501ipc – Defamation

Mohammed Abdulla Khan vs Prakash K

5th Sep 201913th Sep 2019 by 498anlr, posted in Uncategorized

Excerpt:

Where defamatory matter is printed (in a newspaper or a book etc.) and sold or offered for sale, whether the owner thereof can be heard to say that he cannot be made vicariously liable for the defamatory material carried by his newspaper etc. requires a critical examination.

27. Each case requires a careful scrutiny of the various questions indicated above. Neither prosecutions nor the power under Section 482 CrPC can be either conducted or exercised casually as was done in the case on hand.

Supreme Court of India
Mohammed Abdulla Khan vs Prakash K. on 4 December, 2017
Author: Chelameswar
Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2059 OF 2017
(Arising out of Special Leave to Appeal (Crl.) No.1741 of 2017)
Mohammed Abdulla Khan … Appellant

Versus

Prakash K. … Respondent
JUDGMENT
Chelameswar, J.

1. Leave granted.

2. The sole respondent is admittedly the owner of a Kannada Daily Newspaper by name “Jaya Kirana” published from Mangalore, Karnataka. On 16.12.2013, the said newspaper carried a news item containing certain allegations against the appellant herein. According to the appellant, the allegations are highly defamatory in nature.

3. The appellant lodged a report with the Panambur Police, Mangalore, Dakshina Kannada District on 17.12.2013 against the respondent and another person who was editor of the above mentioned newspaper. Police did not take any action. Thereafter, the appellant filed a private complaint against the respondent and the editor of the above mentioned newspaper before the J.M.F.C.-II, Mangalore in PCR No.24/2014 which eventually came to be numbered as CC No.1252 of 2014. The learned Magistrate took cognizance of the matter on 15.04.2014 for the offences punishable under Section 500, 501 and 502 of the Indian Penal Code, 1860.

4. Aggrieved by the order dated 15.04.2014, the respondent carried the matter in Revision Petition No.219 of 2014 before the Sessions Judge, Dakshina Kannada, Mangalore. By the order dated 06.11.2015, the respondent’s revision was dismissed. Respondent further carried the matter in Criminal Petition No.8679 of 2015 to the Karnataka High Court invoking Section 482 of the Code of Criminal Procedure, 1973. By an order dated 23.11.2016, the said petition was allowed and the proceedings in CC No.1252 of 2014, insofar as they pertained to the respondent, were quashed.

5. Both in his revision as well as the petition under Section 482 Cr.P.C., the respondent urged various grounds which according to him render the order dated 15.04.2014 illegal. The details of those various grounds are not necessary for our purpose.

6. The judgment under appeal is very cryptic. The first three paragraphs of the judgment under appeal (running into a short one and a half page) purport to take note of only one submission of the respondent.

“Para 2. The learned Counsel for the petitioner would point out that there can be no vicarious liability insofar as the criminal law is concerned. The complainant’s allegation of the defamatory material published in the newspaper against him, even if it is established, can only be sustained against the editor of the newspaper and not the owner of the newspaper. The petitioner admittedly was the owner. The newspaper carries a legend that the newspaper is edited and published on behalf of the petitioner and there is no dispute in this regard.”

7. It appears from the judgment under appeal that the appellant herein argued that in view of the law laid down in K.M. Mathew v. K.A. Abraham, (2002) 6 SCC 670 the respondent’s objection could not be sustained. High Court rejected the submission of the appellant.

“Para 3. Though the learned Counsel for the respondent would seek to contend that the question is no longer res integra and is covered by a judgment of the Supreme Court in the case of K.M. Mathew vs. K.A. Abraham, AIR 2002 SC 2989, it is however noticed that the said decision was in respect of a managing editor, resident editor or a chief editor of respective newspaper publications, who were parties therein.” The learned Judge recorded that the judgment in K M Mathew’s case could be distinguished and, therefore, opined that the respondent’s petition is required to be allowed.

“Para 3. … Therefore, at the outset, it can be said that the said case could be distinguished from the case on hand, as, the petitioner is not claiming as an editor, who had any role in the publication of the newspaper. Therefore, it is a fit case where the petition should be allowed.” It is unfortunate that the High Court did not choose to give any reason whatsoever for quashing the complaint except a grand declaration that “it would lead to a miscarriage of justice”.

“Accordingly, though the criminal proceedings can go on against the editor of the newspaper, the petitioner cannot be proceeded with, as it would lead to a miscarriage of justice.” Hence, the appeal.

8. Before us, the appellant appeared in person. In spite of the service of notice, the respondent neither chose to appear in person nor through a counsel. In view of the fact that a substantial question of law is involved in the matter, we thought it appropriate to request Shri M.N. Rao, learned Senior Advocate to assist the Court in this matter.

