Trichinopoly Ramaswami … vs Kripa Shankar Bhargava

Excerpt:The question of applicability of Exception 9 of Section 499, Indian Penal Code as well as other defence available to the petitioners may be raised before the Trial Court during Trial of the Complaint. But at this stage the same cannot be gone into which may prejudice the case of either side. Besides this, there is no material to consider the said argument. See Balraj Khanna and Ors. v. Moti Ram, AIR 1971 SC 1389. Therefore, submission so made by Shri Dutta in this behalf is of no avail.
    In the instant case writ of summons of Civil Suit No. 2065/86 was directed to be issued to the respondent/complainant at Chhindwara address along with copy of the plaint and, therefore, venue of trial at Chhindwara does not suffer from territorial limits of jurisdiction. Thus the submission so made by Shri Datta has no force and is hereby repelled.
Madhya Pradesh High Court
Trichinopoly Ramaswami … vs Kripa Shankar Bhargava on 24 January, 1990
Equivalent citations: 1991 (0) MPLJ 597
Author: B Lal
Bench: B Lal

ORDER B.M. Lal, J.

1. This petition Under Section 482 read with Sections 397/401, Criminal Procedure Code is directed against an order dated 11-4-1987 by which the Chief Judicial Magistrate, Chhindwara in Criminal Case No. 1034/87 while taking cognizance of an offence Under Section 500, Indian Penal Code directed issuance of process against the petitioner in accordance with provisions of Section 204, Criminal Procedure Code.

2. Brief facts leading to this petition are as under :

Industrial Consultancy Bureau Pvt. Ltd., Kalyan, Bombay (in short ICB Pvt. Ltd.) is a Company registered under the Companies Act of which the petitioners Nos. 1 to 5 are directors, engineers and responsible officers.

3. The Company is engaged in the business of engineering constructions. It entered into a contract with the complainant/respondent Kripa Shankar Bhargava to execute certain work on behalf of the I.C.B. Pvt. Ltd. near Nandan Site at Damua in district Chhindwara.

4. It appears that some dispute of accounts between the Company and its officers on one hand and the complainant Kripa Shankar Bhargava on the other hand, arose and the same led to filing civil suit by the respondent Kripa Shankar valued at Rs. 6,11,300/- in the Court of First Additional Judge to the Court of District Judge, Chhindwara, on 22-6-1986.

5. Similarly, the petitioner I.C.B. Pvt. Ltd. also filed a suit valued at Rs. 7,44,813.71 before the High Court of Judicature at Bombay in original jurisdiction on 29-7-1986 vide Suit No. 2065/86.

6. After receiving writ of summons of Suit No. 2065/86″ and copy of the plaint, according to Kripa Shankar Bhargava, petitioner No. 1 vide para 16 of the plajnt, used per se defamatory imputation i.e. ‘…wrongfully converted… misappropriated of some quantity of steel.’

7. According to Kripa Shankar this defamatory version led him to file a complaint-case on 21-10-1986 against the petitioners, for taking suitable action and punishing them Under Sections 120B, 477A and 500, Indian Penal Code.

8. Respondent/Complainant in the complaint case submitted that he is a progressive businessman of Chhindwara Town and commends respectable position in his home town and outside as well. Therefore, the imputation so made in para 16 of the plaint referred to above has lowered down his prestige in the estimation of his well-wishers.

9. On 10-11-1986, respondent examined himself and one Om Prakash Shukla to establish prima facie case against the petitioners and the learned’ Chief Judicial Magistrate, Chhindwara, by order dated 11-4-1987, having found prima facie case only punishable Under Section 500, Indian Penal Code registered the case against the petitioners and directed issuance of process in accordance with the provisions of Section 204, Criminal Procedure Code.

10. Against this order the present petitioners have come up before this Court invoking inherent and revisional powers, seeking quashing of the impugned order dated 11-4-1987 as well as the entire proceedings pending before the Chief Judicial Magistrate, Chhindwara.

