Vishveshwar Kumar vs State Of U.P. And Another

Excerpt:, I am of the view that in the present case as well, it would be appropriate to have a full-fledged trial so as to gather the intention of the accused, whether it was there to defame the opposite party no. 2 in order to lower his image in the estimation of the public and with that motive the news item was printed or whether it was simply a statement of fact. This Court cannot prejudge this issue without the full trial.

Allahabad High Court

Vishveshwar Kumar vs State Of U.P. And Another on 2 September, 2019

Bench: Dinesh Kumar Singh-I

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment Reserved on : 08.08.2019
 
Judgment Delivered on :  02.09.2019
 

 
Court No. - 65
 

 
Case :- APPLICATION U/S 482 No. - 38158 of 2012
 

 
Applicant :- Vishveshwar Kumar
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Imran Ullah
 
Counsel for Opposite Party :- Govt.Advocate,N.L.Pandey,Pankaj Srivastava
 

 
Hon'ble Dinesh Kumar Singh-I,J.

Heard learned counsel for the applicant Shri Imran Ullah and in opposition, learned counsel for opposite party no. 2 Shri N.L. Pandey, learned A.G.A. for the State Shri G.P. Singh and perused the record.

2. This application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Code’) has been moved on behalf of the applicant with a prayer to quash the entire proceedings in Complaint Case No. 583 of 2012 (Natthu Lal Yadav v. Pradhan Sampadak and others), under Sections 500, 501 of the Indian Penal Code, 1860 (hereinafter referred to as ‘I.P.C.’), Police Station – Kotwali, District – Varanasi, pending in the court of A.C.J.M.-II, Varanasi.

3. In order to appreciate the arguments advanced by learned counsel for the applicant and the contentions made in the affidavit filed on his behalf, it would be pertinent to refer here in brief, the complainant’s case as narrated in the complaint and the evidence which has been adduced in support thereof. According to the complaint, one Sessions Trial No. 642 of 1999 was initiated against the opposite party no. 2/complainant under Sections 302, 120B of I.P.C., Police Station – Chowk, District – Varanasi pertaining to Crime No. 10 of 1999, in which he was acquitted vide judgment and order dated 05.08.2002 by the Additional District Judge, Fast Track Court No. 5. The Advisory Committee of the National Security Agency (N.S.A.) had communicated by FAX to the opposite party no. 2 that his detention was found to be against law and a direction was issued for his immediate release. Earlier, the District Magistrate had cancelled the license of S.B.B.L. gun of the opposite party no. 2, but subsequently, a report was sent by Inspector, Kotwali pertaining to Crime No. 10 of 1999 in respect to the cancellation of gun license of the opposite party no. 2 and after consideration of the same, the District Magistrate vide order dated 25.08.1999, had cancelled his gun license, against which an appeal was preferred by him before the Commissioner, Varanasi under Section 19 of the Arms Act, 1959 and vide order dated 26.02.2001, the order of District Magistrate was confirmed, against which the opposite party no. 2 had preferred a writ petition No. 20298 of 2010 before the High Court, in which the orders of the District Magistrate and the Commissioner were set aside and the said gun was released in favour of opposite party no. 2 and his armed license gun was renewed up to 2009 and was valid till then. The accused-applicant along with two other co-accused were fully aware of these facts, but in order to assail his dignity, at the instance of co-accused (Sanjay Singh, Inspector, Police Station – Kotwali, District – Varanasi), on 13.06.2007, untrue facts were published in the newspapers, which were derogatory to the opposite party no. 2 and considerably dented his esteem in the eyes of public and people started looking upon him in adverse light and this also led to the breakage of betrothal (‘sagaai’) of the complainant’s son and people started avoiding to meet him so much so that it became very difficult for him to move around and live peacefully a dignified life. This caused immense physical, mental and financial loss to him.

4. The said complaint was registered as Complaint Case No. 2025 of 2007 against the applicant and two other co-accused and on 25.06.2007, the statement of the opposite party no. 2 was recorded under Section 200 of the Code, in which he narrated the same version which has been stated above in the complaint, further clarifying that all the three accused, which included the applicant, in conspiracy with each other, published news item in ‘Hindustan’ and ‘Amar Ujala’ daily newspapers on 13.06.2007. The local editors of the said two daily newspapers were made accused along with the S.I. Sanjay Singh who were stated to have deliberately published the said news item, which led to the defamation of the opposite party no. 2 and therefore, it was mentioned that a sum of Rs. 10 lacs should be directed to be paid by the accused to compensate the opposite party no. 2.

5. In support of the complaint, one Manoj Kumar Srivastava was examined by the opposite party no. 2 as P.W.1 under Section 202 of the Code, who has stated that he knew the opposite party no. 2 and had read news item in ‘Amar Ujala’, Varanasi edition dated 13.06.2007, carrying news item pertaining to the opposite party no. 2, after reading which, he received a big jolt that the opposite party no. 2 was a man with criminal antecedents, having case under Section 302 of I.P.C. and he was a history-sheeter. His other friends were having the same kind feeling towards him after having read the news and started avoiding to meet him. The other witness, namely, Kashi Seth was also examined by the opposite party no. 2 as P.W.2. He also has stated that he read the Varanasi Edition of the ‘Amar Ujala’ daily newspaper dated 13.06.2007 and came to know about the opposite party no. 2 being a history-sheeter and this led him not to have confidence in the opposite party no. 2 as his reputation had gone down badly. The marriage of opposite party no. 2’s son which was likely to take place also had broken because of the said news item having been widely read by the general public.

6. Based on the said evidence, the trial court passed the order dated 10.01.2008, wherein it was recorded that the news item which was published by the accused-applicant was nothing but publishing correct news and therefore, the same would not fall in the category of any offence. The accused being an editor of the ‘Amar Ujala’ daily newspaper, had published the said item only thinking that the said news item was correct and it would not appear to him that if the same was published by him, it would bring down the esteem of the opposite party no. 2 in the eyes of public. As regards the third accused Sanjay Singh, Inspector, Kotwali, the action taken by him fell within the domain of his official duty in respect of cancellation of arm’s license of opposite party no. 2. Merely on account of opposite party no. 2 being acquitted, it could not be said that accused no. 3 had proceeded to take action for cancellation of arms license in order to damage his reputation. Accordingly, the trial court dismissed the complaint under Section 203 of the Code. Against the said order, a revision (Criminal Revision No. 09 of 2008) was preferred in which the Sessions Judge, Varanasi vide judgment and order dated 29.02.2008, set aside the order of the learned Magistrate mentioned above and remanded the matter back to the trial court to decide the matter afresh after hearing the counsel for the complainant and considering the evidence on record. While passing the said order, the learned revisional court observed that although the complainant had been acquitted in the cases pending against him, getting benefit of doubt, but in the publication dated 13.06.2007, it was written ^^fgLVªh’khVj Hkh ysdj ?kwe jgsa ykblsalh vlygk^^. The name of the opposite party no. 2 was also mentioned therein, therefore, it was not appropriate for the newspaper to publish such news without proper enquiry. The opposite party no. 2 had been acquitted by the Additional District Judge on 05.08.2002 and by the order of High Court in Writ Petition No. 20298 of 2001, the petition of opposite party no. 2 was allowed and his arm’s license was restored in the year 2003. Thus, after 2003 till 2007, there was nothing against the opposite party no. 2 which could be the basis for publishing such news item that he was a history-sheeter detenue of “RASUKA” (Rashtriya Suraksha Kanoon). Further, it is mentioned in the said judgment that the publication of the fact mentioned in the complaint could not be said to be bona fide and the conclusion drawn by the learned trial court that true facts were published could not be said to be in accordance with evidence on record and accordingly, the revision was allowed.

7. Thereafter, the trial court passed the impugned order dated 09.07.2009, in which it has been recorded that the revisional court, while allowing the revision on 29.02.2008, has directed it to pass fresh order on the basis of evidence, after hearing the parties again. The revisional court in its order while drawing the conclusion, has mentioned that the publication made in the newspapers did not appear to have been published bona fidely and hence, according to the conclusion drawn by the revisional court, the accused deserves to be summoned to face trial under Section 500 of I.P.C. and accordingly, summons were issued against the applicant along with other two co-accused.

8. The main thrust of the argument of the learned counsel for the applicant was that the impugned order was totally illegal because the same was not passed on the appreciation of the evidence on record by the learned Magistrate, rather it has been passed in accordance with the wishes/opinion formed by the revisional court, which is wrong. The learned Magistrate was directed to consider the evidence afresh and after hearing the parties, he should have passed fresh order, expressing his own opinion as to whether prima facie case under the relevant sections were made out or not and it should not have passed the order merely because the revisional court had expressed opinion that the said offence was found to be made out.

9. Attention of this Court was also drawn to the order of the District Magistrate, Varanasi dated 15.10.2007 at page no. 85 of the paper book, in which as many as four criminal cases are shown to have been recorded against opposite party no. 2 and it was also mentioned therein that on the basis of police report, showing those cases to have been initiated against opposite party no. 2, was held to be the basis for cancelling the arm’s license of the opposite party no. 2. He was issued notice to show cause on 19.07.2007. In response to the said notice, the opposite party no. 2 had filed objection on 17.08.2007, stating therein that the Crime No. 10 of 1999 was registered against him because a widow lady had received a bullet injury and concerning that, proceedings were also initiated against him under N.S.A. His arm’s license was also cancelled vide order dated 25.08.1999, against which he had preferred an appeal before the Commissioner, Varanasi Division, which too was dismissed and thereafter, a writ petition No. 20298 of 2001 was preferred by the opposite party no. 2 and in the said petition, vide order dated 14.05.2003, the orders of District Magistrate and the Commissioner were set aside and the arm’s license of the opposite party no. 2 was directed to be restored and on that basis, the show cause notice was taken back with immediate effect and the gun was directed to be restored to opposite party no. 2. It was argued after having shown the said order, that the said order was passed on 15.10.2007, while the publication of news item was made on 13.06.2007, which was stated to be derogatory and defamatory against the opposite party no. 2. Therefore, it is apparent that the accused-applicant did not have any knowledge that any such order was passed by the District Magistrate, restoring the arm’s license to the opposite party no. 2 after having found that the criminal case shown pending against him had resulted in acquittal and the High Court had passed a direction in his favour to restore the license and the weapon as well.

