has to form an opinion that whether there exists sufficient and justifiable grounds to summon the accused, or not.
21. Section 105 of the Indian Evidence Act, 1872 (hereinafter IEA) deals with 'Burden of proving that case of accused comes within exceptions'. The section states that,
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 11 of 27 “When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code, 1860 or within any special exceptions or proviso contained in any other part of the same code, or in any law defining the offence, is upon him, and the court shall presume the absence of such circumstances.
22. Section 105 of the IEA is mandatory in nature. The ten (10) exceptions encompassed with offence of defamation under section 499 IPC are special exceptions and by virtue of section 105 the court has to presume, at this stage of summoning, absence of any such circumstances which attract any of the such special exception. The onus of proving existence of any such special exception rests upon the accused; and the accused can discharge this onus only at the stage of trial, upon leading of cogent evidences.
23. The Hon'ble Supreme Court in the judgment of K. Sitaram & Another versus CFL Capital Finance Service Limited and Another, reported in (2017) 5 SCC 725 (judgment relied and filed on record by the complainant) in para 22 has held that, “ When a person files a complaint and supports it on oath, rendering himself liable to prosecution and imprisonment if it
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 12 of 27 is false, he is entitled to be believed unless there is some apparent reason for disbelieving him; and he is entitled to have the persons, against whom he complains, brought before the court and tried. The only condition requisite for the issue of process is that the complainant’s deposition must show some sufficient ground for proceeding. Unless the Magistrate is satisfied that there is sufficient ground for proceeding with the complaint or sufficient material to justify the issue of process, he should not pass the order of issue of process. ”
24. Accordingly, the complaint of the complainant and the evidence led by the complainant deserves to be appreciated in the backdrop of Section 105 of the Evidence Act and the above referred judgment; and the court on the basis of material available on record and the evidence led by the complainant and his witnesses has to only consider that whether there are sufficient justifiable grounds for proceeding to issue process qua the proposed accused or not.
25. The proposed accused in his book (EX CW1/2), in Chapter / episode five (5) has narrated that how while defending a client in English Courts relating to a case his name was taken up by the Indian press and the Indian Parliament. He claims that he was presumed by the Indian Press and Parliament to have handed over a sealed envelope to the then Foreign Minister of India, to be handed over to the
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 13 of 27 then Swiss Foreign Minister recommending the Swiss Government to close its inquiry into the Bofors Kickbacks.
26. In relation to this presumption against him by the Indian Press and Parliament, the proposed accused in chapter / episode five (5) of his book, at page 103 and 104 has written that, “Vir Sanghvi later told me the person who handed the envelope over might have been the Indian high commissioner in the UK, Dr L.M. Singhvi, who was also a senior lawyer. Because of his diplomatic status, he would have had access and authority to meet the minister on the plane.”
27. The proposed accused while quoting the information received from Vir Sanghvi in his book has used the words 'might have been'. The use of the words 'might have been' clearly show that the statement itself is speculative one which cannot be referred or relied upon without verification. It is the settled principle of law that anyone who claims that he is making, or had made a claim or a statement in good faith must show that before making the statement he made due inquiry with due care and attention regarding the same and was satisfied about the truth and only thereafter he made the statement. The use of the words, 'might have been' in the alleged defamatory portion / content of the book primafacie suggest that there
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 14 of 27 was no attempt to verify the truth.
28.Furthermore, the complainant has placed on record Ex.CW1/4 which is a letter written by Vir Sanghvi to the complainant bearing his signatures at point 'A', wherein he has stated that, “Apropos our telephonic conversation, I categorically and vehemently deny having any conversation with Mr. Sarosh Zaiwalla regarding your late father L.M. Singhvi handing over an envelope to exminister Madhavsin Solanki aboard a private plane enroute Switzerland. To be specific, passage of the book Honour Bound stating Vir Sanghvi later told me the person who handed the envelope over might have been the Indian high commissioner in the UK, Dr L.M. Singhvi, who was also a senior lawyer. Because of his diplomatic status, he would have had access and authority to meet the minister on the plane, is completely a figment of imagination of the author Sarosh Zaiwalla who has chosen to misquote me for reasons best known to him. I deny making any such statement attributed to me in Sarosh Zaiwalla book Honour Bound.”