9. Heard Shri M.N. Rao, learned Senior Advocate for the appellant.

10. Section 499 IPC defines the offence of defamation. It contains 10 exceptions and 4 explanations. The relevant portion reads;

“Section 499. Defamation.— Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.”
11. An analysis of the above reveals that to constitute an offence of defamation it requires a person to make some imputation concerning any other person;

(i) Such imputation must be made either

(a) With intention, or

(b) Knowledge, or

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

(ii) Imputation could be, by

(a) Words, either spoken or written, or

(b) By making signs, or

(iii) Imputation could be either made or published. The difference between making of an imputation and publishing the same is:

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

The essence of publication in the context of Section 499 is the communication of defamatory imputation to persons other than the persons against whom the imputation is made.1

12. Committing any act which constitutes defamation under Section 499 IPC is punishable offence under Section 500 IPC. Printing or engraving any defamatory material is altogether a different offence under Section 501 IPC. Offering for sale or selling any such printed or engraved defamatory material is yet another distinct offence under Section 502 IPC. Khima Nand v. Emperor , (1937) 38 Cri LJ 806 (All); Amar Singh v. K.S. Badalia, (1965) 2 Cri LJ 693 (Pat)
13. If the content of any news item carried in a newspaper is defamatory as defined under Section 499 IPC, the mere printing of such material “knowing or having good reason to believe that such matter is defamatory” itself constitutes a distinct offence under Section 501 IPC. The sale or offering for sale of such printed “substance containing defamatory matter” “knowing that it contains such matter” is a distinct offence under Section 502 IPC.

14. Whether an accused (such as the respondent) against whom a complaint is registered under various Sections of the IPC (Sections 500, 501 & 502 IPC) could be convicted for any of those offences depends upon the evidence regarding the existence of the facts relevant to constitute those offences.

15. In the context of the facts of the present case, first of all, it must be established that the matter printed and offered for sale is defamatory within the meaning of the expression under Section 499 IPC. If so proved, the next step would be to examine the question whether the accused committed the acts which constitute the offence of which he is charged with the requisite intention or knowledge etc. to make his acts culpable.
16. Answer to the question depends upon the facts. If the respondent is the person who either made or published the defamatory imputation, he would be liable for punishment under Section 500 IPC. If he is the person who “printed” the matter within the meaning of the expression under Section 501 IPC. Similarly to constitute an offence under Section 502 IPC, it must be established that the respondent is not only the owner of the newspaper but also sold or offered the newspaper for sale.

17. We must make it clear that for the acts of printing or selling or offering to sell need not only be the physical acts but include the legal right to sell i.e. to transfer the title in the goods – the newspaper. Those activities if carried on by people, who are employed either directly or indirectly by the owner of the newspaper, perhaps render all of them i.e., the owner, the printer, or the person selling or offering for sale liable for the offences under Sections 501 or 502 IPC, (as the case may be) if the other elements indicated in those Sections are satisfied.

18. Whether the content of the appellant’s complaint constitutes an offence punishable under any one or all or some of the above mentioned sections was not examined by the High Court for quashing the complaint against the respondent. So we need not trouble ourselves to deal with that question. We presume for the purpose of this appeal that the content of the appellant’s complaint does disclose the facts necessary to establish the commission of one or all of the offences mentioned above. Whether there is sufficient evidence to establish the guilt of the respondent for any one of the above mentioned three offences is a matter that can be examined only after recording evidence at the time of trial. That can never be a subject matter of a proceeding under Section 482 Cr.P.C.

19. From the judgment under appeal, it appears that before the High Court it was argued on behalf of the respondent that there is no vicarious liability in criminal law and therefore the owner of a newspaper cannot be prosecuted for the offences of defamation.

“2. The learned counsel for the petitioner would point out that there can be no vicarious liability insofar as the criminal law is concerned. The complainant’s allegation of the defamatory material published in the newspaper against him, even if it is established, can only be sustained against the editor of the newspaper and not the owner of the newspaper. The petitioner admittedly was the owner. The newspaper carries a legend that the newspaper is edited and published on behalf of the petitioner and there is no dispute in this regard.”

20. It appears from para 3 of the judgment that the appellant herein submitted in response to the above extracted contention of the respondent that the question is no longer res integra and is covered by a judgment of this Court in K.M. Mathew v. K.A. Abraham & Others.2 The High Court rejected the submission holding: “…….it is however noticed that the said decision was in respect of a managing editor, resident editor or a chief editor of respective newspaper publications, who were parties therein. Therefore, at the outset, it can be said that the said case could be distinguished from the case on hand, as, the petitioner is not claiming as an editor, who had any role in the publication of the newspaper. Therefore, it is a fit case where the petition should be allowed.” The High Court concluded that prosecution of the respondent would lead to miscarriage of justice. A conclusion without any discussion and without disclosing any principle which forms the basis of the conclusion.

