Excerpt:, I am of the view that in the present case as well, it would be appropriate to have a full-fledged trial so as to gather the intention of the accused, whether it was there to defame the opposite party no. 2 in order to lower his image in the estimation of the public and with that motive the news item was printed or whether it was simply a statement of fact. This Court cannot prejudge this issue without the full trial.
Allahabad High Court
Vishveshwar Kumar vs State Of U.P. And Another on 2 September, 2019
Bench: Dinesh Kumar Singh-I
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Judgment Reserved on : 08.08.2019
Judgment Delivered on : 02.09.2019
Court No. - 65
Case :- APPLICATION U/S 482 No. - 38158 of 2012
Applicant :- Vishveshwar Kumar
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Imran Ullah
Counsel for Opposite Party :- Govt.Advocate,N.L.Pandey,Pankaj Srivastava
Hon'ble Dinesh Kumar Singh-I,J.
Heard learned counsel for the applicant Shri Imran Ullah and in opposition, learned counsel for opposite party no. 2 Shri N.L. Pandey, learned A.G.A. for the State Shri G.P. Singh and perused the record.
2. This application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Code’) has been moved on behalf of the applicant with a prayer to quash the entire proceedings in Complaint Case No. 583 of 2012 (Natthu Lal Yadav v. Pradhan Sampadak and others), under Sections 500, 501 of the Indian Penal Code, 1860 (hereinafter referred to as ‘I.P.C.’), Police Station – Kotwali, District – Varanasi, pending in the court of A.C.J.M.-II, Varanasi.
3. In order to appreciate the arguments advanced by learned counsel for the applicant and the contentions made in the affidavit filed on his behalf, it would be pertinent to refer here in brief, the complainant’s case as narrated in the complaint and the evidence which has been adduced in support thereof. According to the complaint, one Sessions Trial No. 642 of 1999 was initiated against the opposite party no. 2/complainant under Sections 302, 120B of I.P.C., Police Station – Chowk, District – Varanasi pertaining to Crime No. 10 of 1999, in which he was acquitted vide judgment and order dated 05.08.2002 by the Additional District Judge, Fast Track Court No. 5. The Advisory Committee of the National Security Agency (N.S.A.) had communicated by FAX to the opposite party no. 2 that his detention was found to be against law and a direction was issued for his immediate release. Earlier, the District Magistrate had cancelled the license of S.B.B.L. gun of the opposite party no. 2, but subsequently, a report was sent by Inspector, Kotwali pertaining to Crime No. 10 of 1999 in respect to the cancellation of gun license of the opposite party no. 2 and after consideration of the same, the District Magistrate vide order dated 25.08.1999, had cancelled his gun license, against which an appeal was preferred by him before the Commissioner, Varanasi under Section 19 of the Arms Act, 1959 and vide order dated 26.02.2001, the order of District Magistrate was confirmed, against which the opposite party no. 2 had preferred a writ petition No. 20298 of 2010 before the High Court, in which the orders of the District Magistrate and the Commissioner were set aside and the said gun was released in favour of opposite party no. 2 and his armed license gun was renewed up to 2009 and was valid till then. The accused-applicant along with two other co-accused were fully aware of these facts, but in order to assail his dignity, at the instance of co-accused (Sanjay Singh, Inspector, Police Station – Kotwali, District – Varanasi), on 13.06.2007, untrue facts were published in the newspapers, which were derogatory to the opposite party no. 2 and considerably dented his esteem in the eyes of public and people started looking upon him in adverse light and this also led to the breakage of betrothal (‘sagaai’) of the complainant’s son and people started avoiding to meet him so much so that it became very difficult for him to move around and live peacefully a dignified life. This caused immense physical, mental and financial loss to him.
4. The said complaint was registered as Complaint Case No. 2025 of 2007 against the applicant and two other co-accused and on 25.06.2007, the statement of the opposite party no. 2 was recorded under Section 200 of the Code, in which he narrated the same version which has been stated above in the complaint, further clarifying that all the three accused, which included the applicant, in conspiracy with each other, published news item in ‘Hindustan’ and ‘Amar Ujala’ daily newspapers on 13.06.2007. The local editors of the said two daily newspapers were made accused along with the S.I. Sanjay Singh who were stated to have deliberately published the said news item, which led to the defamation of the opposite party no. 2 and therefore, it was mentioned that a sum of Rs. 10 lacs should be directed to be paid by the accused to compensate the opposite party no. 2.