29. On the very basis of use of words “might have been” the statements made by the proposed accused in his book regarding the deceased transform into an imputation. These statements also transform into an imputation in the light of Ex.CW1/4. This fulfills the first requirement / essential ingredient for attraction of CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 15 of 27 section 499 IPC; as noted in para 19 hereinabove.
30. EX CW1/2 i.e. the book written by the proposed accused has already been published and is in circulation and it is available for reading. Copy / edition of the same is on record and exhibited as EX CW1/2. This fulfills the second requirement / essential ingredient for attraction of section 499 IPC; as noted in para 19 hereinabove.
31. As far as the third requirement / essential ingredient for attracting section 499 IPC, as noted in para 19 hereinabove is concerned, it is to be inferred that whether the imputation was made by the proposed accused with an intention to harm or with the knowledge or having reason to believe that such imputation will harm the reputation of the person concerned.
32. The proposed accused in chapter / episode five (5) of his book, where reference / imputation to the deceased has been made, has written that due to the presumption of the Indian Press and Parliament, that he (the proposed accused) handed over a sealed envelope to the then Foreign Minister of India to be handed over to the Swiss Foreign Minister recommending to the Swiss government that it close its inquiry into the Bofors kickback, caused him stress and gave him
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 16 of 27 unwanted publicity.
33. The very fact that such a presumption in the Indian Press and Parliament by itself gave stress and unwanted publicity to the proposed accused suggest that the imputation regarding the issue concerned carries the potential to cause harm.
34. At the outset, as the proposed accused published a speculative information given by Vir Sanghvi, as claimed by him, in his book without verification about the truthfulness of the facts, this suggests that the accused made the imputation regarding the deceased with an intention to harm, or with knowledge, or having reason to believe that the same may harm the reputation of the deceased.
35. Furthermore, as Vir Sanghvi in EX CW1/4 has refuted to have made any statement to the proposed accused regarding the deceased, as published by the proposed accused in his book, therefore the imputation made can be inferred to have been made with an intention to harm, or with knowledge, or having reason to believe that the same may harm the reputation of the deceased.
36. Furthermore, the proposed accused in his interview with the newspaper Times of Indian, published in its edition dated 23.02.2020 stated that the deceased acted
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 17 of 27 unfairly towards his firm possibly for personal reason. He also stated that, when he (the proposed accused) joined the majority award in an International Arbitration against the Indian Government, for which the son of the deceased (complainant herein) was appearing, the deceased was apparently provoked to blacklist his firm. This statement of the proposed accused by itself suggests intention to harm the deceased. This fulfills the third requirement / essential ingredient for attraction of section 499 IPC; as noted in para 19 hereinabove.
37. The proposed accused in his interview with the newspaper Times of India, published in its edition dated 23.02.2020 stated that he was a member of an Arbitration Tribunal in a multimillion dollar claim against the Indian Government, in which the complainant, the son of the deceased appeared for the Indian Government before the Arbitration Tribunal. He further stated that his coarbitrator was clearly under pressure, and gave a dissenting award.
38. The proposed accused has unequivocally stated in his interview with the Times of India, published in its edition dated 23.02.2020 that an Arbitrator, in an International Arbitration was under pressure and gave a dissenting award, favoring the complainant’s client, upon the appearance of the complainant as a counsel, who at that time was a very junior counsel.
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 18 of 27 39. The proposed accused has categorically and unequivocally stated that the complainant upon his appearance, despite the fact that he was at the relevant time a very junior counsel was able to put an arbitrator of an international arbitration under pressure compelling to give a dissenting award. This statement of the proposed accused is a clear imputation upon the complainant, who was and is still a practicing lawyer. The imputation against a lawyer that he put an arbitrator under pressure for a dissenting award is a serious one and clearly puts the reputation of such lawyer in the profession at a stake.
40. The proposed accused in his interview with the newspaper Times of India, published in its edition 23.02.2020 has unequivocally expressed that the deceased, the father of the complainant was unfair to him and his firm and that he had blacklisted his firm despite successful service by his firm over the years. Hence, the imputation made qua the complainant of pressurizing an arbitrator by his appearance and obtaining a dissenting award prima facie appears to have been made with an intention to harm the reputation of the complainant, who continues to practice law.
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 19 of 27 41. Hence, with respect to the imputations made by the proposed accused qua the complainant too all the three essential ingredients / requirements of section 499 IPC, as enumerated in para 19 hereinabove stand fulfilled.
