SHAUKAT ALI Vs. ABDUL GAFOOR

JUDGEMENT

(1.) These three petitions challenge the same order, namely order dated 1.5.2001, passed by the Additional Sessions Judge, Baran, whereby the learned Judge has quashed and set aside the cognizance order passed by the Civil Judge (Junior Division) and Judicial Magistrate Mangrol, District Baran. Moreover, these three petitions raise the same legal issue namely whether an excommunication from the community amounts to defamation under Sections 499 IPC or not? Since these petitions arise out of the same impugned order, and raise the same legal issue, they are being decided together by this common judgment. The facts are being taken from the case of Abdul Gafoor vs. Mohammad Ibrahim, S.B. Criminal Revision Petition No. 520/2001. Briefly, the facts of the case are that Abdul Gafoor filed a complaint before the Civil Judge (Junior Division) and Judicial Magistrate Mangrol District Baran. In the said complaint, he claimed that he is a respectable person to Mangrol. He further claimed that he is a member of New Hathai Panchayat the Chairman of the Panchayat is Noor Mohammad. According to him, the respondents are members of Intzamiya Committee General Panchayat Mominan, Mangrol. On 27.4.1998, they passed a resolution, namely Resolution No. 61, wherein the members excommunicated seven persons from the community, including him, on the ground that they had gone and participated in a "Nikha" organized by Jan Mohammad, who was already excommunicated by the Committee. According to Abdul Gafoor, his excommunication from the community has lowered his prestige within the community. Thus, defamation has been committed against him. The learned trial Court recorded the statements of Abdul Gafoor under Section 200 Cr.P.C., and that of his witnesses under Section 202 Cr.P.C. Subsequently, vide order dated 6.2.1999, the learned Magistrate took cognizance of offence under Section 500 IPC. However, as the respondents were aggrieved by the cognizance order, they challenged the same before the learned Judge. Vide order dated 1.5.2001, the learned Judge set aside the cognizance order. Hence, these petitions filed by the persons who have been excommunicated by the respondents.

(2.) Mr. Kapil Gupta, the learned counsel for the petitioners, has contended that excommunication from the community ousts the person from the community. The excommunication boycotts such a person from all social occasions. According to the learned counsel such an act harms the reputation of the person. Thus, the act of excommunication falls within the definition of word "defamation" given under Section 499 IPC. Secondly, the learned Judge has merely relied upon the cases Khalil and Ors. vs. State of Rajasthan and Anr., 1994 19 RCrC 290, in order to conclude that the learned Magistrate was unjustified in taking the cognizance for offence under Section 500 IPC. However, according to the learned counsel, the case of Khalil and Ors. suffers from sub-silentio as this Court while holding that the excommunication does not tantamount to defamation, has not given any reason for reaching such a conclusion. In fact, this Court has neither discussed the ambit and scope of Section 499 IPC, nor discussed whether excommunication would fall within the well-known exception prescribed under Section 499 IPC. Since the judgment is subsilentio, it is not binding on the courts. Thirdly, if the Community associations were permitted to excommunicate a person from the membership of the community, it would be armed with unbridled powers. Considering the large number of commands, and "Fathwas" which are being issued by community associations - be they Caste Panchayats or associations like the present one, their powers should be restrained by the Court.

(3.) The learned Public Prosecutor, in all fairness, and in view of this Court rightly so, has not challenged the position taken by the learned counsel for the petitioner.