11. Learned Counsel Shri S. C. Dutta appearing for the petitioners made multifold submissions one after another as under :

(a) That, so called pe rse defamatory words used in para 16 of the plaint have been used in good faith and the petitioners are! entitled to take advantage of Exception 9 of Section 499,Indian Penal Code;

(b) That, the plaint was filed by I.C.B. Pvt. Ltd. Company and the same has been verified by petitioner No. 1, Trichinopoly Ramaswami Ardhanani, therefore, the other petitioners Nos. 2 to 5 having no nexus with the alleged use of per se defamatory words in para 16, Chief Judicial Magistrate, Chhindwara exceeded in its jurisdiction in issuing process to the petitioners Nos. 2 to 5 :

(c) That, the suit was filed at Bombay High Court, therefore, Bombay High Court alone has territorial jurisdiction;

(d) That, the matter in issue (Civil Suit No. 2065/86) is sub judice in Bombay High Court and, therefore, Criminal Proceedings pending at Chhindwara be stayed till the decision of Civil Suit No. 2065/86;

(e) That, the so called per se defamatory words said to have been used in the plaint were not made public to be known to the persons in general, therefore no case Under Section 500,Indian Penal Code is made.

12. On the other hand, Shri A. G. Dhande, learned counsel appearing for the respondent/complainant supported the order impugned.

13. Before discussing the points in issue, at this stage, where only direction of issuance of process Under Section 204, Criminal Procedure Code is given, duty casts upon the Court to refrain from passing, any observation so that case of either side may not be prejudiced. Therefore, where the Magistrate acting Under Section 200, Criminal Procedure Code is satisfied himself about the allegations made in the complaint and evidence adduced in that behalf, prima facie, for proceeding against the accused persons in such cases, at this stage, no interference ordinarily is called for either Under Section 482, Criminal Procedure Code or Under Sections 397/401, Criminal Procedure Code until and unless glaring defect in the order impugned is demonstrated, i.e. –

(a) allegation and the evidence appearing on record if taken at their face value, no case is made out;

(b) where such discretion exercised by the Magistrate is capricious or arbitrary;

(c) basically the complaint suffers from some legal defect.

At this juncture, it will not be out of place to state that Under Section 202, Criminal Procedure Code for issuance of process Under Section 204, Criminal Procedure Code, detailed enquiry on merits and demerits of the case is not required, as ultimately after appearance of the accused persons, if the. Magistrate comes to conclusion that no case is made put the accused either will be discharged or acquitted, as the case may be.

14. Facts of the instant case, therefore, are to be tested with the above touch-stone, while giving any finding.

15. Shri Dutta contended that the so called per se defamatory words used in para 16 of the plaint have been used in good faith and the petitioners are entitled to take advantage of Exception 9 of the Section 499, Indian Penal Code. In this regard Shri Dutta strenuously made reference to Bhagat Singh Sethi v. Jindalal, AIR 1966 J. and K. 106, and contended that the petitioners’ case is protected under Exception 9 of Section 499, Indian Penal Code.

16. Suffice to say that arguments advanced by Shri Dutta in this regard taking resort to Exception 9 of Section 499, Indian Penal Code, stating that so called imputations have been made in good faith, has no relevancy at this stage. The question of applicability of Exception 9 of Section 499, Indian Penal Code as well as other defence available to the petitioners may be raised before the Trial Court during Trial of the Complaint. But at this stage the same cannot be gone into which may prejudice the case of either side. Besides this, there is no material to consider the said argument. See Balraj Khanna and Ors. v. Moti Ram, AIR 1971 SC 1389. Therefore, submission so made by Shri Dutta in this behalf is of no avail.