10. The sole basis of making publication of the said news item was that there was report of the co-accused Sanjay Singh to the effect that the above-mentioned four cases were pending against him and hence, he had made the said publication simply on the basis of the police report. There was no intention while publishing the said news item to defame the opposite party no. 2, rather it was simply a news item, which was statement of fact, basis of which was police report, which later on came to be set aside by the order of District Magistrate dated 15.10.2007, hence, he cannot be held liable for having caused offence under Sections 500 and 501 of I.P.C.

11. On the other hand, learned counsel for the opposite party no. 2 vehemently opposed the quashing of the proceedings against the applicant because according to him, it was very much in the knowledge of the accused-applicant that those criminal cases, which are cited above, had already been closed and the accused-applicant had been acquitted and the license of the gun was also restored to the opposite party no. 2 and yet, knowing full well, the said news item was published in the said papers with a view to maligning the image of the opposite party no. 2, hence, offence under Sections 500 and 501 of I.P.C. were made out on the basis of evidence which has been recorded by the trial court.

12. Reliance has been placed by learned counsel for opposite party no. 2 on the judgment of Hon’ble Apex Court in the case of K. Sitaram and Another v. CFL Capital Financial Service Limited and Another1. In the above-mentioned case, it has been held by the Hon’ble Apex Court that when a person files a complaint and supports it on oath, rendering himself liable to prosecution and embezzlement, if it is false, he is entitled to be believed unless there is some apparent reason for disbelieving him; and he is entitled to have the person, 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 sufficient ground for proceeding.

13. From the side of the applicant, in paragraph no. 32 of the affidavit, it is mentioned that a perusal of the order dated 15.10.2007 passed by the District Magistrate would itself demonstrate that the D.M. was not in the knowledge of earlier proceedings and as such if at all he had given any statement against opposite party no. 2, that was on the basis of criminal proceedings and relying on the police report. However, the reporting of the publishing was done only on the basis of the statement given by the then-District Magistrate and after doing preliminary enquiry by the reporter concerned, whereby he was shown the papers regarding criminal prosecution as well as the reports given by the police station concerned to the District Magistrate and as such, it cannot be said that the said reporting was done with laxity and without proper investigation, with an intention to defame any person. The petitioner/applicant, at the time of the said reporting, was Resident Editor of Hindustan Times Media Ltd. The said reporting was not done by him. There was no intention nor any personal enmity with the complainant to publish false report against him, rather it was a plain and simple reporting of the fact as narrated by the then District Magistrate, Varanasi and there was no ulterior motive against the complainant to defame him or tarnish his image. The trial court has ignored the settled principle of law that in order to constitute abetment, the abettor must be shown to have intention as well knowledge to have aided in the commission of the offence.

14. In the instant case, the applicant cannot be said to be an abettor as there was no intention or knowledge to commit the offence. There was no prima facie case made out against the applicant. There is not an iota of single specific allegation against the applicant in relation to the publication of the said news item and yet he has been summoned. Further, it was mentioned that under Section 7 of the Press and Regulation of Books Act, 1867, it is only the office of the “editor” as defined under Section 1(1) of the Act who can be held responsible for the publication and no other person. The said Act has been reproduced in the affidavit. It was necessary that the editor should have been directly responsible for publishing any news item.

15. Reliance has also been placed upon the judgment of Hon’ble Apex Court in the case of S.K. Alagh v. State of Uttar Pradesh2, in which it is held that there is no concept of vicarious liability under criminal law. The trial court has miserably failed to appreciate the evidence on record and has taken cognizance erroneously, which needs to be set aside.

16. From the side of opposite party no. 2, counter affidavit has been filed, in which all the submissions made in the affidavit have been rebutted and it has been asserted that there was sufficient evidence on record for the trial court to summon the accused under the aforesaid sections.

17. In the rejoinder affidavit filed from the side of the applicant, the same facts have been reiterated, which have been mentioned in the affidavit and nothing new has been stated.

18. The facts in the case are very much clear, as has been mentioned above. It is a fact that the opposite party no. 2 was an accused under Section 302 of I.P.C., but he had been acquitted for the same by the trial court way back in the year 2002 and the gun license was issued in favour of opposite party no. 2, which was cancelled by the District Magistrate and thereafter, the said decision was upheld by the Commissioner. Both the orders were set aside by the High Court in Writ Petition No. 20298 of 2001 vide order dated 14.05.2003 and the said license was restored to the opposite party no. 2, while the news item in question has been published in 2007. It is apparent that the said news item appears to have been printed in newspapers without taking proper care and making proper enquiry and the possibility cannot be ruled out that the same could have been published in order to bring down the image of the opposite party no. 2, as has been stated in the complaint and supported by the two witnesses named above. It has been argued by the learned counsel for the applicant that the applicant had no intention to defame opposite party no. 2 and that he had simply printed the news item on the basis of his information which he had received from the District Magistrate and also on the basis of police report, is something which needs to be decided by the trial court after having appreciated the evidence on record of both the sides and after having appreciated in the light of cross-examination made as to whether the evidence to be adduced by the parties proves the offence as has been committed by the accused-applicant or not. In case the trial court comes to the conclusion that there was no sufficient evidence on record to hold the accused guilty of having published the said news item deliberately in order to lower his image in the estimation of public, then the accused may get acquittal from the trial court, but at this stage, prima facie there is evidence against the applicant which discloses commission of offence under Sections 500 and 501 of I.P.C.

19. Sections 500 and 501 of I.P.C. are reproduced herein below :-

500. Punishment for defamation.–Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

501. Printing or engraving matter known to be defamatory.–Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

20. It is apparent from the above definition of offence under Section 501 of I.P.C. that if someone prints or engraves any matter knowing that such matter is defamatory of a person, he shall be punished with two years’ simple imprisonment or with fine or with both.

21. In the present case, there is certainly a news item printed, which is found by the trial court to be defamatory against the opposite party no. 2, as two witnesses have stated that when they read the said piece of evidence, they started viewing the opposite party no. 2 in poor light, considering that he was a criminal and tried to stay away from him and the marriage of his son had also broken on that account. Therefore, the fact as to whether the said news item was printed in the said newspapers knowingly that the same would tarnish the image of the opposite party no. 2 or not, is a matter of evidence and a full-fledged trial is required to be held for the same. Therefore, at the initial stage, the proceedings against the applicant cannot be nibbed in the bud and reliance may be placed by me upon the judgment of Hon’ble Apex Court in the case of Md. Abdullah Khan v. Prakash K.3, wherein it was held that it must be established that matter printed and offered for sale is defamatory within the meaning of expression under Section of 499 of I.P.C. If so proved, the next step would be to examine the question whether the accused-respondent committed the acts which constitute the offence of which he is charged, with the requisite intention or knowledge, etc. to make his act culpable. The answer to question depends upon facts. If the respondent is the person who either made or published the defamatory imputation, he would be liable for punishment under Section 500 of I.P.C. and if he is the person who “printed” the matter, then within the meaning of expression under Section 501 of I.P.C. Whether there is sufficient evidence to establish the guilt of the respondent for the said offence, is a matter that can be examined only after recording the evidence at the time of the trial. In this case, the Hon’ble Apex Court had held that the High Court did not choose to give any reason, whatsoever, for quashing the complaint, except concluding that the prosecution of accused would lead to miscarriage of justice, which was held to be wrong and it was considered proper that the trial ought to have been held.

23. Adopting the above principle of law in the present case, I am of the view that in the present case as well, it would be appropriate to have a full-fledged trial so as to gather the intention of the accused, whether it was there to defame the opposite party no. 2 in order to lower his image in the estimation of the public and with that motive the news item was printed or whether it was simply a statement of fact. This Court cannot prejudge this issue without the full trial.

23. In view of the aforesaid, the prayer for quashing the entire proceedings in the aforesaid case is refused and resultantly, the instantly application stands rejected.

Order Date :- September 02, 2019 I.Batabyal [Dinesh Kumar Singh-I,J.]

defamation can be filed by person aggrieved not only by person defamed

Excerpt: The decision on the question raised before us turns upon the construction that may be put on the expression “some person aggrieved” in Section 198 Cri P. C. It cannot be laid down as an inflexible rule that the expression “some person aggrieved” will only be limited to the person actually defamed or affected. The section does not say that complaint can only be made by the person defamed. What it requires is that the complaint must be made by ‘some person aggrieved’. In our opinion the expression “some person aggrieved” was not intended to be restricted to the person actually defamed. As was held in Daem Sardar v. Batu Dhali 3 Cal LJ 38, it must be determined in each case according to its own circumstances whether the complainant could be said to be in a legal sense it person ‘aggrieved’ within the meaning of Section 198, Cri. P. C. In that case Mukherjee, J. as he then was, pointed out the distinction between the phraseology of Sections 198 and 199 in this respect in these words

 

The words used are ‘person aggrieved” and not “person defamed”. Moreover, the legislature had used the words “by some person aggrieved” and not “by the person aggrieved”. It appears to me, therefore, that so far as an offence’ of defamation is concerned the complaint may be made not only by the persons defamed but by sorne person aggrieved by such defamation.