FACTS, ISSUE & RATIO DECIDENDI OF K.M. MATHEW’S CASE:

21. K.M. Mathew was the “Chief Editor” of a daily called Malayalam Manorama. When he was sought to be prosecuted for the offence of defamation, he approached the High Court under Section 482 Cr.P.C. praying that the prosecution be quashed on the ground that Section 7 of the Press and Registration of Books Act, 1867 only permits the prosecution of the Editor but not the Chief Editor. The High Court rejected the submission. (2002) 6 SCC 670
22. Even before this Court, the same submission was made.3 This Court rejected the submission holding:

“16. The contention of these appellants is not tenable. There is no statutory immunity for the Chief Editor against any prosecution for the alleged publication of any matter in the newspaper over which these persons exercise control.” It was further held that though the presumption under Section 7 of the Press and Registration of Books Act, 1867 is not applicable to somebody whose name is printed in the newspaper as the Chief Editor, the complainant can still allege and prove that persons other than the Editor, if they are responsible for the publication of the defamatory material.
“20. The provisions contained in the Act clearly go to show that there could be a presumption against the Editor whose name is printed in the newspaper to the effect that he is the Editor of such publication and that he is responsible for selecting the matter for publication. Though, a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Managing Editor, nevertheless, the complainant can still allege and prove that they had knowledge and they were responsible for the publication of the defamatory news item. Even the presumption under Section 7 is a rebuttable presumption and the same could be proved otherwise. That by itself indicates that somebody other than editor can also be held responsible for selecting the matter for publication in a newspaper.”
23. K.M. Mathew’s case has nothing to do with the question of vicarious liability. The argument in K.M. Mathew’s case was that in view of Section 7 of the Press and Registration of Books The contention of the appellants in these cases is that they had not been shown as Editors in these publications and that their names were printed either as Chief Editor, Managing Editor or Resident Editor and not as “Editor” and there cannot be any criminal prosecution against them for the alleged libellous publication of any matter in that newspaper. [Para 15 of K.M. Mathew’s case] Act, 1867 only the Editor of a newspaper could be prosecuted for defamation. Such a submission was rejected holding that Section 7 does not create any immunity in favour of persons other than the Editor of a newspaper. It only creates a rebuttable presumption that the person whose name is shown as the editor of the newspaper is responsible for the choice and publication of the material in the newspaper. K.M. Mathew’s case made it clear that if a complaint contains allegations (which if proved would constitute defamation), person other than the one who is declared to be the editor of the newspapers can be prosecuted if they are alleged to be responsible for the publication of such defamatory material.

The High Court, in our opinion, without examining the ratio of K.M. Mathew’s case chose to conclude that the decision is distinguishable. The judgment of the High Court is absolutely unstructured leaving much to be desired.

24. Vicarious liability for a crime is altogether a different matter. In England, at one point of time, the owner of a newspaper was held to be vicariously liable for an offence of defamation (libel). The history of law in this regard is succinctly stated by Lord Cockburn in The Queen v. Holbrook.4 Though there appears to be some modification of the law subsequent to the enactment of Lord Campbell’s Act i.e. the Libel Act 1843 (6&7 Vict C 96).

Lord Campbell’s Act did not apply to India. The Press and Registration of Books Act (Act XXV of 1867) is made applicable to British India and continues to be in force by virtue of the declaration under Article 372 of the Constitution of India. There are material differences between the scheme and tenor of both the enactments. In Ramasami v. Lokanada, (1886) ILR 9 Mad 692, it was held:

“… But we cannot hold that the provisions of that Statute (Ed.
Lord Campbell’s Act) are applicable to this country, and we must determine whether the accused is or is not guilty of defamation with reference to the provisions of the Indian Penal Code. We consider that it would be a sufficient answer to the charge in this country if the accused showed that he entrusted in good faith the temporary management of the newspaper to a competent person during his absence, and that the libel was published without his authority, knowledge or consent. As the Judge has, however, misapprehended the effect of Act XXV of 1867, we shall set aside the order of acquittal made by him and direct him to restore the appeal to his file, to consider the evidence produced by the accused and then to dispose of the appeal with reference to the foregoing observations.” and reiterated in Emperor v. Bodi Narayana Rao and G. Harisarvothama Rao, (1909) ILR 32 Mad 338:

“Lord Campbell’s Act, of course, is not in force in India, and the Criminal Law of England is not necessarily the same as the Criminal Law of India as contained in the Indian Penal Code …” L.R. 3 QBD 60
25. The extent of the applicability of the principle of vicarious liability in criminal law particularly in the context of the offences relating to defamation are neither discussed by the High Court in the judgment under appeal nor argued before us because the respondent neither appeared in person nor through any advocate. Therefore, we desist from examining the question in detail. But we are of the opinion that the question requires a serious examination in an appropriate case because the owner of a newspaper employs people to print, publish and sell the newspaper to make a financial gain out of the said activity. Each of the above mentioned activities is carried on by persons employed by the owner.