5. In support of the complaint, one Manoj Kumar Srivastava was examined by the opposite party no. 2 as P.W.1 under Section 202 of the Code, who has stated that he knew the opposite party no. 2 and had read news item in ‘Amar Ujala’, Varanasi edition dated 13.06.2007, carrying news item pertaining to the opposite party no. 2, after reading which, he received a big jolt that the opposite party no. 2 was a man with criminal antecedents, having case under Section 302 of I.P.C. and he was a history-sheeter. His other friends were having the same kind feeling towards him after having read the news and started avoiding to meet him. The other witness, namely, Kashi Seth was also examined by the opposite party no. 2 as P.W.2. He also has stated that he read the Varanasi Edition of the ‘Amar Ujala’ daily newspaper dated 13.06.2007 and came to know about the opposite party no. 2 being a history-sheeter and this led him not to have confidence in the opposite party no. 2 as his reputation had gone down badly. The marriage of opposite party no. 2’s son which was likely to take place also had broken because of the said news item having been widely read by the general public.
6. Based on the said evidence, the trial court passed the order dated 10.01.2008, wherein it was recorded that the news item which was published by the accused-applicant was nothing but publishing correct news and therefore, the same would not fall in the category of any offence. The accused being an editor of the ‘Amar Ujala’ daily newspaper, had published the said item only thinking that the said news item was correct and it would not appear to him that if the same was published by him, it would bring down the esteem of the opposite party no. 2 in the eyes of public. As regards the third accused Sanjay Singh, Inspector, Kotwali, the action taken by him fell within the domain of his official duty in respect of cancellation of arm’s license of opposite party no. 2. Merely on account of opposite party no. 2 being acquitted, it could not be said that accused no. 3 had proceeded to take action for cancellation of arms license in order to damage his reputation. Accordingly, the trial court dismissed the complaint under Section 203 of the Code. Against the said order, a revision (Criminal Revision No. 09 of 2008) was preferred in which the Sessions Judge, Varanasi vide judgment and order dated 29.02.2008, set aside the order of the learned Magistrate mentioned above and remanded the matter back to the trial court to decide the matter afresh after hearing the counsel for the complainant and considering the evidence on record. While passing the said order, the learned revisional court observed that although the complainant had been acquitted in the cases pending against him, getting benefit of doubt, but in the publication dated 13.06.2007, it was written ^^fgLVªh’khVj Hkh ysdj ?kwe jgsa ykblsalh vlygk^^. The name of the opposite party no. 2 was also mentioned therein, therefore, it was not appropriate for the newspaper to publish such news without proper enquiry. The opposite party no. 2 had been acquitted by the Additional District Judge on 05.08.2002 and by the order of High Court in Writ Petition No. 20298 of 2001, the petition of opposite party no. 2 was allowed and his arm’s license was restored in the year 2003. Thus, after 2003 till 2007, there was nothing against the opposite party no. 2 which could be the basis for publishing such news item that he was a history-sheeter detenue of “RASUKA” (Rashtriya Suraksha Kanoon). Further, it is mentioned in the said judgment that the publication of the fact mentioned in the complaint could not be said to be bona fide and the conclusion drawn by the learned trial court that true facts were published could not be said to be in accordance with evidence on record and accordingly, the revision was allowed.
7. Thereafter, the trial court passed the impugned order dated 09.07.2009, in which it has been recorded that the revisional court, while allowing the revision on 29.02.2008, has directed it to pass fresh order on the basis of evidence, after hearing the parties again. The revisional court in its order while drawing the conclusion, has mentioned that the publication made in the newspapers did not appear to have been published bona fidely and hence, according to the conclusion drawn by the revisional court, the accused deserves to be summoned to face trial under Section 500 of I.P.C. and accordingly, summons were issued against the applicant along with other two co-accused.
8. The main thrust of the argument of the learned counsel for the applicant was that the impugned order was totally illegal because the same was not passed on the appreciation of the evidence on record by the learned Magistrate, rather it has been passed in accordance with the wishes/opinion formed by the revisional court, which is wrong. The learned Magistrate was directed to consider the evidence afresh and after hearing the parties, he should have passed fresh order, expressing his own opinion as to whether prima facie case under the relevant sections were made out or not and it should not have passed the order merely because the revisional court had expressed opinion that the said offence was found to be made out.