Mr. Ghosh refers to the decision in Sajjad Hossain v. Askari Mirza , in support of his

 

Calcutta High Court

Mrs. Pat Sharpe vs Dwijendra Nath Bose on 12 July, 1963

Equivalent citations: 1964 CriLJ 367Author: S NiyogiBench: S Niyogi, R Dutt

ORDER S.K. Niyogi, J.

1. The appellant Mrs. Pat Sharpe is a journalist of some repute and is in the journalistic line for-about quarter of a century. She was a columnist-and made regular contribution for about a year-to a weekly journal published from Bombav, bearing the name “Women’s Own Weekly”. She enjoyed a special status there and in fact a whole age was exclusively reserved in that journal for .her contributions and was styled as “Pat’s Page”. The page devoted her writings was sub-divided into five items, namely, ‘Epigram for the week’, “Candid comments’, ‘Laugh’, ‘Beauty scrap book’ and ‘Cookery nook’. The offending article bearing the heading ‘Bengali’ was published in the ‘Pat’s Page’ of the journal on the 13th of January, 1962, tinder the item ‘Candid comments’. The article contained a scurrilous attack on the Bengalis and the city of Calcutta, The portion of the article which has been conceded by Mr. Pankoj Kumai Ghosh, learned Advocate for the appellant, to be if highly defamatory character, is as follows:

Their proud ‘assertion’ is, I think, based on the fact that Bengal produced India’s only world-poet Tagore. (The only other Bengali ‘hero’ is .Netaji Subhas Chandra Bose, the traitor who was -a. Japanese quisling, but” who nevertheless is honoured annually on the anniversary of his death, as a martyr).

2. The meaning of the word “traitor” as given in the Oxford Dictionary is ‘one who violates his allegiance or acts disloyally (to countryking….)’. The word ‘quisling’ was coined at the time of the last World War No. II and the meaning of the word has been given in the above dictionary as ‘person co-operating with an enemy who has occupied his country’. Quisling was the ‘name of a renegade Norwegian Army Officer who actively co-operated with the invading German -army. The name of Subhas Chandra Bose is held an high esteem and reverence in this part of the -country and renowned all over India as a valiant rghter for the freedom of his country and as the founder of ‘Indian National Army’. To call such a noble son of India as a ‘traitor’ and a ‘quisling’, is the height of impudence and grossly abusive -of the great name.

3. The respondent Dwijendra Nath Bose is the son of the eldest brother of Subhas Chandra Bose. He at first brought an action against N. J. “Hamilton who was at the relevant time the editor, .publisher and printer of ‘Women’s Own Weekly’, Under Section 500 of the Indian Penal Code and process was issued against him by the Chief Presidency Magistrate, Calcutta, on the 7th of February, -1962 under the said section. Mr. Hamilton appeared and pleaded guilty. He expressed his -sincere regret for the publication and was convicted under the section and fined Rs. 200/-.

4. The petition of complaint was filed against Mrs. Pat Sharpe by the respondent Dwijendra Nath Bose on 27-2-62. He stated in his petition that the accused intended by writing the article to defame and harm the reputation of Netaji Subhas Chandra Bose and the publication of the “said malicious and wanton imputation has caused indignation, uneasiness and pain not only amongst Netaji Subhas Chandra Bose’s relations, friends and admirers but also amongst the citizens of Calcutta.”

5. At the time of her examination Under Section 34a, Cri. P. C. the appellant filed a lengthy “written defence. The substance of her defence was that she neither wrote, nor published the article “Bengali’ in the said issue of the journal ‘Women’s Own Weekly’. In course of her journalistic work she sometimes received writings in manuscript from the members of the public on various subjects to be included in her articles contributed to the ‘Women’s Own Weekly’. Some of these communications were signed and some bore no signatures. She. alleged that the portion of the article ‘Bengali’, which referred to Netaji Subbas Chandra Bose was received by her from some anonymous correspondent. She further stated, “It was my piactice to have all handwritten materials typed out for me and the manuscript of the article ‘Bengali’ which has been produced, is a typed copy of the handwritten article which I had received plus a letter on bad driving which had been partly taken from a Calcutta newspaper”. She stated that it was her intention to work up this manuscript for the article of her own to be entitled ‘Are you ciyic minded’, and in so doing she would haye certainly excluded the reference to Netaji Subhas Chandra Bose.

6. It appears from the evidence that Mrs. Pat Sharpe fell seriously ill in the month of December 1961 with an attack of cerebral abscess and menin-gities and was removed while unconscious to the Woodland’s Nursing Home on 10-12-61. She remained unconscious till 14-12-61. During the period of her illness she was under the treatment of Dr. R. E. Solberg. She was removed to her residence on 28-12-61 and was advised to remain in bed. She remained in bed till the middle of January 1962. Her further defence was that during her period of illness and absence from home, her husband, Mr. K. Sharpe, on receipt of urgent communication from Mrs. D’Suza, the editorial assistant of the above journal, for more materials for publication in the ‘Women’s Own Weekly’, went through the desk where she kept her manuscripts and through mistake took out four manuscripts, including the article ‘Bengali’, from a wrong file and despatched the same to the office of the journal at Bombay. It was stated that these articles were not meant for publication.

7. Certain questions of law relating to the maintainability of the application filed by the respondent were also raised before the learned Chief Presidency Magistrate, Those points of law were also raised here and we will deal with the same in the proper place. The learned Chief Presidency Magistrate in a well written judgment overruled the defence contention and held that the charge Under Section 500, IPC had been brought home against the accused.

8. We first of all, deal with the question whether on evidence it can be held that Mrs. Pat Sharpe was the maker of the libellous statements concerning Mr. Subhas Chandra Bose contained in the article ‘Bengali’. Even if it be true, as has been urged on the appellant’s side, that she only typed out from the written materials received by her from person or persons, who remained anonymous, and only gave shape to the article, she would still be held to be the maker of the article. The further fact, as appears from the original document sent to the Bombay Office of the Weekly, that she made corrections and insertions by her own1 hand at places of the article, would also go to show her approbation of what was written there. The learned Magistrate has, however, on an elaborated discussion of the evidence, come to the conclusion that Mrs. Fat Sharpe was alone the real author of the article. On a careful scrutiny of the evidence we are inclined to uphold the finding of the learned Magistrate in this respect.

9-21. (After discussion of evidence “His Lordship concluded:) We, therefore, see absolutely no reason to disagree with the finding of the learned Magistrate that the appellant is the “maker” of the offending article,

22. The next branch of argument of Mr. Ghosh has been that even if she may be the maker of the article ‘Bengali’, it was sent by her husband: without her knowledge and consent on the 15th of December. There is no sufficient evidence to establish that she intended the article to be published in the journal. The statement in Ext. z by Mr. Sharpe that “she had intended to send” the article was bis own conclusion and ha qualified1 his conclusion in this respect by saying, “I am not at all certain about this and can only hope etc.”

23. We agree with the further contention of Mr. Ghosh that in order to constitute an offence Under Section 500, IPC mere making an imputation concerning a person is not enough. It must at; the same time be proved that the writing of the defamatory matter was intended to be read by person or persons other than the person of whom it is written and that it was published. In this respect we do not accept the argument of Mr. Niharendu Dutt Majumdar, the learned Counsel for the State, that what is required Under Section 499, I. P. G. is that the person proceeded against should have been either the maker or publisher of the defamatory matter. So that an offence Under Section 500, IPC may be said to have been committed, the alleged defamatory matter must be communicated to a person or persons other than the person defamed.

24. But from what we have discussed above, it has been abundantly proved that Mrs. Sharpe intended the article to be published in the ‘Women’s Own Weekly’. The allegation that the articles were taken out by Mr. Sharpe through mistake; from the ‘wrong file’ kept in the appellant’s desk is clearly an afterthought. The file was marked WOW and the articles were earmarked for the item ‘candid comments’. The other articles taken out from the second file were meant for the four other items. There is no indication in the numerous- letters written by Mrs. Sharpe to either Mr. Hamilton or Mrs. D’Suza, excepting the: letter (Ext. 32) written by her after she came t6 know that a case had been instigated against I Mr. Hamilton, that the offending article was not meant for publication. As we have seen above, she came to know about the despatch of the articles, including the article “Bengali”, by her hudband long before it was published in the journal on the 13th of January. 1062. No steps were taken by her to withhold the article from publication. On the other hand, as appears from what we have discusssd above, she had full approval to the publication of the offending article in trie journal. Mr. Ghosh’s contention has been that trie ratification, if any of the action of hot husband by Mrs. Sharpe subsequent to the publication of the offending article, will not make it her own publication. It, however, appears that by her letter dated 2-1-62, addressed to Mrs. D’Suza, to which reference has already been made, she in effect approved of the articles despatched by her husband. She, on the other hand, asked Mrs. D’Suza if she herself approved of the article by writing in a letter “Let me know if it’s all O. K.” So there Is no substance in this contention of Mr. Ghosh.

25. Mrs. D’Suza admits that she sent the article to ths press knowing it to be defamatory and that the appellant feels aggrieved that the editorial staff did not apply scissors by excluding the offending portion before publishing the article. Mrs. D’Suza. however, has said that she had no authority to do so in respect of the article sent by Mrs. Sharpe. Mr. Hamilton also says that he gave instruction to Mrs. D’Suza not to alter her manuscript on the insistence of Mrs. Sharpe herself. Any how, Mrs. Sharpe cannot now be allowed to take shelter under such a plea.