17. Shri Dutta next contended that the plaint is filed before the Bombay High Court by I.C.B. Pvt. Ltd. and the same has been verified by petitioner No. 1 Trichinopoly Ramaswami Ardhanani, therefore, other petitioners Nos. 2 to 5 having no nexus with alleged use of per se defamatory words in para 16, Chief Judicial Magistrate, Chhindwara exceeded in its jurisdiction in issuing process to the petitioners Nos. 2 to 5. Submission so made by Shri Dutta appears to have some force. Bare perusal of the plaint annexed with the petition demonstrates that the averments of the plaint in Civil Suit No. 2065/86 have been verified by petitioner No. 1 Trichinopoly Ramaswami Ardhanani and, therefore, he alone is, prima facie, liable for the offence alleged and the submission so made by Shri A. G. Dhande that the offence committed by a company, every person who at the time of offence was in charge and was responsible to the company for conduct of business of the company, and the company shall be guilty of offence and, therefore, all its office bearers shall be liable to be proceeded against, has no force and it deserves to be rejected. Therefore, submission of Shri Dutta that no case against petitioners Nos. 2 to 5, prima facie is made out is sustained.

18. Shri Dutta also contended that the suit was filed before the Bombay High Court, and therefore, Bombay High Court alone has territorial jurisdiction. In this context Shri Dutta submitted that place of trial should be the territorial jurisdiction/limits of Bombay and not Chhindwara.

19. Law is well settled on this point. In such cases, the Court within whose jurisdiction the publication is made or the Court in whose territorial jurisdiction the defamatory matter is served, circulated or distributed, either Court will have jurisdiction. See Kazi Jalil Abbasi v. State of Uttar Pradesh, 1978 Cr.L.J. NOC 104 Allahabad. In the instant case writ of summons of Civil Suit No. 2065/86 was directed to be issued to the respondent/complainant at Chhindwara address along with copy of the plaint and, therefore, venue of trial at Chhindwara does not suffer from territorial limits of jurisdiction. Thus the submission so made by Shri Datta has no force and is hereby repelled.

20. Next submission of Shri Dutta is that the matter in issue (Civil Suit) is sub judice in Bombay High Court, therefore, Criminal Proceedings pending at Chhindwara be stayed till decision of the Civil Suit No. 2065/86. This submission is devoid of substance. Under the circumstances appearing in this case, proceedings in Civil Suit has nothing to do with the Criminal Proceedings pending at Chhindwara. According to Shri Dhande, learned counsel for respondent complainant, by using per se defamatory words in para 16 of the plaint the offence is complete and even at this stage the petitioner No. 1 if withdraws those words from para 16 of the plaint by making an appropriate application Under Order 6, Rule 16, Civil Procedure Code for striking out the said words, it will be of no help to the petitioners as the offence is complete as soon as the so called per se defamatory words are used. Therefore, question of staying Criminal Proceedings at Chhindwara till decision of Civil Suit at Bombay does not arise.

21. The next point argued by Shri Dutta is that so called per se defamatory words said to have been used in the plaint were not made public to be known to persons in general and, therefore, no case Under Section 500, Indian Penal Code is made out. This argument is only tenable where the letter enclosed in an envelope and is sent to the complainant and in that context it will not be deemed to be publication. But where the plaint is filed containing so called defamatory matter according to the respondent, the same amounts to publication within the meaning of Section 499, Indian Penal CodeIn Thangavelu Chettiar v. Ponnammal, AIR 1966 Mad. 363, it has been ruled that filing a plaint or petition containing defamatory matter amounts to publication. Therefore, per se defamatory statement in pleadings, petitions, affidavits etc. of parties to judicial proceedings are offence punishable Under Section 500, Indian Penal Code unless they fall within the exceptions enumerated in Section 499, Indian Penal Code and therefore, the petitioners are at liberty to take resort to exceptions of Section 499, India Penal Code at an appropriate stage.

22. Shri Dhande, however, giving reference to Dhiro Koch and Anr. v. Govinda Dey Mishra Bura Satria, Vol. LXV Indian Cases 204, contended that defamatory statements made by the parties to suit in pleadings are not absolute privilege. I have already expressed my view that at this stage in view of Balraj Khanna’s case (supra), question of applicability of exceptions of Section 499 as well as other defence available to the petitioners may be raised before the Trial Court during Trial of the complaint. But at this stage, the same cannot be adjudicated upon. This question is left open for the parties to argue before the Trial Court.

