Criminal Offence of – Defamation

The criminal offence of defamation under Section 499 Indian Penal Code is committed when a person makes a defamatory imputation which, as explained in Mohd. Abdulla Khan v. Prakash K., (2018) 1 SCC 615, is as under:

“To constitute an offence of defamation it requires a person to make some imputation concerning other person;

  • Such imputation must be made either
  • With intention, or
  • Knowledge, or
  • Having a reason to believe

that such an imputation will the reputation of the person against whom the imputation is made.

  • Imputation could be, by
  • Words, either spoken or written, or
  • By making signs, or
  • Visible representations
  • Imputation could be either made or published.

The difference between making of an imputation and publishing the same is:

If ‘X’ tells ‘Y’ that ‘Y’ is a criminal–‘X’ makes an imputation. If ‘X’ tells ‘Z’ that ‘Y’ is a criminal—‘X’ publishes the imputation.

The essence of publication in the context of Section 499 is the communication of defamatory imputation to persons other than the persons against whom the imputation is made. A publication, on the other hand, is made when the imputation is communicated to persons other than the persons about whom the defamatory imputation is conveyed. A person, who makes the defamatory imputation, could also publish the imputation and thus could be the maker and the publisher of a defamatory imputation. On the other hand, a person may be liable though he may not have made the statement but he publishes it. Google India Private Ltd. v. Visaka Industries, (2020) 4 SCC 162.

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Penalty for Frauds – By an Officer of the Company

Under Section 241(2) of the Companies Act, 2013, the Central Government, if it is of the opinion that the affairs of the Company are being conducted in a manner prejudicial to public interest, may apply itself to the Tribunal for orders under the said Chapter, which is headed “prevention of Oppression and Mismanagement”. Apart from the vast powers that are given to the Tribunal under Section 242, powers under Sections 337 and 339 are also given in aid of this power, which will apply mutatis mutandis.         Section 337 of the Companies Act refers to penalty for frauds by an officer of the Company in which mismanagement has taken place. Likewise, Section 339 refers to any business of the company which has been carried on with intent to defraud creditors of that company. Obviously, the persons referred to in Section 339(1) as persons who are other than the parties “to the carrying on of the business in the manner aforesaid” which again refers to the business of the company which is being mismanaged and not to the business of another company or other persons. Usha Ananthasubramanian v. Union of India, (2020) 4 SCC 122.

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Management Shall Not Dismiss Any Teacher – Without Approval By The Board

Section 21 of U.P. Secondary Education Service Selection Board Act, 1982 provides that the management shall not, except with the prior approval of the Board, dismiss any teacher or remove him from service, or serve on him any notice of removal from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period whether temporarily or permanently and any such thing done without such prior approval shall be void.

Section 21 of the U.P. Secondary Education Service Selection Board Act, 1982, has also been similarly interpreted by the Court in Hem Lata Agrawal v. District Inspector of Schools, 2003 (2) AWC 939. It was held as under: “The question whether the reversion of a teacher, who was appointed on temporary adhoc basis as Principal under Section 18 of the Act would amount to reduction in rank so as to require approval of the Board need not be considered here as whether or not it is a reduction in rank, it is clear that it amounts to reduction of emoluments. The petitioner is entitled to the salary for the post of Principal and reverting her, as a Lecturer would undoubtedly affect the emoluments to which she is entitled. The language of Section 21 of the Act is wide enough to cover within its scope the order impugned in this writ petition.”…. Kapil Deo Prasad V. Joint Director of Education 7th Region Gorakhpur, Writ – A No. – 442 of 2020, decided on 05.03.2020

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Wife Living In Adultery – Not Entitled to Maintenance

 A wife is not entitled to any Maintenance Allowance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circumstances contemplated by sub-section (4) of section 125, Cr. P.C. presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Taking the three circumstances individually, it will be noticed that the first circumstance on account of which a wife is not entitled to claim Maintenance Allowance from her husband is that she is living in adultery. Now, adultery is the sexual intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim Maintenance Allowance under Section 125 of the Code of Criminal Procedure. Ashwani K. Lal v. Deepa Kumari Chauhan, Cr.MMO No. 358 of 2016, decided on October 31, 2019

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Making a Daughter in Law Do Domestic Work – Is Not Unusual

No family is totally devoid of clashes among members constituting it. It is common for elders to scold and sometimes abuse youngsters. Making a daughter in law to do the house hold/domestic work is also not something unusual.