26. Mr. Ghosh next contended that the complainant was not competent Under Section 198, CrIPC to institute criminal proceedings as a person aggrieved by the alleged offence within the meaning of that section. His argument has been that only person defamed can be said to be the person aggrieved and Section 198 bars cognizance being taken by the Court in respect of an offence falling under Chapter XXI of the Indian Penal Code, which also deals with tie offence of defamation, upon a complaint made by any person other than the person aggrieved. There is no proof that Netaji Subhash Chandra Bose is dead and the Court in the circumstance, had no jurisdiction to take cognizance of the alleged offence upon the complaint of the respondent.

27. The decision on the question raised before us turns upon the construction that may be put on the expression “some person aggrieved” in Section 198 Cri P. C. It cannot be laid down as an inflexible rule that the expression “some person aggrieved” will only be limited to the person actually defamed or affected. The section does not say that complaint can only be made by the person defamed. What it requires is that the complaint must be made by ‘some person aggrieved’. In our opinion the expression “some person aggrieved” was not intended to be restricted to the person actually defamed. As was held in Daem Sardar v. Batu Dhali 3 Cal LJ 38, it must be determined in each case according to its own circumstances whether the complainant could be said to be in a legal sense it person ‘aggrieved’ within the meaning of Section 198, Cri. P. C. In that case Mukherjee, J. as he then was, pointed out the distinction between the phraseology of Sections 198 and 199 in this respect in these words:

For whereas Section 199 allows a complaint of an offence Under Sections 497 and 498 to be preferred only by the husband of the woman, of in his absence by some person who had care of her on his behalf. Section 198 allows a complaint of an offence specified therein and therefore of an offence Under Section 494 to be preferred by any person aggrieved thereby.

The answer to the question, as he further observed, must depend on the nature of the offence and special’ circumstances of each case. In Thakur Das v. Adhar Chandra ILR 32 Cal 425, the view was taken that where imputations were- madle against the character of a widowed Hindu lady, the brother, with whom she was residing, was a person aggrieved w.thin the meaning of Section 198 (see also Dwijendra Nah Talukdar v. Makhon Lai Pramanik , .Surajmal v. Ramnath 28 Cri LJ 996.. : AIR 1928 Nag 5J and Uanru Ram Ramkumar v. Rambarau Thakuri .

28. In our view where the person defamed is an adult and a male and is not incapacitated by physical infirmities or otherwise incapable of attending the Court, no other person should be held to be competent to make a complaint Under Section 500. But where the whereabouts of the person defamed are not known or he has not been heard of for a long time or is not readily available to make a complaint o respect of the ofience and the complainant, as in this case, is his near relation, who lived in the same family and in joint mess with him, suffered incarceration for a number of years in the cause held dear by the person defamed and the alleged defamatory article challenges and castigates his life’s work, he should be held to be a person aggrieved within the meaning of Section 198 and competent to make a complaint in respect of the offence.

29. We get from evidence that late Satish Chandra Bose, the father of the complainant Dwijendra Nath Bose, was the head of the joint family of which Netaji Subhash Bose was a member. Dwijendra Bose was a sincere follower of Netaji and suffered imprisonment in the fight for freedom of India under Netaji’s lead. Netaji disappeared from Calcutta sometime in the month of January, 1941 under dramatic circumstances and he reappeared sometime after in the South-East Asia where he assumed leadership and organised the Indian National Army, known as the ‘I.N.A.’, which waged war against the British with Netaji at its head. Dwijendra Bose would have been one of the first persons to hear of Netaji Subhas Bose had he been alive at this date. He has stated in his evidence “I don’t know where is Netaji now. I have not heard about him since 1945.” His evidence in this respect has not been disputed by the defence. Mr. Ghosh lays stress on his evidence where he says, “I hope he is alive. My personal faith is that he is alive” and argues that the death of Netaji cannot be said to have been proved. We are however, of the opinion, that in view of the evidence that Subhash Chandra Bose has not been heard of for much more than seven years by those who would naturally have heard of him, had he been alive, the presumption Under Section 108 of ths Evidence Act will be that he is dead. The burden will be on the other side to rebut the presumption. The presumption has not been rebutted in this case.

30. Lalchand Marwari v. Ramrup Gir 53 Ind App 24 : AIR 1926 PC 9, relied on by Mr. Ghosh, only lays down that there is no presumption Under Section 108 of the Evidence Act that a person who has not been heard of for seven years, died at the end of the first seven years or at any particular date. Similar view was expressed by this Court in In the goods of Gaaesh Das Aurora, 43 Cal LJ 578: AIR 1926 Cal 1056. But the date of death of, Netaji is not an issue in this case,

31. Under Explanation I to Section 499 of. the Indian Penal Code, imputation against a, deceased person of such a character as would harm, the reputation of that person if living and was intended to be hurtful to the feelings of his family or other near relatives, would amount to defamation. The complainant has stated that he had been intensely hurt and aggrieved by the defamatory article published in the ‘Women’s Own Weekly’.

32. We accordingly, hold that the complainant is a person, aggrieved within the meaning of Section 198 and he is entitled to make the: complaint Under Section 500, IPC

33. Mr. Ghosh has also urged that in the petition of complaint the complainant had simply asked for process Under Section 500, IPC against the appellant and there was; no complaint as required Under Section 198. But on a perusal of the petition of complaint we agree with the learned Magistrate that this contention of Mr. Ghosh is frivolous and must be rejected. Charga Under Section 500, IPC was framed against the accused on evidence recorded after cognizance-and not on a mere perusal of the contents of the petition of complaint.

34. So, the appeal preferred by Mrs. Pat Sharpe must be dismissed and we maintain her conviction Under Section 500, IPC Mr. Ghosh has also addressed us on the question of sentence. We have been unable to find any mitigating circumstance in her favour. The article ‘Bengali’ in. which the defamatory imputations against Netaji Subhash Chandra Bose appear, reveals an extremely perverted mind of the writer. The article not only contains misquotation and misinformation but at places it is full of sordid details and obscenities. It is difficult to conceive that any person with decent education could have written such obnoxious things. The imputations to Netaji were highly scurrilous and defamatory. We also note that Mrs. Sharpe does not appear to be sincerely repentant for what she had written and no unconditional regret was expressed by her. We, therefore, agree with the learned Magistrate that a deterrent sentence is called for in this case. We, however, think that an imposition of fine-of Rs. 1000/- will be a sufficiently deterrent sentence in this case and we remit the sentence of imprisonment for the period of two months passed against her. In default of payment of the fine-she will however, undergo simple imprisonment for two months. With this modification in the sentence, the appeal is dismissed.

R.N. Dutt, J.

35. I agree with the order proposed by my Lord but I should like to add a few words .of my own.

36. I need not recite the facts over again. I straightway come to the points raised by Mr. Ghosh on behalf of the appellant.

37. Mr. Ghosh argues that the learned Chief Presidency Magistrate had no jurisdiction to try or convict the appellant inasmuch as cognizance taken by him of the offence, said to have been committed by her, is illegal. The appellant is said to have defamed Netaji Subhas Chandra Bose. Mr. Ghosh submits that the complainant has failed to prove that Netaji Subhas Chandra Bose was dead at the time when the article in question was published and as such Netaji should be considered to have been alive at that time. And since Netaji was alive, he is the person ‘defamed’ and in view of Section 198 of the Code of Criminal Procedure the complaint can only be filed by Netaii himself. But the complaint on the basis of which the learned Magistrate took cognizance of the offence was actually filed by one Dwijendra. Nath Bbse said to be a nephew of Netaji. Mr. Ghosh iargues ‘that the learned Magistrate was not conipetent to take cognizance of the offence on the basis of a complaint filed by the said Dwijendra Nath Bose. It is tme that the article in question has defamed Netaji but the complaint on the basis of which the learned Magistrate took cognizance was not filed by him. Let me first assume that it has not been proved that Netaji was dead at the time when the article in question was published or in other words let me assume that Nftaji was alive at that time. Section 198 of the Code of Criminal Procedure states that no Court shall take cognizance of an oflence of defamation except upon a complaint made by “some person aggrieved by such offence”. Mr. Ghosh contends that the words “person aggrieved” mean ”person defamed” and as such no person other than Netaji himself was competent to file the complaint. The words used are ‘person aggrieved” and not “person defamed”. Moreover, the legislature had used the words “by some person aggrieved” and not “by the person aggrieved”. It appears to me, therefore, that so far as an offence’ of defamation is concerned the complaint may be made not only by the persons defamed but by sorne person aggrieved by such defamation.

Mr. Ghosh refers to the decision in Sajjad Hossain v. Askari Mirza , in support of his contention. It appears, however, that K. C, Chunder, J. did not decide in that case that no person except the person defamed can in view at Section 198 of the Code, make a complaint. He quashed the proceedings in that case on the ground that no complaint in accordance with the definition of ‘complaint’ as given ;in the Code of Criminal Procedure was filed. This case, therefore, is no authority in support of Mr. Ghosh’s contention.

Mr. Ghosh then refers,to Hussainbhoy Ismailji v. Emperor reported in 156 Ind Cas 567 : AIR 1926 Sind 98. There in that case the person defamjed was the High Priest of a community. The domplaint was filed by a member of the com-munitjy. It was held that the mere fact that the feelings of the complainant have been injured in consequence of a defamatory statement made against his religious head affords him no ground to prosecute the accused for defamation. Rupchand A.J.C. however expressly stated in that case that the person defamed was not always person aggrieved. It will thus appear that this case : in a way negatives Mr. Ghosh’s contention that ‘the words “person aggrieved” mean “person defatted”.