26. Where defamatory matter is printed (in a newspaper or a book etc.) and sold or offered for sale, whether the owner thereof can be heard to say that he cannot be made vicariously liable for the defamatory material carried by his newspaper etc. requires a critical examination.

28. The judgment under appeal cannot be sustained for the reasons indicated above. The same is, therefore, set-aside and the appeal is allowed. The trial court will now proceed with the case in accordance with law.

………………………………….J. (J. CHELAMESWAR) ………………………………….J. (S. ABDUL NAZEER) New Delhi December 4, 2017

Vishveshwar Kumar vs State Of U.P. And Another

5th Sep 2019 by 498anlr, posted in Uncategorized

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.]

exception 3 and 9 are a matter of trial

1st May 201913th Sep 2019 by 498anlr, posted in Uncategorized

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.

Prof. Ram Prakash vs D N Srivastava & Anr.

19th Apr 201920th May 2019 by 498anlr, posted in Uncategorized

Delhi High Court

Prof. Ram Prakash vs D N Srivastava & Anr. on 28 July, 2014

Author: S. Muralidhar

    IN THE HIGH COURT OF DELHI AT NEW DELHI

                           CRL.L.P. No. 529 of 2012
             (converted into Crl. A. No.___________of 2014)

                                                    Reserved on: July 23, 2014
                                                    Decision on: July 28, 2014

         PROF. RAM PRAKASH                           ..... Appellant-in-person.

                                 versus

         D N SRIVASTAVA & ANR.               ..... Respondents
                      Through: Mr. Santosh Kumar, Advocate
                      with Respondents 1 and 2 in person.

         CORAM: JUSTICE S. MURALIDHAR

                                 JUDGMENT

28.07.2014

1. The Petitioner Prof. Ram Prakash seeks leave to appeal against the judgment dated 1st June 2012 passed by the learned Metropolitan Magistrate-04 (South) [MM], Saket Courts Complex, New Delhi, acquitting the Respondents of the offences under Section 500 read with Section 34 of the Indian Penal Code (IPC)

2. Mr. Santosh Kumar, learned counsel for the Respondents raised a preliminary objection that the criminal leave petition was time-barred and that an application for condonation of delay ought to have been filed.

3. It is seen that the impugned judgment of the learned trial Court is dated 1st June 2012. The Petitioner filed a criminal revision petition before the learned Additional Sessions Judge. By an order dated 29th September 2012, the learned ASJ dismissed the criminal revision petition on the ground of maintainability. Within thirty days of obtaining a certified the copy of the said order, the present criminal leave petition was filed on 30th October 2012. The Court, in these circumstances, does not find any merit in the submission of learned counsel for the Respondent as regards the limitation.

4. Having heard the Petitioner in person and learned counsel for Respondents, the Court is of the view that there are sufficient grounds made out for grant of leave to appeal.

5. The petition is allowed and the case is directed to be registered as a regular criminal appeal.

Crl. A. No. of 2014 (to be registered and numbered by the Registry) The complaint

6. The Appellant Prof. Ram Prakash filed a complaint on 27 th November 2008 against Respondent No. 1, Assistant Editor, „Jan Vikas‟ and Respondent No. 2, Editor, „Jan Vikas‟ under 500 and 501 IPC stating that the Respondents had knowingly published a defamatory news item titled ‘Adaalat ke aadesh par bhi Nagar Nigam Maun’ (Despite Court Orders, Municipal Corporation Silent) in the 3 rd to 9th December 2007 issue of „Jan Vikas‟, a Hindi newspaper published in South Delhi.

7. The Appellant, inter alia, stated in his complaint that he was the owner of the property at B-48 South Extension Part-I, New Delhi- 110049 (hereinafter the property in question). He was a retired professor enjoying a good reputation. Respondent No. 1 was a tenant occupying a room with an attached toilet cum bath in the property in question. He had defaulted in payment of rent and occupied a certain portion not let out to him without authorisation. Prof. Ram Prakash had been compelled to initiate litigation against Respondent No. 1 which lasted nearly fourteen years before the trial courts and appellate courts and this had led to unpleasantness between the parties. At the time of filing of the complaint Respondent No. 1 owed Rs. 90,000 to Prof. Ram Prakash as the decretal amount and in another case (443 of 2002) despite the trial Court issuing five warrants of arrest, and despite filing nineteen contempt applications, there had been no compliance by Respondent No. 1 with the orders of the court.

8. Prof. Ram Prakash in his complaint listed out the defamatory portions of the news item. Inter alia, the news item made a specific reference to the property in question and alleged that despite having been served with a notice by the Municipal Corporation of Delhi (MCD) and despite notice by a Local Commissioner (LC) appointed by the Delhi High Court, Prof. Ram Prakash had, as a result of some „extra ordinary setting‟ and influence, prevented the MCD from taking action. The news item further alleged that the ground floor of the property in question had been used by Bengali Sweet Centre for a kitchen and godown and about 10-12 servants were living there. The said news item further alleged that the property in question which was a residential property, was being misused for commercial purposes.