In Narendra v. K. Meena, 2016 (5) KHC 180, it was held as under: “In a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income. The persistent effort of the respondent wife to constrain the appellant to be separated from the family would be torturous for the husband and in our opinion, the trial court was right when it came to be conclusion that this constitutes an act of ‘cruelty’.” Ranjith P.C. V. Asha Nair P., Mat. Appl. No. 137 of 2014, decided on May 20, 2020

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Recruitment, Advertisement, Selection and Appointment

“Recruitment”, “Advertisement”, “Selection” and “Appointment” are different concepts under the service jurisprudence. “Recruitment” is the process of generating a pool of capable people to apply for employment in organization. Selection forms integral part of recruitment process, wherein from amongst eligible candidates, choice is made of person or persons capable to do the job as per the requirement. The process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. “Appointment” is made, after selection process is over, issuance of letter in favour of selected candidates, is an offer to selected candidate to accept the office or position to which he has been selected. On acceptance of the terms and conditions of appointment, the selected candidates on joining has to be accepted as appointed. Ravi Raj v. State of U.P., Writ – A No. – 26584 of 2011, decided on February 7, 2020

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Power of Executive Council – To Grant Priveleges of Affiliation

The consequence of amendment made in Section 37 of the U.P. State Universities Act of 1973 is essentially three fold. Firstly, the power to grant affiliation now stands vested in the Executive Council of the University concerned and the requirement of prior approval of Chancellor/State Government stood dispensed with. Secondly, the privilege of affiliation can now be extended to a college only when it fulfills conditions of affiliation, as may be prescribed. Thirdly, the proviso which permitted grant of temporary affiliation even if conditions of affiliation were not fulfilled entirely but only substantially stood deleted. No further amendment is made in the U.P. State Universities Act after the year 2014. The Executive Council is thus empowered in the Act now to grant privileges of affiliation only if the college fulfills all conditions of affiliation as are specified in the Statutes of the University. The object for which temporary affiliation was made permissible i.e. to secure fulfillment of all conditions of affiliation while granting affiliation even if conditions of affiliation are only substantially fulfilled and not in its entirety ceased to exist. Yashraj College of Professional Studies v. State of U.P. , Writ – C No. – 31170 of 2019

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Concept of – Human Error

The concept of human error or inadvertent error has been explained in brief by Hon’ble Supreme Court in Price Water, Coopers (P) Ltd. v. CIT (2012) 11 SCC 316, as under:— “The contents of the Tax Audit Report suggest that there is no question of the assessee concealing its income. There is also no question of the assessee furnishing any inaccurate particulars. It appears that all that has happened in the present case is that through a bona fide and inadvertent error, the assessee while submitting its return, failed to add the provision for gratuity to its total income. This can only be described as a human error which we are all prone to make. The calibre and expertise of the assessee has little or nothing to do with the inadvertent error. That the assessee should have been careful cannot be doubted, but the absence of due care, in a case such as the present, does not mean that the assessee is guilty of either furnishing inaccurate particulars or attempting to conceal its income.” Anand Kumar Tripathi v. State of U.P., Writ – A No. – 162 of 2020, decided on February 14, 2020

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Candidate in the Selection Process – Only Accepts the Prescribed Procedure and Not the Illegality

Dr. (Major) Meeta Sahai v. State of Bihar; 2019 SCC OnLine SC 1632, Hon’ble Supreme Court has held as under: “However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.” Mohan Lal Yaduwanshi v. State of U.P, Service Bench No. – 18370 of 2019, decided on January 13, 2020

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Recruitment – No Discrimination Can Be Permitted

In Shankarsan Dash v. Union of India, (1991) 3 SCC 47, a Constitution Bench of the Hon’ble Supreme Court held that a candidate seeking appointment to a civil post cannot be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list. It was held as under: “It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.” Mohd. Rashid v. Local Bodies, (2020) 2 SCC 582

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