Mr. Ghosh then refers to Jagdish Narain v. Sharrts Ara Begam reported in AIR 1935 Oudh 6. That was a case where a woman was defamed and; the case came under the first proviso to Section 19S of the Code and it was held that the cognizance taken was bad as the requirements of that proviso were not observed. That the words “person aggrieved” do not always mean “person defamed” will also be clear from the definition of defamation itself as contained in Section 499. Explanation 1 to the definition states that imputation against a deceased person may also amount to defamation. If the words “person aggrieved” always meant “person defamed”, in case of defamation of a dead person, it would be only competent for the dead person to make a complaint. That is an absurd result which can never have been contemplated by the Legislature. I cannot accept an interpretation which will lead to such absurdity. I hold, therefore, that the words “person aggrieved” do not always mean “person defamed”. The words ‘person aggrieved’ has a wider connotation than the words ‘person defamed’ and the addition of the word “some” before the words “person aggrieved’ supports this wider connotation. Dwijendra Nath Bose is a nephew of Netaji. He was a to worker with him and the imputation affects not only Netaji but his co-workers and in fact the whole family. I hold, therefore, that Dwijendra Nath Bose is a person aggrieved within the meaning of Section 198 of fie Code of Criminal Procedure and as such even I though it be assumed that Netaji was alive at the time of the publication of the article in question, the complaint made by Dwijendra Nath Bose was competent and the cognizance taken by the learned Magistrate on the basis of this complaint was legal. This finds support in the decision and . Handerson, J. held in the former case that Section 198 of the Code does not say that the complaint, in a case of defamation, can only be made by the ‘person defamed.’

38. There is one other aspect of this question. I have so long assumed that Netaji was alive; at the time of publication of the article. I cannot, however, agree with the submission of Mr. Ghosh that the complainant has failed to prove that Netaji Subhas Chandra Bose was not alive at the time when the article in question was published. He has said in his evidence that Netaji Bose has not been heard of since 1945, Section 107 of the Indian Evidence Act states that when the question is whether a man is aliye or dead and it is shown that he is alive within 30 years the burden of proving that he is dead is on the person who affirms it. Section 108 of the Indian Evidence Act provides a rider and states that when the question is whether a man is alive or dead and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if. he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. Here Dwijendra Nath Bose is a person who would have naturally heard of Netaji if he had been alive. He has said that Netaji has not been heard of since 1945. A presumption Under Section 108 of the Indian Evidence Act, therefore, arises that Netaji is dead. Mr. Ghosh refers to the case of Ganeshdas Aurora reported in 43 Cal LJ 578 :. AIR 1926 Cal 1056 and argues that three is no presumption that Netaji died on a particular date. He is certainly correct is that submission but here we are not concerned with the actual date of death of Netaji but we are concerned with whether Netaji was dead or alive on the day when, the article in question was published. Obviously, Netaji is not being heard of for more than 7 years before that date. It is, thus clear that the presumption that Netaji was dead had already arisen and was effective on that date. It may, therefore, be safely presumed that Netaji was dead on the day the article in question was published. The case thus comes under explanation of Section 499 of the Indian Penal Code and Dwijendra Nath. Bose, as a member of his family and as a person aggrieved, is competent to make the complaint. Mr. Ghosh argues that there can be no conviction in a criminal case on the basis of a presumption. He refers to what may be called a rule of prudence that a person should not be convicted on the basis of a presumption but here the presumption that is being made has no connection with the allegations of facts made against the appellant. It has connection with the question about the legal competence of the cognizance taken by the learned Magistrate, Such presumption in law can be made to find jurisdiction of the learned Magistrate to try the case. Thus in any view of the matter the argument of Mr. Ghosh on this point fails in its entirety and I hold that the cognizance taken by the learned Magistrate was legal and the trial and conviction of the appellant is not without jurisdiction.

39. The allegation against the appellant is that she has defamed Netaji by describing him as ‘traitor’ and ‘quisling’. Mr. Ghosh submits that he will not dispute that the words used are defamatory. If Netaji is alive, there is no doubt that the imputation made against him was intended to harm or that the appellant knew or had reason to believe that such imputation would harm Netaji’s reputation. The imputation, therefore, does amount to defamation. Even if Netaji is dead, it is defamation because the imputation would have harmed his reputation if alive and the imputation must be said to have been intended to be hurtful to the feelings of his family or other near relatives, Thus in any view of the matter the words used do amount to defamation.

40. Mr. Ghosh then submits that the appellant is not the maker of the article in question. The article was published in a Weekly journal “Women’s Own Weekly”. The journal is published from Bombay. It contains a page known as ‘Pat’s page’. The appellant contributes all that is published in that page. The appellant’s case is that she is widely known as the contributor of ‘Pat’s page’ and people desiring to have some topics discussed in ‘Pat’s page’ used to send articles or matters to the appellant and the appellant used to work on those articles or matters and prepare her contributions to ‘Pat’s page’. Portions of the article in question were received by her in this way in hand-written form and she had it typed and corrected and she kept it on her table with a view to work it out into a contribution of her own to be published in the Pat’s page. But suddenly she fell seriously ill and she was admitted in Woodland’s Nursing Home and her husdand without reference to her sent the article to Women’s Own Weekly at Bombay.

It is argued that the appellant is thus not the maker of the article as published. It will however appear from her husband’s evidence that ‘ he found 4 articles including the article in question in one cover and he sent all of them to be published in Pat’s page in four successive issues. These articles were to be published under the heading “Candid comments”. This is the main heading and the other headings contained short articles or comments. Her husband found some other short articles or comments in a separate cover. He sent some of them along with these four of ‘Candid comments’. It would appear from the manner in which these articles were sorted out and kept in separate covers that the appellant before she got ill had finally worked out these articles intending them to be published. The manuscript of the article as sent to Bombay, itself contains evidence that the appellant had herself corrected it and thereby finalised it for publication. It does not appear that she intended to work on it further. Moreover, she made out this case for the first time after she came to know that a criminal case had been started against the Editor of the journal for publishing this article.

The case against the Editor was started of February 7, 1962 and she made out this case for the first time on February 11, 1962 in her letter to the Editor. The article was published on January 13, 1962. The Editor wrote to the appellant on January 22, 1962 that the article in question had provoked protests. The Editor wrote two further letters to the appellant on January 30 and 31, 1962. The appellant replied to these letters and took full responsibility for the article in question as the maker of it. She even said that she was prepared to take the consequences and to prove that what she had written was not defamation. She herself eulogised her own independence as a journalist and informed the Editor that she had the courage of her conviction and was fearless in expressing her conviction. She even sent a defence to the Editor for publication but since the case against the Editor was started she sent a wire stopping the publication of the defence. Upto February 7, 1962 she did not disclaim that she was the maker of the article but on the other hand assumed full responsibility as the maker of the article. It appears however that all courage and independence vanished as soon as j. she learnt of the case against the Editor and when she was made the accused she made out the case denying that she was the maker. The case made at the time of trial has to be testsd in the light of her conduct before the complaint was filed and when tested in that light I have no hesitation in my mind that tins present case was cooked up just to avoid criminal liability. On a considerate on of all these I hold that the appellant is of naker of the article in Question.

41. Mr. Ghosh lastly submits that the appellant was not responsible for the publication of the article, I have said that the article was publ shed In the Journal “Women’s Own Weeklv” on January 13, T962. The appellant examined Dr. Solberg as one of ‘her witnesses. It appears from his evidence that the appellant fell seriously ill on December 10, 1961, became unconscious and was admitted in Woodland’s Nursing Home and remained unconscious upto December 14, 1961. Mr. Ghosh argues that the husband f the appellant without reference to her sent the article in question along with scjme other articles to Women’s Own Weekly by registered post on December 15, 1961 and the article got published without her knowledge or consent Dr. Solberg has said that the appellant became unconscious with cerebral feyer on December 10, 1961 and she was admitted in Woodland’s Nursing Home that very day and was discharged on December 28, 1961. He has further said that the appellant was unconscious upto December 14, 1961. She was allowed visitors after December 18, 1961 but before that, her husband only was allowed to See her. The article in question was sent by registered post by her husband on December 15, 1961. The appellant was unconscious upto December 14, 1961. It was, therefore, not possible to have her consent till December 14, 1961, It is j list possible that her husband might have seen her in the Nursing Home on December 15, 1961 before the article was sent but still in view of the Appellant’s 1ndition on that day, I think, it was not possible for her husband to have consulted the before he actually sent the article in question to Bombay. Some more articles were sent by the appellant’s husband on December 18 or 19, 11961. The appellant’s husband has said that he told his wife about sending of articles on December 17 or 18, 1961. It will thus appear that at least on December 17 or 18, 1961 the appellant had come to know that her husband had sent the article in question to Bombay, for publication. Mr. Ghosh argues that the appellant’s husband sake to her on December 17 or 18, 1961 about the further articles to be sent but he did not inform the appellant that he had sent the article in question. He does net specifically say in his evidence that he spoke to his wife on December 17 for 18, 1961 only about the further articles to be spnt. Moreover it must be said that when the appellant’s husband spoke to her about the further articles to be sent he must have told her about the articles already sent, otherwise she would not be ;in a position to properly advise her husband about the further article to be sent. Obviously, therefore, it must be held that at least on December 17 or 18, 1961 the appellant came to know that the article in question has been sent to Women’s Own Weekly for being published in ‘Pat’s page’. Then again, she came back to her house on December 28, 1961. She wrote a letter to one Mrs. D’Souza, an Assistant Editor of the journal pa January 2, 1962. The appellant states in this letter that before she went to the Nursing Home she had sorted out her articles in weekly instalments. This letter also reveals that she was aware of the fact that the articles sorted out by her had been sent to the journal and she wanted to be assured that it was all O.K. She was then back in; his house and it is unthinkable that she would write like that without ascertaining what articles had been sent by her husband. It is all very easy now to say that she did not know before the; actual publication that her husband had sent the article in question. Bat her denial is to be tested in the light of probabilities and I have no hesitation in believing that the appellant knew on December 17 or 18, 1961 or at least before January 2, 1962 that her husband had sent the article for publication in the ‘Pat’s page’ as her contribution. Had she not been the maker of the article and had not she intended that the article should be published, she would have stopped its publication. The appellant must therefore be held to have intended publication of the article and to have been responsible for the publication.