9. Attention of this Court was also drawn to the order of the District Magistrate, Varanasi dated 15.10.2007 at page no. 85 of the paper book, in which as many as four criminal cases are shown to have been recorded against opposite party no. 2 and it was also mentioned therein that on the basis of police report, showing those cases to have been initiated against opposite party no. 2, was held to be the basis for cancelling the arm’s license of the opposite party no. 2. He was issued notice to show cause on 19.07.2007. In response to the said notice, the opposite party no. 2 had filed objection on 17.08.2007, stating therein that the Crime No. 10 of 1999 was registered against him because a widow lady had received a bullet injury and concerning that, proceedings were also initiated against him under N.S.A. His arm’s license was also cancelled vide order dated 25.08.1999, against which he had preferred an appeal before the Commissioner, Varanasi Division, which too was dismissed and thereafter, a writ petition No. 20298 of 2001 was preferred by the opposite party no. 2 and in the said petition, vide order dated 14.05.2003, the orders of District Magistrate and the Commissioner were set aside and the arm’s license of the opposite party no. 2 was directed to be restored and on that basis, the show cause notice was taken back with immediate effect and the gun was directed to be restored to opposite party no. 2. It was argued after having shown the said order, that the said order was passed on 15.10.2007, while the publication of news item was made on 13.06.2007, which was stated to be derogatory and defamatory against the opposite party no. 2. Therefore, it is apparent that the accused-applicant did not have any knowledge that any such order was passed by the District Magistrate, restoring the arm’s license to the opposite party no. 2 after having found that the criminal case shown pending against him had resulted in acquittal and the High Court had passed a direction in his favour to restore the license and the weapon as well.
10. The sole basis of making publication of the said news item was that there was report of the co-accused Sanjay Singh to the effect that the above-mentioned four cases were pending against him and hence, he had made the said publication simply on the basis of the police report. There was no intention while publishing the said news item to defame the opposite party no. 2, rather it was simply a news item, which was statement of fact, basis of which was police report, which later on came to be set aside by the order of District Magistrate dated 15.10.2007, hence, he cannot be held liable for having caused offence under Sections 500 and 501 of I.P.C.
11. On the other hand, learned counsel for the opposite party no. 2 vehemently opposed the quashing of the proceedings against the applicant because according to him, it was very much in the knowledge of the accused-applicant that those criminal cases, which are cited above, had already been closed and the accused-applicant had been acquitted and the license of the gun was also restored to the opposite party no. 2 and yet, knowing full well, the said news item was published in the said papers with a view to maligning the image of the opposite party no. 2, hence, offence under Sections 500 and 501 of I.P.C. were made out on the basis of evidence which has been recorded by the trial court.
12. Reliance has been placed by learned counsel for opposite party no. 2 on the judgment of Hon’ble Apex Court in the case of K. Sitaram and Another v. CFL Capital Financial Service Limited and Another1. In the above-mentioned case, it has been held by the Hon’ble Apex Court that when a person files a complaint and supports it on oath, rendering himself liable to prosecution and embezzlement, if it is false, he is entitled to be believed unless there is some apparent reason for disbelieving him; and he is entitled to have the person, against whom he complains, brought before the court and tried. The only condition requisite for the issue of process is that the complainant’s deposition must show sufficient ground for proceeding.
13. From the side of the applicant, in paragraph no. 32 of the affidavit, it is mentioned that a perusal of the order dated 15.10.2007 passed by the District Magistrate would itself demonstrate that the D.M. was not in the knowledge of earlier proceedings and as such if at all he had given any statement against opposite party no. 2, that was on the basis of criminal proceedings and relying on the police report. However, the reporting of the publishing was done only on the basis of the statement given by the then-District Magistrate and after doing preliminary enquiry by the reporter concerned, whereby he was shown the papers regarding criminal prosecution as well as the reports given by the police station concerned to the District Magistrate and as such, it cannot be said that the said reporting was done with laxity and without proper investigation, with an intention to defame any person. The petitioner/applicant, at the time of the said reporting, was Resident Editor of Hindustan Times Media Ltd. The said reporting was not done by him. There was no intention nor any personal enmity with the complainant to publish false report against him, rather it was a plain and simple reporting of the fact as narrated by the then District Magistrate, Varanasi and there was no ulterior motive against the complainant to defame him or tarnish his image. The trial court has ignored the settled principle of law that in order to constitute abetment, the abettor must be shown to have intention as well knowledge to have aided in the commission of the offence.
14. In the instant case, the applicant cannot be said to be an abettor as there was no intention or knowledge to commit the offence. There was no prima facie case made out against the applicant. There is not an iota of single specific allegation against the applicant in relation to the publication of the said news item and yet he has been summoned. Further, it was mentioned that under Section 7 of the Press and Regulation of Books Act, 1867, it is only the office of the “editor” as defined under Section 1(1) of the Act who can be held responsible for the publication and no other person. The said Act has been reproduced in the affidavit. It was necessary that the editor should have been directly responsible for publishing any news item.
15. Reliance has also been placed upon the judgment of Hon’ble Apex Court in the case of S.K. Alagh v. State of Uttar Pradesh2, in which it is held that there is no concept of vicarious liability under criminal law. The trial court has miserably failed to appreciate the evidence on record and has taken cognizance erroneously, which needs to be set aside.