23. During the course of argument, incidentally Shri Dutta also submitted that how the respondent was defamed by use of the words ‘…Wrongfully converted…misappropriated’… has not been prima facie established. I would again reiterate that at this stage it will not be proper to discuss the point so raised by Shri Dutta, in detail and give any finding which may tend to prejudice the case of either side. Since Shri Dutta made much emphasis on this point, it is necessary to say that defamation is injury to one’s reputation and reputation is what other persons think of Kripa Shankar Bhargava, in the instant case, and not his own opinion about himself. Therefore, respondent/complainant while examining – himself has also a examined one Om Prakash Shukla and has thus, prima facie established the necessary ingredients for taking cognizance within the meaning of Section 204, Criminal Procedure Code.

24. From the discussions aforesaid, this petition is partly allowed to the extent that proceedings initiated against petitioners Nos. 2 to 5 are hereby quashed. However, the proceedings against petitioner No. 1 Trichinopoly Ramaswami Ardhanani alone shall continue before the Chief Judicial Magistrate, Chhindwara. It is, however, made clear that this is a case of 1987. Therefore, the petitioner No. 1 and the respondent/complainant are directed to appear before the Trial Court on 28-2-1990 and the Chief Judicial Magistrate, Chhindwara .shall proceed with the case expeditiously.

P.Zainulabideen vs Kmh Sahul Hameed @ Abu Abdulah

Excerpt: though the statement made under Sec.161 CrPC  is a “privileged statement”, the “privilege” is not absolute. but only “qualified privilege”. The contrary view that it is “absolutely privileged” taken by this Court in earlier cases has been impliedly over ruled by the Supreme Court in the cases referred above. Therefore the argument of the learned counsel for the petitioner that the statement on which the complaint has been filed is “absolutely privileged statement”, is not acceptable.

P.Zainulabideen vs Kmh Sahul Hameed @ Abu Abdulah on 25 February, 2003

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 25/02/2003

CORAM THE HONOURABLE MR. JUSTICE A.K. RAJAN

Crl.O.P.No.8636 of 2003

P.Zainulabideen .. Petitioner

-Vs-

KMH Sahul Hameed @ Abu Abdulah .. Respondent !

For Petitioner .. Mr. A.Sirajudeen for M/s. Siraj & Siraj

^For Respondents .. Mr. Thiagarajan for Ms. Revathi :

O R D E R

This is a petition filed under  482 Cr.P.C. to call for the records relating to the proceedings in C.C No.138 of 2003 on the file of the Judicial Magistrate-I, Trichy, and to quash the same.

2. It is stated in the petition that the petitioner was an Organiser of Tamizhaga Muslim Munnetra Kazhagam (TMMK), a political party in Tamil Nadu. The petitioner is the author of many religious books on Islam, and he is delivering religious discourses on Islam and he is also writing in magazines. On 14.2.1998, a serial bomb blast took place in Coimbatore. The petitioner was enquired during investigation, and he made a statement to the Investigating Officer. Thereafter, the statement was furnished to him. In fact, he did not make such statement to the police. When the petitioner came to know of this, he and other Office Bearers appointed a Committee to enquire and to submit a report. The Committee also submitted a report in which it was stated that such a statement was not given by the petitioner; and that was also published in one of the magazines “Unarvu”. But, thereafter the respondent issued a notice, dt.20.7.2002, in which he has stated that the statement given by the petitioner was defamatory. The petitioner sent a reply, dt.26.8.2002, to the said notice. A private complaint was filed by the respondent before the Judicial Magistrte-I, Trichirappalli for an offence punishable under Section 500 IPC, which was taken on file as C.C. No.138 of 2002. As per the complaint, the petitioner made a statement to the police that the property of Al Nazad was registered in the name of the Treasurer and unable to bear with that treachery, the petitioner quit the organisation. Therefore, the present petition has been filed for quashing the criminal proceedings on the grounds that the complaint is barred by limitation prescribed under section 468 Cr.P.C; and that the statement made by the petitioner to the police was not defamatory; and that the alleged statement comes under exception 9 of Sec.499 IPC, and therefore no prosecution can be lodged against the petitioner for such statement.