9. Prof. Ram Prakash, in his complaint, averred that the news item was published “without verification of truth and with wilful blindness and malafide intention…..”; and that it was published by the Respondent with malicious motive. Prof. Ram Prakash further stated that in Suit No. 436 of 2006 filed by him against his previous tenant for the recovery of property tax and damages which was pending in the Court of the Additional District and Sessions Judge, Delhi, the tenant while cross-examining Prof. Ram Prakash on 20th August 2008 confronted him with the said issue of the „Jan Vikas‟ containing the defamatory news item in support of his allegation that Prof. Ram Prakash was manipulative and a habitual defaulter with a doubtful reputation. Prof. Ram Prakash, in his complaint, therefore stated that on account of the publication of the said defamatory news item his reputation and goodwill had suffered. He underwent severe mental pain and agony. Further, he was required to clarify his position before local authorities several times in view of the false allegations of the Respondents. He claimed that he was entitled to recover a fine of Rs.20,000 from the Respondents and reserved his right to claim damages against the Respondents in civil proceedings.

The trial

10. By an order dated 19th March 2009 both the Respondents were summoned for the offences punishable under Sections 500 and 501 IPC. Notice for the offences under section 500/34 IPC against both the Respondents was framed on 20th November 2010. They pleaded not guilty and claimed trial.

The Evidence

11. Prof. Ram Prakash examined himself as CW-1. The Respondents examined five witnesses. Maheshwar Sharma (DW-1) was a resident and neighbour of the property in question. In his examination-in-chief, he stated that the premises were being used for commercial purpose by Bengali Sweets Centre but in his cross-examination he stated that he had not actually seen the basement being used for preparation of sweets. DW-1 claimed to have seen the employees of Bengali Sweets in their uniform but he himself never went inside the ground floor of the property in question.

12. Mr. Shamsher Singh (DW-2), Senior Town Planner (L), Town Planning Department, MCD stated that he had brought the original letter dated 26th September 2008 written by the MCD in response to an application filed by Respondent No. 1 under the Right to Information Act, 2003. Two queries raised in the application pertained to hostel and paying guest accommodation being provided in the property in question. The said letter of the MCD stated that use of the premises as hostel is permitted in the residential use zone. He claimed in his cross-examination that he had given only a general statement about the definition of „hostel‟ as per the Master Plan and nothing specific to the property. He stated “I cannot say anything what is going on in the premises B-48, South Extension Part- 1, New Delhi. I do not know anything about the aforesaid property”.

13. DW-3 was Charan Singh, a UDC in the Property Tax Department, MCD. He brought the certified copy of the reply dated 17 th March 2010 to the RTI application dated 24th February 2010. This reply was marked as Ex. DW3/A. A perusal of the said document shows that the MCD had clarified that “As per available record, as per report of the then area Inspector dated 16.05.2001, the basement and Ground floor in the property were found occupied by CMCS, tenanted for office use; First floor (1 room) was found rented to Subham International; First floor rented to Mr. Bindra and Second floor were found locked”.

14. DW-4 was Ravi Kant Gupta, an Assistant Engineer in the Building Department, MCD. He brought attested copies of the replies dated 3rd April 2008 (Ex.DW4/A and Ex.DW4/B), reply dated 3rd September 2008 (Ex.DW4/C), reply dated 26th October 2009 (Ex.DW4/D), reply dated 4th September 2008 (Ex.DW4/E) and reply 22nd December 2008 (Ex.DW4/F) in response to various RTI applications filed by the Respondent No. 1 on 27 th February 2008; 5th August 2008 and 6th October 2009 respectively. These replies showed that no girl hostel was running in the premises in question. However, the first floor was being used as a paying guest accommodation. The property was booked on 12th June 2002 “for action u/s 344(1) and 343” of the DMC Act on account of unauthorized construction. No fine had been imposed on the building owner and that despite several attempts, demolition actions could not be taken “due to non- availability of police on all occasions”. Only two refusal letters of the police force dated 15th and 28th January 2003 were on record. The Department had never attempted to stop commercial use of the property in question and even at present it was not being used for commercial use and that although 72 letters were written for requisition of the police force for taking action for the period 12th June 2002 to 5th August 2008, no action was taken.

The trial Court judgment

15. The trial Court has, in the impugned judgment, discussed the evidence in detail. The trial Court concluded that the imputations in the article in question “would definitely harm the reputation of any person, in the estimation of the right thinking members of the society”.