42. The people of this country remember Subhas Chandra Bose as their ‘beloved Netaji’. By describing him as a ‘traitor’ or a ‘quisling’ the appellant has only disgraced herself.

43. This has no doubt hurt the feelings of the people of this country but their esteem and affection for Netaji will, it is hoped, remain unaffected even in spite of such unfortunate outbursts.

exception 3 and 9 are a matter of trial

Delhi High Court

S. Nihal Singh And Others vs Arjan Das, New Delhi on 24 September, 1982

Equivalent citations: 1983 CriLJ 777, 1983 (1) Crimes 438, 1983 RLR 58

Bench: J Jain

ORDER

1. On 4th November 1981 the New Delhi Edition of “The Indian Express.” a leading newspaper published from various important stations in the country including New Delhi (in shot the ‘Newspaper’) carried a news item titled ‘Cong-I leader blocks checking of food-stuff. (Annexure-‘B’). To be concise the newspaper reported that officials of Delhi Administration led by an SDM. Miss Khiangte, an IAS officer, had gone to the Laxmibai Nagar market on the evening of Tuesday, the 3rd November 1981′, for a surprise checking of foodstuff. The team of officials from the Food and Civil Supplies Department had already collected a few samples of edible oil in glass jars from a shop when the respondent Shri Arjun Das reportedly appeared on the scene. He asked them not to collect samples and he allegedly snatched a few jars and threw them. The official leading the team then went to the Vinay Nagar police station and lodged a complaint to that effect (Annexure-‘B’).

2. On the next following day viz. 5-11-1981 the newspaper published further details of the aforesaid incident as per inspection note submitted by Miss Khiangte to the Delhi Administration on 4-11-81. The news item carried the caption ‘Police case against Arjun Dass’ and alluding to the complaint lodged by her with the police, it reported that :-

Mr. Arjun Dass had used abusive language and intimidated her and a team of seven inspectors of the Directorate for Prevention of Food Adulteration (PFA) when they had gone to the Laxmibai Nagar market for a surprise checking. Miss Khiangte said that Mr. Arjun Dass has asked the checking party not to collect oil sample from a shop and snatched the sample lifted from the shop. Miss Khiangte had conducted that inspection in her capacity as Public Health Authority (PHA).”

3. Some more excerpts from the said report are extracted below for ready reference :-

“Miss Khiangte said that Mr. Arjun Dass had appeared on the scene and threatened that he would not allow her to take any samples. She said that Mr. Arjun Dass has described her as “inhuman” and paid no heed to her contention that sparing one shop during the inspection would mean discrimination. She said when the crowd and Mr. Arjun Das shad started using abusive language she contacted the police control room for help.”

4. The newspaper further reported as below. –

“A reliable source in the Food and Civil Supplies Department said that a team of civil supplies officials was also treated in a similar fashion by Mr. Arjun Dass and his followers on the eve of Diwali. He said the team had gone to check the distribution at fair price shops in the Laxmibai Nagar area.”

5. On 6-11-1981 the respondent instituted a complaint against S/Shri Ram Nath Goenka petitioner in Cr. R. No. 84/82, S. Nihal singh, Arun Shorie, S. K. Kohli, A. N. Dar and Prabhat Joshi, petitioners in Cr. R. No. 83/82 under Section 500 of the I.P.C. He alleged that on the evening of 3-11-1981 when he was sitting at his shop in Laxmibai Nagar market some shopkeepers came to him and told him that some sample had been lifted from M/s. Rai Stores by Food Inspector and the lady S.D.M. in the absence of its owner who was lying in a precarious condition in the hospital and they were insisting that Shri Mukesh son of the shopkeeper who had come after the sample had already been lifted sign all the prescribed papers but Mukesh was protesting saying that since he was not being present when the sample had been lifted the prescribed forms could be signed only by the servant who was then present at the counter. As the request of Shri Mukesh appeared to be reasonable he i.e. the respondent accompanied the other shopkeepers of the locality and made a request to the S.D.M. and the Inspectors very politely to give due consideration to the request of Shri Mukesh. However, the S.D.M. without any provocation snubbed him and directed him to leave the spot. Thereupon he left the spot and returned to his shop, even though the highhanded act of the S.D.M. was gravely criticised by independent person present there. He denied having snatched any jars or glassware containing the samples of food articles and thrown the same. Thus he dubbed both the news reports dated 4-11-1981 and 5-11-1981 published in the newspaper to be false and contended that the same had been made with a view to defame him and lower him in the estimation of his friends, relatives admirers and voters. He asserted that he was a prominent political and social figure of repute in the locality and that the scandalous imputation attributed to him was absolutely false and baseless. He further alleged that the newspaper had been indulging in the character assassination of the respondent.

6. The learned Magistrate after examining him and the witness produced by him observed that a prima facie case of defamation under S. 500/501, I.P.C. was made out against the petitioners for printing and publishing defamatory news on 4th and 5th November 1981. So vide order dated 16th November 1981 he directed all the petitioners to be summoned to face trial for offence under Section 500/501 I.P.C.

7. Feeling aggrieved by the said order the petitioners have come up in the aforesaid revision petitions. Since both the revision petitions spring from the same order and common questions of law and fact are involved therein this order of mine shall dispose of both of them.

8. The learned counsel for the petitioners has at the very outset pointed out that Shri Ram Nath Goenka petitioner in Crl.R. No. 84/82 has been described as owner of the newspaper and is sought to be made liable for the publication of the offending news item on that score. However, as declared at the bottom of the back page of issue dated 4-11-1981 of the newspaper itself the newspaper is owned by M/s. Indian Express Newspaper (Bombay) Private Limited which is a corporate body and not be any individual person much less Shri Goenka. Further according to him, Shri Goenka is at present Chairman of the said company which owns and publishes the newspaper, from ten different centres in India. The submission made precisely is that Shri Goenka not being the owner of the aforesaid company or the newspaper cannot be held liable even vicariously for publication of the offending news items. It is all due to misrepresentation on the part of the respondent that he has been summoned by the trial court. It is pointed out that this fact was to the knowledge of the respondent as would be borne out by the reply filed by him in Crl.M. 214/82 (in Cr. M. (M) No. 76/82). In the said reply the respondent admitted that Shri Goenka was the Chairman of the Indian Express Newspapers (Bombay) Pvt. Ltd. which is a private limited company However, he was explained that it was in the aforesaid context that Sh. Goenka was described as owner he being the Chairman of the private limited company which owns the newspaper. Evidently there is misdescription about Shri Goenkar being owner of the newspaper and it has led the trial court to summon him to face trial. Had the true position been revealed to the trial court this order, in all probablity, would not have been made. Needless to say that as Chairman of the company Shri Goenka can be had liable for the publication of the offending news items only if it is shown that the was somehow concerned with the publication of the defamatory news items. It is highly doubtful that he can be asked to answer the charge of defamation merely because he happened to be the Chairman of the company owning the newspaper without there being any further evidence as regards his participation in the actual management and administration of the affairs of the company. Intention on the part of the accused to harm the reputation or the knowledge or reasonable belief that an imputation will harm the reputation of the person concerned is an essential ingredient of offence under Section 499 I.P.C. but such evidence is totally missing in the instant case. Under the circumstances the impugned order as regards Shri Goenka cannot be sustained on this short ground.

9. As far the petitioners in Cr. R. No. 83/82, it is not disputed that petitioner No. 1. S. Nihal Singh is the Editor-in-Chief of the newspaper, petitioner No. 2 Shri Arun Shorie is the Executive Editor, petitioner No. 3. Shri Prabhat Joshi is the Resident Editor of the New Delhi Edition of the newspaper, petitioner No. 4, Shri A. N. Dhar is the Editor of the “Express News Service” and petitioner No. 5, Shri S. K. Kohli is the Printer, Publisher of New Delhi Edition of the newspaper. This is precisely how they have been described by the respondent in his complaint. It is, therefore to be seen if all or any of them can be held liable for defamation in respect of the offending articles.

10. Section 3 of the Press and Registration of Books Act, 1867 (for short the ‘Act’) provides that every book or paper shall have printed legibly on it the name of the printer and the place of printing and if the book or paper be published, the name of the publisher and the place of publication. Section 5 of the Act requires that every printer and the publisher of a newspaper shall make a statutory declaration before a competent Magistrate in the prescribed form. Further, the name of the owner and the editor have to be printed clearly on each copy. Section 6 contains provisions for authentication of a declaration made under Section 5. Lastly Section 7 lays down that :-

Section 7 : “In any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid, attested by the seal of some Court empowered by this Act to have the custody of such declaration, (or, in the case of the editor, a copy of the newspaper containing his name printed on it as that of the editor) shall be held (unless the contrary be proved) to be sufficient evidence, as against the person whose name shall be subscribed to such declaration, (or printed on such newspaper, as the case may be) that the said person was printer or publisher, or printer and publisher (according as the words of the said declaration may be) of every portion of every (newspaper) whereof the title shall correspond with the title of the (newspaper) mentioned in the declaration (or the editor of every portion of that issue of the newspaper of which a copy is produced).”