3. Notice was served on the respondent, and he entered appearance through Counsel.

4. The learned counsel for the petitioner submitted that the statement made to a Police Officer during investigation is an “absolutely privileged statement” and no action including an action for damages lies. Therefore, the complaint, which is now pending, shall be quashed. In support of his contention, the learned counsel relied upon the judgment of this Court in RAMASWAMI MUDALIAR, In re [47 LW 136], where this Court has held that – “….the statements having been made on a privileged occasion under S.161 of crpc  , they would certainly come within the exception 9 of S.499 

The learned counsel for the petitioner also referred to a Division Bench judgment of this Court in PEDDA SANJIVI REDDY v.. KONDAGARI KONERI REDDI [(5) MLJ REPORTS 460], where the Division Bench of this Court has held that –

“that the claim for defamation was also unsustainable, because the plea of absolute privilege prevailed both with respect to the statements made to the Sub-Inspector of Police and with respect to those contained in the petition to the Magistrate.

All statements made by a potential witness as a preliminary to going into the witness-box are equally privileged with the statements made when actually in the box in Court. The statements made to the police-officer which could only be made with a view to their being repeated on oath before the Magistrate were therefore absolutely privileged.

By the common law of England absolute privilege attaches not merely to the actual proceedings of any tribunal exercising judicial function, but to all preliminary steps which are in accordance with the cognised and reasonable procedure of such a tribunal. That principle must be held to obtain in India also.”

The learned counsel for the respondent submitted that the present action has been taken only on the statement given to the police, when he was examined under  section 161 CrPC, it is an absolutely ” privileged statement” and therefore no action can lie. The learned counsel also submitted that the statement given under Sec.161 CrPC is not admissible in evidence before the Court in any other proceedings and therefore the complaint is liable to be quashed.

5. The learned counsel for the respondent submitted that the statement given to the Police Officer, though a “privileged statement”, it is not “absolutely privileged”; but, only “qualified privilege” is available to such statement. In support of his argument, the learned counsel for the respondent relied on the judgment of the Supreme Court in KHATRI v.. STATE OF BIHAR [(1981) 2 SCC 493]. In this case, the Supreme Court has held that a statement given under Sec.161 Cr.P.C is not admissible in evidence only in that particular case. But, that statement is inadmissible in any other proceedings other than inquiry or trial of that offence.

The learned counsel for the respondent also relied upon another judgment of the Supreme Court in M.N. DAMANI v.. S.K. SINHA [AIR 2001 SC 2037] where the Supreme Court has held that –

“the respondents had made imputations intending to harm or knowing or having reasons to believe that such imputation will harm reputation of the complainant”.

The learned counsel submitted that there is a prima facie case against the petitioner and therefore the Court cannot quash the proceedings. Therefore, the present petition is liable to be dismissed.

6. It is true that this Court in the two decisions, referred to by the learned counsel for the petitioner, has held that a statement made in a complaint to the Magistrate or to a Police Officer, during inquiry of a case is “privileged”, and it would fall within exception 9 of Sec.499 IPC. But the later Supreme Court decisions are contrary to that. Though the Supreme Court does not refer to these two judgments, yet these two judgments are no longer good law, in view of the later judgments of the Supreme Court contrary to the propositions laid down in those two cases by this Court.