16. The trial Court next proceeded to examine whether the action of the Respondents gave them the benefit of the First and Ninth Exceptions to Section 499 IPC. The trial Court concluded that the property in question had indeed been booked for unauthorised construction and despite several attempts the MCD did not take steps to demolish the said unauthorised construction. Further, the evidence of DW-3 and Ex.DW3/A proved that the Complainant did let out his property for commercial purpose. It was concluded that on a wholesome reading of the news item “it appears that the article does not specifically target any individual although it refers to the Complainant by name”. There was no material on record to show that the news item had been written by the Respondents out of malice and therefore they were entitled to the benefit of First and Ninth Exceptions to Section499 IPC as well.

Analysis of the news item

17. The news item is titled ‘Adalat Ke Aadesh Par Bhi Nagar Nigam Maun’ which when loosely translated reads ‘Despite Court Orders MCD Silent ‘. A translated copy thereof has been placed on record by the Appellant and its correctness is not contested by the Respondents. The first para of the news item talks generally about the failure by the MCD to take action despite orders of the Court. It states that the MCD takes actions according to its whims and fancies, even at the cost of violation of the orders of the Court, if the owner of the property is from a political background or belongs to the land mafia or is a reputed property dealer.

18. The next para begins by saying that there have been numerous instances in Delhi where construction of residential houses is not according to the sanctioned plan. It mentions that residents of these areas state that no action has been taken despite repeated complaints to the MCD at every level. The actions of the demolition squad of the MCD are an eye-wash and illegal encroachers do not suffer. The news item then proceeds to state that the MCD demolition squad does not even enter those streets where persons with good connections (Unchhi pahunch wale log) have made illegal encroachments.

19. Soon after the above statement, as an illustration, the article proceeds to draw the attention of the reader to the property in question by mentioning specifically the address and the owner. It alleges that after the building plan was sanctioned, drastic alterations and additions were made (jabardast tarike se avedh addition evam alternation kiya gya hai). The article further alleges that the ground and the first floor of the property was being used illegally for the last two decades but the MCD proved fully incapable to stop it.

20. It then proceeds to allege that it is learnt that the owner of the property, Ram Prakash is a man with high level connections (ek bahut pahunch wala vyakti hai). He has „setting‟ or is in collusion with the officers of the MCD and the electricity supply company (Uski Nigam, bijli company ke adhikario ke sath saant-gaant hai). It then alleges that due to that reason, despite repeated complaints being filed, the officials failed to take action.

21. The news item then dwells at great length on the property in question. It states that on the one hand for the last two decades, the premises continues to be misused for commercial purposes and on the other the plan of the entire premises had changed. It alleges that despite the local commissioner („LC‟) appointed by the Court for inspecting the house and issuing notice to the landlord for sealing of the house, on account of the Petitioner‟s connection and collusion with the officials, the MCD has been unable to take action against him (Makan Malik Ram Prakash ki setting ki dad dani hogi – nigam uska bal bhi baka nahi kar pai).

22. The news item then states that the ground floor is being used for the kitchen and godown of a well-known sweet shop „Bengal Sweet Centre‟ which has its business in South Extension Part-I Market and 10-12 servants reside there and frequent up to 2 am in the night, which has disturbed the peace of the neighbours. The news item then states that despite the notice being issued by the LC appointed by the Delhi High Court, no action was taken by the MCD. This portion of the news item ends by stating that the failure of the MCD to act is for the reason best known to it “but one thing is evident that if you are a person of higher links and have contacts with senior officers, then you can make encroachment as much as you like, contravention and infringement and undertake illegal construction as per your desire, no action will be taken against you” (per ek baat to saaf hai ki yadi aap rasukwale hai aur aapki upar tak acchi pahunch hai to chahe jitney avedh kabje aur atikraman kar lai ya phir apni marji sa avadh nirman kare aap par koi aanch yahi aaigi).

23. The news item then proceeds to discuss certain other properties in respect of which there were complaints regarding unauthorised construction and encroachment. The new item, under the by-line of Respondent No.1 ends by stating “Our correspondent enquired from Municipal Corporation of Delhi under Right to Information Act, that for what reason the Corporation are not taking action against such misdeeds. If any reply is received, you will be informed in the next edition of Janvikas.” (Hamare Sanvaaddata Ne Dilli Nagar Nigam Se Soochna K Adhikar K Tehat Ye Jaankari Maangi Hai Ki Akhir Wo Kaunsi Wajah Hai Jiske Karan Aisi Andhergardi Per Nigam Ki Taraf Se Koi Rok Tok Nahi Hai. Yadi Jawab Mila To Aapko Janvikas K Agley Ank Mai Aapko Avashyay Avgat Karaya Jayega) No enquiry prior to publication

24. From the evidence on record it is plain that all the applications filed by Respondent No.1 under the RTI Act were subsequent to the publication of the news item. The Appellant has, from the documents exhibited by the Respondents, culled out relevant information concerning the dates of the RTI applications and the replies as under:

   Date of Application                                             Date of Reply
   5-9-2008                                                        26-9-2008
   27-2-2008                                                       3-4-2008
   27-2-2008                                                       3-4-2008
   27-2-2008                                                       3-4-2008
   5-8-2008                                                        3-9-2008
   5-8-2008                                                        4-9-2008
   5-8-2008                                                        22-12-2008
   6-10-2009                                                       26-10-2009
   24-2-2010                                                       17-3-2010

25. It is plain, therefore, that the statement made at the foot of the news item that Respondent No.1 had already made applications under the RTI act to the MCD and was awaiting the replies is not borne out by the evidence placed on record since the news item was published with the date 3rd December 2007, whereas the earliest of the applications made by Respondent No.1 under the RTI Act is dated 27th February 2008.