42. Before proceeding further at this juncture it is expedient to discuss two aspects, i) the Locus Standi of the complainant to institute the complaint on behalf of the deceased; and ii) the Enquiry under section 202 Cr.P.C.
43. As far as the locus standi of the complainant is concerned, section 199 of the Cr.P.C which provides for ‘Prosecution of Defamation’ requires that the prosecution for defamation shall be launched upon a written complaint by ‘Some Person Aggrieved’. Defamation is a civil wrong as well as an offence. Upon the death of the aggrieved his civil remedy for the civil / personal wrong ceases by virtue of principle of maxim Actio Personalis Moritur Cum Persona, i.e. a personal action dies with the person. However, as far as offence of defamation is concerned regarding the deceased the Explanation 1 appended to section 499 IPC saves the locus for the family and near relatives of the deceased to launch and pursue the criminal action on behalf of the deceased.
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 20 of 27 44. In the case at hand the complainant is the son of the deceased and undisputedly is his family and a near relative being in the nucleus of the family of the deceased. Hence, he is fully competent to launch a prosecution on behalf of the deceased. Moreover, the complainant himself is also an aggrieved in this case in his personal capacity too. The locus of the complainant to launch and prosecute this case on behalf of the deceased also finds strength from the Judgment of Hon’ble Kerela High Court delivered in the case titled as Raju Vs. Chacko reported in 2005 (4) KLT 197.
45. A deceased person himself cannot come to defend his cause and reputation, however, this does not give unfettered liberty to anyone to impute anything upon a deceased which would harm his reputation if he were living. Even if a person dies his reputation remains alive in the eyes of members of general public, his family and near relatives. Reputation of a person is something which others believe about the person. Hence, the testimony of the family members, or the testimony of a member of general public in whose eyes the reputation of the deceased still rests is sufficient to show that whether the imputation made by the accused has hurt the feelings of family members of the deceased or not.
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 21 of 27 46. In the case at hand the complainant himself in his testimony has deposed about the reputation of his deceased father and has also stated that how CW2 confronted him with the allegations made by the proposed accused against the deceased. CW2 in his testimony also has deposed about his opinions and feelings when he read the book written by the proposed accused referring the deceased and when he read the interview of the proposed accused published in the 23.02.202 edition of the Times of India.
47. There is no prescribed scale to measure the reputation of a person, which he enjoys in the eyes and mind of others. No straight jacket formula can be laid down to evaluate the lowering of reputation of a person in eyes or mind of others. The litmus test to ascertain the effect of an imputation made upon the reputation of a person in the eyes and mind of others is to ascertain that whether, or not such other person upon gaining knowledge of the imputation conceives a doubt in his mind regarding the person for whom an imputation is made.
48. In the case at hand CW2 has categorically deposed that after gaining knowledge of the imputations made by the proposed accused he conceived a doubt in his mind regarding the deceased and regarding the complainant despite the fact that he knew the deceased and the complainant since long time. Hence, the
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 22 of 27 imputation by the proposed accused has been hurtful to the feelings of the family of deceased and has also lowered the reputation of the complainant. Accordingly, both the explanations appended to section 499 IPC, i.e. Explanantion 1 and Explanation 4 stand satisfied and duly meted out in this case though the evidence on record and testimonies of CW1 and CW2.
49. As far as section 202 Cr.P.C is concerned, although no specific order for conducting an enquiry under section 202 Cr.P.C was made in this case, however, such enquiry was conducted by the court upon examining of the complainant and his witnesses and upon considering he evidence lead by the complainant.
50. The Hon’ble Supreme Court of India in the judgment of Vijay Dhanuka and Others Versus Najima Mamtaj and Others, reported in (2014) 14 SCC 638 (Judgment relied and filed by the complainant) has held that, “2 (g) Inquiry means every enquiry, other than a trial, conducted under this Code by the Magistrate or Court. It is evident from the aforesaid provision, every enquiry, other than a trial conducted by the Magistrate or the Court is an inquiry. No specific mode or manner of inquiry is provided under section 202 of the Code. In the inquiry envisaged under section 202 of the Code, the witnesses are examined whereas under section 200 of the Code, examination of the
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 23 of 27 complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under section 202 of the Code.”