7. The Supreme Court in the Khatri’s case, after extracting the provisions of Section 162(1) and 162(2), observed as follows: “It bars the use of any statement made before a police officer in the course of an investigation under Chapter XII, whether recorded in a police diary or otherwise, but, by the express terms of the section, this bar is applicable only where such statement is sought to be used ‘at any inquiry or trial in respect of any offence under investigation at the time when statement was made, the bar of Section 162 would not be attracted. This section has been enacted for the benefit of the accused, as pointed out by this Court in Tahsildar Singh v. State of U.P  [AIR 1959 Supreme Court 1012], it is intended “to protect the accused against the user of statements of witnesses made before the police during investigation, at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence”. This Court, in Tahsildar Singh case approved the following observations of Braund, J. in Emperor v.. Aftab Mohd. Khan [AIR 1940 All 291:

” As it seems to us it is to protect accused persons from being prejudiced by statements made to police officers who by reason of the fact that an investigation is known to be on foot at the time the statement is made, may be in a position to influence the maker of it, and, on the other hand, to protect accused persons from the prejudice at the hands of persons who in the knowledge that an investigation has already started, are prepared to tell untruths.”

and expressed its agreement with the view taken by the Division Bench of the Nagpur High Court in Baliram Tikaram Marathe v.. Emperor [AIR 1945 Nag 1] that “the object of the section is to protect the accused both against overzealous police officers and untruthful witnesses”. Protection against the use of statement made before the police during investigation is, therefore, granted to the accused by providing that such statement shall not be allowed to be used except for the limited purpose set out in the proviso to the section, at any inquiry or trial in respect of the offence which was under investigation at the time when such statement was made. But, this protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar.”

It further observed that such statements cannot be shut out from being produced, “provided they are otherwise relevant under some provisions of the  Indian Evidence Act

8. In Damani’s case, the Supreme Court, after referring to some of its earlier judgements, has held that –

“Assuming that the imputations made could be covered by exception 9 section 499 of  IPC several questions still remain to be examined – whether such imputations were made in good faith, in what circumstances, with what intention, etc. All these can be examined on the basis of evidence in the trial.”

Further –

“… it is for the respondent to plead that he was protected under Ninth Exception to Section 499 of the Penal Code. The burden, such as it is, to prove that his case would come within that exception is on him. The ingredients of the Ninth Exception are that (1) the imputation must be made in good faith, and (2) the imputation must be for the protection of the interests of the person making it or of any other person or for the public good.” Further it has held that

“….. it is the settled legal position that a Court has to read the complaint as a whole and find out whether allegations disclosed constitute an offence under Section 499.

9. From the above decisions of the Supreme Court, it is seen that though the statement made under Sec.161 CrPC  is a “privileged statement”, the “privilege” is not absolute. but only “qualified privilege”. The contrary view that it is “absolutely privileged” taken by this Court in earlier cases has been impliedly over ruled by the Supreme Court in the cases referred above. Therefore the argument of the learned counsel for the petitioner that the statement on which the complaint has been filed is “absolutely privileged statement”, is not acceptable. Therefore, the criminal case pending against the petitioner cannot be quashed.

10. In the result, the petition is dismissed. Consequently, CMP No.3000/03 is also dismissed.

Index: Yes Internet: Yes pb

exception 3 and 9 are a matter of trial

Delhi High Court

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

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

Bench: J Jain

ORDER

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

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

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

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

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

4. The newspaper further reported as below. –

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

26. Order accordingly.

Harkirat Singh Sodhi vs Ravinder Singh on 11 July, 2018

Delhi District Court

Harkirat Singh Sodhi vs Ravinder Singh on 11 July, 2018

                            IN THE COURT OF SH. SANJEEV KUMAR-II,
                      ADDITIONAL SESSIONS JUDGE-5, SOUTH-EAST DISTRICT,
                                  SAKET COURTS, NEW DELHI

                                       CRIMINAL REVISION NO. 590/2017

                      In the matter of:

                      Harkirat Singh Sodhi
                      S/o Shri M.S. Sodhi
                      R/o 210-A, Golf Links, New Delhi                                      .....Revisionist

                                                          VERSUS

                      1. Ravinder Singh
                      S/o Shri M.S. Sodhi
                      R/o M-77, Greater Kailash-I,
                      New Delhi-110048