11. In other words the printer or the publisher, as the case may be, who has made a declaration under the Act and the editor whose name appears on the copy of the newspaper shall be presumed to be aware of what is printed and published in the issue of the paper. The declaration is prima facie evidence of the publication by the editor of all the news items in the paper. He will not be absolved for the publication of objectionable matter by the mere fact that in the daily routine he had asked the editor/sub-editor etc. to select the news items. The term ‘editor’ is defined in the Act to mean person who controls the selection of the matter that is published in a newspaper. In the instant case the declaration printed at the bottom of the back page of the newspaper shows that the newspaper had been printed and published for the proprietors Indian Express Newspapers (Bombay) Private Limited by S. K. Kohli, petitioner No. 5 and S. Nihal Singh and Prabhat Joshi are Editor-in-Chief and Resident Editor respectively of the newspaper. Ex. facie a resident editor will be an associate of the Editor-in-Chief in the selection of news items and to that extent he is answerable on a charge of defamation. Hence in view of the foregoing provisions of law a presumption will arise against all three of them that they are printer, publisher. Editor-in-Chief and Resident Editor respectively of the newspaper and as such they are aware of the contents of offending news items. However, it is difficult to draw such a presumption in the case of other petitioners viz. Arun Shorie, petitioner No. 2 and A. M. Dar, petitioner No. 4. Their names do not find place in the declaration printed on the newspaper itself and there is no iota of evidence to show that they are in any manner concerned with the collection, control or selection of the matter printed in the newspaper. Their designations as Executive Editor/Editor of the Express News Service will not per se warrant an inference that they are in any way responsible for the selection of the material. An authority for this view may be found in State of Maharashtra v. R. B. Chowdhari, .

12. In the said case the public prosecutor had filed a complaint against four persons who were members of the Editorial Board of a Marathi Weekly named “Maharashtra,” under Section 500 I.P.C. The complaint was that in an issue of the Maharashtra dated October 30, 1959, they had published an article which tended to defame one IAS Officer who was Collector and District Magistrate, West Khandesh in respect of his conduct in the discharge of his public functions. One of the accused Shri Sudhakar Gopal Madane had filed the declaration in the prescribed form under the Act describing himself as the editor, printer and publisher of the newspaper. The particular copy of the Maharashtra in which the alleged defamatory article appeared bore the name of Madane as the editor printer and publisher of the newspaper. It also showed on the front page that the Editorial Board consisted of Madane and three other accused. The question arose whether the members of the Editorial Board could be prosecuted for defamatory article. Adverting to Section 7 of the Act, the Supreme Court held that :-

“Where there is mentioned an editor is a person who is responsible for selection of the material, Section 7 raises the presumption in respect of such a person. The name of that person has to be printed on the copy of the newspaper and in the present case the name of Madane admittedly was printed as the Editor of the Maharashtra in the copy of the Maharashtra which contained the defamatory article. The declaration in Form I which has been produced before us shows the name of Madane not only as the printer and publisher but also as the editor. In our opinion the presumption will attach to Madane as having selected the material for publication in the newspaper. It may not be out of place to note that Madane admitted that he had written this article. In the circumstances not only the presumption cannot be drawn against the others who had not declared themselves as editors of the newspaper but it is also fair to leave them out because they had no concern with the publishing of the article in question.”

13. The ratio of this decision to my mind would aptly apply to the instant case inasmuch as neither Arun Shorie nor A. N. Dar had declared himself as an editor of the newspaper. Significantly during his deposition as P.W. 1 the respondent simply reiterated the description of Arun Shorie and A. N. Dar as given in the complaint itself viz. they are Executive Editor of the newspaper and Editor of the Express New Service respectively. No doubt he has stated in his statement that they are also responsible for the publication of the defamatory news items but that is hardly of any consequence. It is more in the nature of an allegation than evidence of a fact. It was urged by the learned counsel for the respondent that Shri A. N. Dar is sought to be made liable because the offending news items emanated from “Express News Service” as given out in the news items and Shri A. N. Dar being editor thereof, it may be safely presumed that he too was responsible for the publication of the scurrilous news items. Evidently this argument overlooks the vital fact namely that intention on the part of the accused to harm the reputation or the knowledge that it will harm the reputation is an essential ingredient of offence under S. 499, IPC. There is not a shred of evidence on record to warrant an inference of guilty intention knowledge on the part of the either Shri Shorie or Shri Dar. Hence the impugned order cannot be sustained against them too.

14. The next submission made by the learned counsel for the petitioners is that the impugned order betrays total non-application of judicial mind by the learned Magistrate. This contention is sub-divided into three parts. In the first instant it is urged that on a bare reading of the news item in question it is manifest that Miss Khiangte had lodged a complaint against the respondent at Vinay Nagar police station and a case of obstructing public servant in the performance of his official duties was registered against him. Thereafter she submitted an inspection note to the higher authorities giving details of the incident. This could be well noticed by the learned Magistrate while going through the offending news items. It was thus obligatory on the part of the Magistrate to call for both these documents, one from the police station which was in his own jurisdiction and the other from Delhi Administration in order to verify true facts. The argument put forward precisely is that while holding a preliminary enquiry under S. 202, the Magistrate need not confine himself to the evidence adduced by the complainant and he is free to hold any kind of enquiry which he deems fit in order to ascertain the truth/falsehood of the allegations contained in the complaint before dismissing the same under S. 203 or issuing the process under S. 204 of the Code. On the other hand the counsel for the respondent has urged vehemently that no obligation was cast on the Magistrate to summon the First Information Report or the inspection note as urged by the petitioners’ counsel. He has canvassed that the Magistrate could not be expected to summon documents which would constitute virtually the defense of the accused inasmuch as it would have amounted to prejudging the guilt/innocence of the accused.

15. On a bare reading of S. 202 of the Code, it is manifest that the Magistrate may either enquire the case himself or direct the enquiry to be made by a police officer or by such officer as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. The object of an enquiry or investigation under this section is to ensure that no person shall be compelled to answer a criminal charge unless the court is satisfied that there is prima facie case for proceeding and issuing a process against the accused person. In other words enquiry/ investigation envisaged therein is to prevent abuse of the process of court by throwing out at the threshold a false and frivolous complaint. As observed by the Supreme Court in Chandra Deo Singh v. Prokash Chandra Bose, AIR 1963 SC 1340 : (1963 (2) Cri LJ 397) “it is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defense the accused may have can only be enquired into at the trial”. The later observation was apparently made by the Supreme Court in the context of the question whether the accused has a right to take part in the proceedings at the stage of enquiry under S. 202 and their Lordships held in unequivocal terms that “he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so”. The learned counsel for the respondent has invited my attention to the following further observations which were made by Their Lordships while dealing with this aspect of the matter :-

“No doubt, as stated in Sub-section (1) of S. 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant”.

16. These observations are sought to be interpreted by the learned counsel for the respondent as implying that the Magistrate has no power to call any documents or witnesses other than those sought to be produced by the complainant himself. However, on a careful perusal/consideration of the judgment, I am unable to find such a limitation being imposed on the power of the Magistrate in this authority. The Supreme Court as stated above was confronted with the peculiar situation viz. that the Magistrate had even examined the associates of the accused as court witnesses and the suggestion was that he did so at the instance of the counsel for the accused. As I read S. 202(1), I am unable to find any such fetter on the power of the Magistrate while enquiring into the case himself with a view to decide whether or not there is sufficient ground for proceeding. Indeed an alert and experienced Magistrate with a little circumspection and sagacity can see through the game of the complainant and can call for any documents or summon any witnesses who is in his opinion will be able to throw light on the case and help in arriving at a conclusion whether the complaint is devoid of any substance or a prima facie case is made out. There is no strait-jacket rule. If there is any hesitation or doubt in the mind of the court, it can summon any witnesses or call for any documents which in the opinion of the court can aid the court in confirming or removing such hesitation or doubt. Of course, the discretion vesting in him in this respect has to be exercised judicially. He is neither expected to play into the hands of the complainant and chew meekly what he is fed by the complainant nor is he expected to hold a brief for the accused and summon witnesses with a view to find out the defense of the accused, if any. He is neither a post office nor an automation and he is to exercise his jurisdiction as the exigency of the situation demands, the only limitation being that he cannot convert the enquiry into a full scale trial. Of course, he is under a statutory obligation to examine the complainant and the witnesses, if any, produced by him. In this view of the matter, therefore, the Magistrate would have been well advised to call for the First Information Report and the inspection note made by Miss Khiangte to verify if the offending news items were substantially a faithfully reproduction of the allegations made by Miss Khiangte in her official capacity against the respondent or not. However, omission on his part to do so will not necessarily be inferential of either non-application of his judicial mind or failing to perform his duties so as to vitiate the enquiry. Indeed as shall be presently seen it does not even affect in any manner his decision to summon the accused.

17. The second limb of the contention of the petitioners’ counsel as regards non application of judicial mind by the Magistrate is that he has misread and misquoted each and every sentence in the impugned order which he considers to be prima facie defamatory. For instance instead of the sentence “in her complaint she said that Mr. Arjun Dass had used abusive language and intimidated her” as appeared in the newspaper reports, the learned Magistrate has simply reproduced “Mr. Arjun Dass had used abusive language and intimidated her” thus omitting the preceding words “in her complaint she said that”. This according to the learned counsel for the petitioners leaves an impression in one’s mind that the aforesaid insinuation against the respondent was made by the reporter of the news and not by the complainant Miss Khiangte. Similarly according to the report “Miss Khiangte said that Mr. Arjun Dass had asked the checking party not to collect oil sample from a shop and snatched the sample lifted from the shop.” However the insinuation as reproduced in the impugned order is bereft of the opening words “Miss Khiangte said that”. The submission made by the learned counsel for the petitioners, therefore, is that the learned Magistrate while recording the impugned order was all along labouring under the impression that defamatory imputation and insinuation was made by the newspaper and not by Miss Khiangte whose report forms the very basis of the offending news items. It is no doubt true that the learned magistrate has not reproduced the offending excerpts from the report appearing in the newspaper with exactitude but that will not necessarily reflect non application of the judicial mind. It may as well be for the reason that he did not care to compare and tally the quotations in the impugned order with the original news items. At any rate this lapse on his part will not warrant an inference that the misquoting has stemmed from misreading of the offending news items.