26. Mr. Santosh Kumar, learned counsel for the Respondents, submitted that Respondent No.1 had generally made inquires in the area and learnt of the unauthorised construction, and on that basis, proceeded to write the news article. He urged that the information gathered from the MCD pursuant to the applications made under the RTI substantiated what Respondent No.1 had stated in the news item. He laid particular emphasis on Ex. DW4/B being the reply dated 3 rd April 2008 of the MCD Building Department which showed that the property in question was booked on 12th June 2002 on account of unauthorised construction. The replies dated 3rd September 2008 (Ex. DW4/C) and 22nd December 2008 (Ex.DW4/F) showed that the action for removal of unauthorised construction could not be taken despite several requests made by the MCD to the Police. He submitted that the only inference that could be drawn from these documents was that the Appellant was well connected with the officials of the MCD and, therefore, he managed to avoid any further action being taken by the MCD. Reliance was placed on the reply dated 17th March 2010 of the MCD (Ex.DW3/A), which showed that a report dated 16 th May 2001 of the Area Inspector of the MCD showed that the basement and the ground floor were occupied by CMCS for office use; the first floor was found rented to Shubham International and first floor rented to Mr. Bindra and second floor were found locked. According to Mr. Santosh Kumar, the above document, read together with the evidence of DW1, substantiated the statements made in the news item that the property in question was being misused for commercial purposes and yet no action was being taken against it.

27. Prof. Ram Prakash submitted that when the misuse of the property by CMCS was brought to his attention, he immediately initiated eviction proceedings. As far as the Bengali Sweets Centre was concerned the evidence of DW-1 showed that the employees were only residing in the premises. It was not being used for commercial purposes. Prof. Ram Prakash submitted that the entire news item is activated by malice inasmuch as the Respondent No. 1 was himself the tenant in one room in the property in question. Prof. Ram Prakash had himself instituted eviction proceedings against Respondent No. 1 in which he ultimately succeeded up to the Supreme Court of India. Respondent No. 1 had himself constructed a kitchen on the terrace and was later ordered to remove the construction by the Court hearing Suit No. 259 of 2009 and to pay compensation to Prof. Ram Prakash. Rs. 90,000 of the decretal amount was yet to be paid. He pointed out that the notice of unauthorised construction dated 8 th April 2002 issued by the MCD was a cyclostyled document addressed to (i) Mr. Rajan Chaudhary (ii) Prof. Ram Prakash and (iii) Mr. D.N. Shrivastava. If no action was taken by the MCD then the blame should be equally shared by those who had raised the unauthorised construction. He pointed out that what transpired between the date of that notice and the publication of the article in December 2007 was not enquired into or even disclosed by Respondent No.1. He also failed to disclose in his article that he had himself a tenant in the property in question and had received notice for unauthorised construction.

Publication not in good faith

28. The Court finds merit in the submissions of Prof. Ram Prakash. The trial Court has simply concluded that the notices for unauthorised construction and demolition action proved that the case fell within the First Exception to Section 499 IPC which states that “It is defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published”. What the trial Court appears to have missed completely is the fact that the notice of unauthorised construction was addressed to Respondent No. 1 himself and this fact was not disclosed in the news item

29. As regards the renting out of the premises for commercial purposes, the evidence of DW-1 shows that he himself did not see any part of the premises being used for the making of sweets. It appears to have been used as residence by the employees of Bengali Sweets. As far as the CMCS is concerned, the Appellant placed on record the documents concerning the eviction proceedings instituted against them by him for misuse of the premises.

30. The bonafides of the Respondent No. 1 in publishing the news article had certainly to be examined in order to determine whether the imputation was made, in terms of the Ninth Exception to Section 499 IPC “in good faith for the protection of the interests of the person making it, or of any other person, or for the public good”. The failure of Respondent No. 1 to disclose that he himself was a tenant in the premises in question, and was facing eviction proceedings, clearly pointed to the publication lacking „good faith‟. If indeed he himself was a party to the unauthorised construction and was therefore a recipient of the notice of the MCD, the failure to disclose that fact was also certainly an action not in good faith.