16. From the side of opposite party no. 2, counter affidavit has been filed, in which all the submissions made in the affidavit have been rebutted and it has been asserted that there was sufficient evidence on record for the trial court to summon the accused under the aforesaid sections.
17. In the rejoinder affidavit filed from the side of the applicant, the same facts have been reiterated, which have been mentioned in the affidavit and nothing new has been stated.
18. The facts in the case are very much clear, as has been mentioned above. It is a fact that the opposite party no. 2 was an accused under Section 302 of I.P.C., but he had been acquitted for the same by the trial court way back in the year 2002 and the gun license was issued in favour of opposite party no. 2, which was cancelled by the District Magistrate and thereafter, the said decision was upheld by the Commissioner. Both the orders were set aside by the High Court in Writ Petition No. 20298 of 2001 vide order dated 14.05.2003 and the said license was restored to the opposite party no. 2, while the news item in question has been published in 2007. It is apparent that the said news item appears to have been printed in newspapers without taking proper care and making proper enquiry and the possibility cannot be ruled out that the same could have been published in order to bring down the image of the opposite party no. 2, as has been stated in the complaint and supported by the two witnesses named above. It has been argued by the learned counsel for the applicant that the applicant had no intention to defame opposite party no. 2 and that he had simply printed the news item on the basis of his information which he had received from the District Magistrate and also on the basis of police report, is something which needs to be decided by the trial court after having appreciated the evidence on record of both the sides and after having appreciated in the light of cross-examination made as to whether the evidence to be adduced by the parties proves the offence as has been committed by the accused-applicant or not. In case the trial court comes to the conclusion that there was no sufficient evidence on record to hold the accused guilty of having published the said news item deliberately in order to lower his image in the estimation of public, then the accused may get acquittal from the trial court, but at this stage, prima facie there is evidence against the applicant which discloses commission of offence under Sections 500 and 501 of I.P.C.
19. Sections 500 and 501 of I.P.C. are reproduced herein below :-
500. Punishment for defamation.–Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
501. Printing or engraving matter known to be defamatory.–Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
20. It is apparent from the above definition of offence under Section 501 of I.P.C. that if someone prints or engraves any matter knowing that such matter is defamatory of a person, he shall be punished with two years’ simple imprisonment or with fine or with both.
21. In the present case, there is certainly a news item printed, which is found by the trial court to be defamatory against the opposite party no. 2, as two witnesses have stated that when they read the said piece of evidence, they started viewing the opposite party no. 2 in poor light, considering that he was a criminal and tried to stay away from him and the marriage of his son had also broken on that account. Therefore, the fact as to whether the said news item was printed in the said newspapers knowingly that the same would tarnish the image of the opposite party no. 2 or not, is a matter of evidence and a full-fledged trial is required to be held for the same. Therefore, at the initial stage, the proceedings against the applicant cannot be nibbed in the bud and reliance may be placed by me upon the judgment of Hon’ble Apex Court in the case of Md. Abdullah Khan v. Prakash K.3, wherein it was held that it must be established that matter printed and offered for sale is defamatory within the meaning of expression under Section of 499 of I.P.C. If so proved, the next step would be to examine the question whether the accused-respondent committed the acts which constitute the offence of which he is charged, with the requisite intention or knowledge, etc. to make his act culpable. The answer to question depends upon facts. If the respondent is the person who either made or published the defamatory imputation, he would be liable for punishment under Section 500 of I.P.C. and if he is the person who “printed” the matter, then within the meaning of expression under Section 501 of I.P.C. Whether there is sufficient evidence to establish the guilt of the respondent for the said offence, is a matter that can be examined only after recording the evidence at the time of the trial. In this case, the Hon’ble Apex Court had held that the High Court did not choose to give any reason, whatsoever, for quashing the complaint, except concluding that the prosecution of accused would lead to miscarriage of justice, which was held to be wrong and it was considered proper that the trial ought to have been held.
23. Adopting the above principle of law in the present case, I am of the view that in the present case as well, it would be appropriate to have a full-fledged trial so as to gather the intention of the accused, whether it was there to defame the opposite party no. 2 in order to lower his image in the estimation of the public and with that motive the news item was printed or whether it was simply a statement of fact. This Court cannot prejudge this issue without the full trial.
23. In view of the aforesaid, the prayer for quashing the entire proceedings in the aforesaid case is refused and resultantly, the instantly application stands rejected.
Order Date :- September 02, 2019 I.Batabyal [Dinesh Kumar Singh-I,J.]
Defamation 