51.Furthermore the Hon’ble Delhi High Court in the Judgment of Ambica Plastopack Pvt. Ltd & Anr. Versus State and Anr., in CRL.M.C. 2698/2011, Crl.M.A.Nos.9619/2011 & 1468/2013 decided on 01.11.2013 held that, “ xxx xxx xxx 8. There are two kinds of cases which come before the court, one where the offence is sought to be proved from documents and the oral testimony is given before the court to prove the documents by exhibiting the documents and by deposing as to when the documents were executed and by whom. The other kind of cases are where the case does not depend on documentary evidence and depends upon only the oral testimony. These are cases of physical hurt, injuries, threats etc. In order to protect an innocent person being summoned by the Magistrate on the basis of oral testimony of a person and considering that a large number of false complaints were being filed at faroff places just to harass the people, the Parliament had amended Section 202 so that the summoning orders were not issued mechanically by the Magistrates and whenever the accused was of other State an investigation or enquiry into the allegations was mandatorily conducted either by the
CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 24 of 27 Magistrate himself or through police. Say for example, a person files a complaint that on telephone he had been threatened by a person seeking ransom or he had been threatened to be killed and the person who allegedly threatened him was living outside the jurisdiction of the court. Before acting on this oral statement of the victim, it would be incumbent upon the court to make an enquiry about the call details, about the telephone and about telephone number from which the threat was allegedly received and the telephone number of the complainant. The call details for period around the date of incident would show if the calls had been made frequently or it was a solitary call and the Magistrate can also make enquiry about the person in whose name the telephone was standing. This would enable the Magistrate to find out if there was credibility in the statement given by the complainant. The Magistrate can summon the officials of service provider telephone company and make this enquiry himself. Similarly there may be a case where a person alleges that while he was at X place, Y a resident of other State had come there and beaten him or abused him or threatened him or caused injuries to him etc. The person produces his MLC and makes an oral statement. The court in such a case, if the accused is of outside his jurisdictional area, would have to get an enquiry made through police if the accused was living at the address given and if the accused had visited the place where it was alleged that he had beaten or threatened. The Magistrate can also get a fact finding enquiry done from police of that State or police of his own State. However, where the commission of offence is CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 25 of 27 disclosed only from the documents, no further enquiry except scrutinizing the documents proved before the court by testimony of complainant is feasible, I consider that the enquiry envisaged under Section 202 Cr.P.C in such cases is an enquiry by way of recording statement of complainant and careful scrutiny of documents relied upon by the complainant. Say, if a case against the accused is filed under Section 138 of Negotiable Instruments Act and the accused lives in Noida while the complainant lives in Delhi. The Magistrate in such a case has only to consider if prima facie offence was committed or not and if it has jurisdiction based on the documents i.e. whether the cheque was dishonoured, whether the proper demand notice was sent and still payment was not made etc. Similarly there are several statutes where the offence is of technical nature and the commission of offence can be made out from the documents, say the offences under the Companies Act , against the directors of the company for violating the mandatory provisions regarding filing of returns etc. The company may be registered in Delhi but the director may be living in Noida or Gurgoan. In such a case, the commission of offence has to be inferred only from the documents and the enquiry under Section 202 Cr.P.C has to be limited to scrutiny of the documents and recording of statement of the complainant and cannot go beyond that. ”
52. The case at hand is also a summons case and is based upon documents. The relevant documents in original are on record. The complainant himself has stepped in the witness box and in support of his case has also examined CC No.4629/2020 Dr. Abhishek Singhvi v. Sarosh Zaiwalla Page 26 of 27 witnesses. This court has perused the testimonies of the witnesses examined at the stage of presummoning evidence and has also considered the original documentary evidence which is on record. Hence, on the basis of the guidelines laid down by the Hon’ble Superior courts the requirement of an inquiry under section 202 Cr.P.C stands meted out in this case.
53. On the basis of the abovedone discussion this court is of the considered opinion that prima facie all essential requirements of section 499 IPC stand meted out in this case and there exist sufficient grounds for proceeding further. Accordingly, the writer of the book titled as, 'HONOUR BOUND ADVENTURES of an INDIAN LAWYER in the ENGLISH COURTS', namely Sarosh Zaiwalla is hereby summoned as an accused for commission of offence under section 499 IPC for trial.
(SUMEET ANAND) MM07/PHC/Delhi/18.03.2020
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