31. The trial Court also does not appear to have noticed the law governing the Ninth Exception Section 499 IPC. The requirement of the person making imputations having to make an enquiry prior to making them has been emphasised by the Supreme Court in Sukra Mahto vs Basdeo Kumar Mahto &. Anr AIR 1971 SC 1567. There the Court relied on its earlier decision in Harbhajan Singh vs State Of Punjab 1966 Cri LJ 82 where it held as under:

“In dealing with the Ninth Exception to Section 499 of the Indian Penal Code said that it would have to be found out whether a person acted with due care and attention. This Court said there “Simple belief or actual belief by itself is not enough. The appellant must show that the belief in his impugned statement had a rational basis and was not just a blind simple belief. That is where the element of due care and attention plays an important role”. 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 Section 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.”

32. If the news item drew the attention of the reader that there were unauthorised constructions against which no action was being taken and made no further imputations against any individual by name, it is possible that Respondents may have been able to take the benefit of the First and Ninth Exceptions to section 499 IPC. However, the news item in the present case makes an unmistakable imputation that the Appellant has connections or „setting‟ with the officers of the MCD and has exerted influence to prevent the taking of any demolition action. There is no evidence placed on record to show that prior to the publication of the news item any enquiry was made by Respondent No. 1 which would substantiate the above imputations. All his applications under the RTI Act appear to have been made subsequent to the publication. The mere fact that the police did not provide assistance for the purposes of demolition, cannot straightway lead to the inference that it was the Appellant who exerted his influence to prevent such demolition action. That would clearly be an exaggeration not borne out by any material.

33. It appears to this Court that the case would be covered by the decision of the Bombay High Court in Maroti Sadashiv And Ors. vs Godubai Narayanrao And Ors. AIR 1959 Bom 443 where the evidence showed that the statements made by the Defendants in that case were to their knowledge untrue. The Court there held that “when no serious attempt was made to prove these reckless statements, I should think that these statements were made by these defendants having been actuated by the malice which is necessary to be proved before the plaintiff can say that the defendants are not entitled to the qualified privilege”. in Radheshyam Tiwari vs Eknath Dinaji Bhiwapurkar And Anr AIR 1985 Bom 285, a plea of justification raised by the Defendant was negatived since he could not prove the imputations made in the series of articles published in a Marathi weekly.

34. The publication in question had circulation in South Delhi where the property in question was situated. It was used by a party facing eviction in a suit instituted by the Appellant to confront him in his cross-examination about his reputation. Clearly therefore it had the direct effect of adversely impacting the Appellant‟s reputation. In this context the following observations of the Supreme Court in Sahib Singh Mehra vs State Of Uttar Pradesh AIR 1965 SC 1451 are relevant:

“The Press has great power in impressing the minds of the people and it is essential that persons responsible for publishing anything in newspapers should take good care before publishing anything which tends to harm the reputation of a person. Reckless comments are to be avoided. When one is prove to have made defamatory comments with an ulterior motive and without the least justification motivated by self-interest, he deserves a deterrent sentence.”

35. In light of the law explained by the Supreme Court, the court is of the view that while it concurs with the trial Court‟s finding that the imputations in the news article “…..would definitely harm the reputation of any person, in the estimation of the right thinking members of the society”, it disagrees with the trial Court on its conclusion that the news item is covered by the First and Ninth Exceptions to Section 499 IPC. The news item while it purports to begin with speaking in general terms about the inaction of the MCD despite the court orders, turns its focus to the owner of the property in question. For the reasons discussed, the Court is of the view that the publication of the news item was not in good faith and attracted the offence under Section 500 IPC.

36. The Court accordingly sets aside the impugned judgment dated 1 st June 2012 of the learned MM and convicts Respondent Nos. 1 and 2 for the offence under Section 500 read with section 34 IPC.

Sentence

37. On the question of the sentence, it is pointed out that the Respondent No. 2 was the Editor of the newspaper in question which has since closed down its business. Respondent No. 2 is stated to be over seventy years of age. It is pleaded that he is not himself the author of the news article and therefore his liability is not in the same degree as Respondent No. 1.

38. Respondent No. 1 has, as a result of the court orders up to the Supreme Court, been evicted from the premises. Although Prof. Ram Prakash urged that the Respondent No. 1 is yet to comply with the court orders in those proceedings, that is not the concern of the Court in these proceedings.

39. Keeping in view the above factors, the Court directs that Respondent No. 1 shall be sentenced till the rising of the Court and a fine of Rs. 10,000 which will be paid by him to the Appellant within ten days failing which he will undergo a simple imprisonment of one week. Respondent No. 2 is sentenced to a fine of Rs. 10,000 which will be paid by him to the Appellant within ten days failing which he will undergo a simple imprisonment of one week.

40. The appeal is disposed of in the above terms. The trial Court record be sent back forthwith along with a certified copy of this judgment. Dasti to the parties.

S. MURALIDHAR, J.

JULY 28, 2014 akg/tp