17A. Lastly the learned counsel for the petitioners has made a valiant effort to canvass that in the absence of any allegation of malice the learned Magistrates should have held that the news items were published in good faith and for public good inasmuch as the publication was intended to high light unwarranted interference by local politician with the official duties of public servants who had gone on a routine checking of food stuffs with a view to curb adulteration of food articles which was extremely harmful to the society at large. Thus according to him the circumstances of the case speak eloquently of good faith on the part of the petitioners. It was to impress upon public men to maintain a high standard of moral conduct and refrain from obstructing public servants in the discharge of their official duties in order to shield and placate anti-social elements and offenders. In publishing the offending news items the public good is equally transparent on the face of it and in case the maxim res ipsa loquitur is not invoked by the courts even in a self evident case like the present the journalists will find it difficult to discharge their duties in public interest. In other words the press will not be able to function fearlessly and inform the public at large of the anti-social and illegal activities of politicians and other public men who ostensibly claim to be men of high moral caliber and rectitude.

18. This argument to my mind is wholly misconceived, having regard to settled law on the subject. The petitioners seek to invoke Third and Ninth Exceptions to S. 499. Exception Third embodies the doctrine of fair comment. Where a writer makes the public conduct of a public man the subject of comment, and it is for the public good, the writer is not liable to an action if the comments are made honestly and he honestly believes the facts to be as he states them. However, an imputation or criticism cannot be justified on the ground of fair comment, the moment it is shown that the criticism is based upon a misstatement of facts. Whether or not it is for public good, is question of fact and like any other defense the onus of proving the same lies on the accused. It has been repeatedly held that the freedom of the press is not higher than the freedom of an ordinary citizen and is subject to the same limitations as are imposed by Art. 19(2) of the Constitution. The limitations, inter alia are to the effect that the freedom of speech and expression is not to be exercised in such a way as to constitute an infraction of the law relating to defamation. Just as every individual possesses the freedom of speech and expression, every person also possesses a right to his reputation which is regarded as properly. In the instant case the offending news items do not involve an element of comment by the author or the editor of the news items. It simply purports to be a report based on the complaint and the inspection note made by Miss Khiangte. It is, therefore, highly doubtful that Third Exception can be pressed into service by the petitioners. The only other exception on which the petitioners’ defense hinges is Exception 9. This exception affords protection when a defamatory statement is 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. This exception is wide enough to cover not only such allegations of fact as could be proved true but also expression of opinion and personal inferences.

19. Good faith is a question of fact. Public good is also a question of fact. So it will have to be found out whether the petitioners acted with due care and attention. Honesty of purpose would also been an essential ingredient in judging good faith. While dealing with the nature and scope of the onus of proof which the accused has to discharge in seeking the protection of Exception 9, the Supreme Court observed in Harbhajan Singh v. State of Punjab, that “simple belief or actual belief by itself is not enough. It must be shown that the belief in the impugned statement had a rational basis and was not just a blind simple belief. That is where the element of the due care and attention plays an important role”. Adverting to the foregoing observations with approval, the Supreme Court held in Sukra Mahto v. Basu Deo Kumar Mahto, “The person alleging good faith has to establish as a fact that he made enquiry before he made the imputation and he has to give reasons and facts to indicate that he acted with due care and attention and was satisfied that the imputation was true. The proof of the truth of the statement is not an element of the Ninth Exception as of the First Exception to S. 499. In the Ninth Exception the person making the imputation has to substantiate that his enquiry was attended with due care and attention and he was thus satisfied that the imputation was true. The accent is on the enquiry care and objective and not subjective satisfaction”.

20. In the later authority reference was also made to the following observations in Chaman Lal v. State of Punjab, “In order to establish good faith and bona fide it has to be seen first the circumstances under which the letter was written or words were uttered; secondly whether there was any malice; thirdly, whether the appellant made any enquiry before he made the allegations; fourthly, whether there are reasons to accept the version that he acted with care and caution and finally whether there is preponderance of probability that the appellant acted in good faith”.

21. Only recently the Supreme Court had an occasion to consider almost an identical question which arises in the instant case. There (Sewakram v. R. K. Karanjiya. ) an editor of a newspaper viz. the respondent was prosecuted under Section 500, I.P.C. for publication of a news item which was per se defamatory. The editor alleged that he published the news item on basis of an Enquiry Report submitted by a high official to the Government relating to certain irregularities committed in jail. He claimed protection under Exception Ninth to S. 499. The Report was made available to the High Court in a petition under S. 482 Cr.P.C. which was filed by the editor. The High Court on a perusal of the said Report quashed the prosecution on the ground that the editor was entitled to the protection under S. 499, Exception 9. On Special Leave to Appeal being granted the Supreme Court by a majority of two to one reversed the order of the High Court holding that the High Court has prejudged the whole issue without the trial of the person and the same has resulted in manifest miscarriage of justice. Sen, J. with whom Chinnappa Reddy, J. concurred made the following observations as regards the evidentiary value of the Enquiry Report.”The contents of the Enquiry Report cannot be made use of unless the facts are proved by evidence aliunde. There is also nothing on record to show that the accused persons made any enquiry of their own into the truth or otherwise of the allegations or exercised due care and caution for bringing the case under the Ninth Exception. The Enquiry Report cannot by itself furnish the lacunae”. Chinappa Reddy, J., in his separate judgment clarified the position still further as regards the concept of good faith. His Lordship observed that :

“The insistence is upon the exercise of, due care and attention. Recklessness and negligence are ruled out by the very nature of the definition. The standard of care and attention must depend on the circumstances of the individual case, the nature of the imputation, the need and the opportunity for verification the situation and context in which the imputation was made, the position of the person making the imputation, and variety of other factors. Good faith therefore, is a matter for evidence. It is a question of fact to be decided on the particular facts and circumstances of each case. So too the question whether an imputation was made for the public good. In fact the 1st Exception of S. 499 Penal Code expressly states “Whether or not it is for the public good is a question of fact”. ‘Public Good’ like ‘Good faith’ is a matter of evidence and not conjecture.”

22. Thus in view of the clear legal position as enunciated by their Lordships, the stage for deciding whether the petitioners acted in good faith and for public good or not has not arrived yet. The question can, therefore, be decided only after the plea of the accused is recorded. Needless to say that the complainant shall be entitled to demolish the defense by whatever evidence he chooses to adduce in this behalf. Reference in this context be also made to Balraj Khanna v. Moti Ram, , wherein too it was held that :-

“The question of applicability of the Exceptions to Section 499 I.P.C. as well as all other defenses that may be available to the appellants will have to be gone into during the trial of the complaint and not at the stage of enquiry under Section 202 of the Code.”

23. The learned counsel for the petitioners has in answer to the foregoing decisions placed reliance on Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, . In the said case the Magistrate had directed enquiry under Section 202 of the Code for ascertaining the truth or falsehood of a complaint and on receipt of the report from the Enquiry Officer which supported a plea of self-defense made by the person complained against, the learned Magistrate dismissed the complaint. The question arose as to whether it was open to the Magistrate to hold that the plea of self-defense was correct on the basis of the report and the statements of witnesses recorded by the Enquiry Officer. Replying in the affirmative, their Lordships observed as follows :-

“The Magistrate must apply his judicial mind to the materials on which he has to form his judgment. In arriving at his judgment he is not fettered in any way except by judicial considerations; he is not bound to accept what the inquiring officer says, nor is he precluded from accepting a plea based on an exception provided always there are satisfactory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not. If the Magistrate has not misdirected himself as to the scope of an inquiry under Section 202 and has applied his mind judicially to the materials before him, it would be erroneous in law to hold that a plea based on an exception can never be accepted by him in arriving at his judgment.”

24. The learned counsel for the petitioners has fervently urged that this decision still holds the field and in none of the subsequent judgments adverted to above, the Supreme Court has taken a contrary view. It would no doubt appear to be so but at present we are concerned with the specific question whether a defense pleas based on any of the exceptions to Section 499 I.P.C. can be considered and spelt out by the magistrate even at the stage of enquiry under Section 202 of the Code i.e. even before such a plea is raised by the accused. The Supreme Court has consistently held that the stage for considering such a plea is only after trial has commenced and the plea of the accused is recorded. If that be so surely such a plea cannot be considered by this Court in a revision or even in exercise of its inherent powers under Section 482 of the Criminal P.C. unless, of course it can be said to be a clear case of abuse of process of court or it is necessary to secure the ends of justice. Evidently these considerations do not arise in the instant case. Hence this contention of the learned counsel for the petitioners merits rejection as being premature.

25. To sum up the impugned order cannot be sustained as regards Shri Ram Nath Goenka, petitioner in Crl.R. No. 84/82 and S/Shri Arun Shourie and A. N. Dhar, petitioners in Crl.R. No. 83/82. It is accordingly quashed qua them. However, the case shall proceed further as regards the other petitioners viz. S. Nihal Singh, Prabash Joshi and S. K. Kohli.

26. Order accordingly.