                      2. State
                      5, Shamnath Marg, New Delhi                                          .....Respondents

                      Instituted on       : 01.12.2017
                      Reserved on         : 02.06.2018
SANJEEV               Pronounced on       : 11.07.2018
KUMAR
                                                       JUDGMENT

Digitally signed by SANJEEV KUMAR Date: 2018.07.11 16:53:12 +0530 This revision petition has been filed under Section 397 of the Code of Criminal Procedure, 1973 (in short ‘Code’) for setting aside of order dated 06.07.2017 passed by the learned Metropolitan Magistrate-10, South East District, Saket Courts, New Delhi in CC CR No.590/2017 Harkirat Singh Sodhi v. Ravinder Singh & Anr. Page No.1 of 14 No.89247 of 2016 titled as ‘Ravinder Singh v. Harkirat Singh Sodhi’, whereby revisionist was summoned for the offence punishable under Section 499/500 of the Indian Penal Code, 1860 (in short ‘IPC’).

2. Learned counsel for the revisionist has submitted that the complaint filed by the respondent was premature and not maintainable because alleged imputations were made in FIR No.149 of 2014, Police Station Tughlak Road and further the objections were filed before the Hon’ble Delhi High Court in Testamentary Case No.42 of 2014 and said two cases are still pending trial/disposal and till the time, said cases were finally adjudicated upon and decided, the respondent no.1 has no cause of action for filing of the complaint.

3. Learned counsel for the revisionist has further submitted that Explanation no.4 to Section 499 IPC makes its clear that in order to make of defamation, imputations should actually cause harm to the reputation of the person and without said actual harm being alleged in complaint or proved in pre-summoning evidence, no offence of defamation under Section 499/500 IPC is made out. Exception 8 and 9 to Section 499 IPC attracts in the present case. Respondent herein had not examined any third person to show that he had believed the statement of revisionist ; no such person mentioned in the list of witness.

CR No.590/2017 Harkirat Singh Sodhi v. Ravinder Singh & Anr. Page No.2 of 14

4. Learned counsel for the revisionist has further submitted that Statement of facts does not amount to defamation. Hon’ble Delhi High Court in CS (OS) No.82 of 2005 titled as ‘Devender Kaur & Anr. v. Surjeet Singh & Ors.’ on 08.01.2014 found the said bill to be not genuine and found further various suspicious circumstances surrounding the said will.

5. Learned counsel for the revisionist has further submitted that learned Trial Court was having no jurisdiction to entertain and try the complaint as no cause of action has been arisen within the jurisdiction of learned Trial Court if letter/circular dated 04.01.2015 is discarded. The jurisdiction on the basis of alleged imputations made in FIR No.149 of 2014, Police Station Tughlak Road and the objections filed by the revisionist herein in Testamentary Case No.42 of 2014 before Hon’ble Delhi High Court does not fall in the learned Trial Court. He has placed reliance upon the decisions, namely, Jeffrey J. Diermeier & Anr. v. State of West Bengal & Anr., MANU/SC/0390/2010; Bikramjit Ahluwalia & Ors. v. Simran Ahluwalia & Ors., MANU/DE/1389/2015; Arundhati Sapru v. Yash Mehra, MANU/DE/4096/2013; Aarti Jain v. Uma Shanker Vyas & Ors., MANU/DE/0113/2013 ; Ajay Shah v. Multi Commodity Exchange of India & Ors., MANU/MH/2004/2009 and S.P. Satsangi v. Krishna Kumar Satsangi, LAWS (DLH)-2007-4-11.

CR No.590/2017 Harkirat Singh Sodhi v. Ravinder Singh & Anr. Page No.3 of 14

6. On the other hand, learned counsel for respondent no.1 has opposed the revision petition stating that the letter/circular dated 04.01.2015 was issued/circulated in Greater Kailash-I, New Delhi and therefore, learned Trial Court is having the jurisdiction to entertain and try the case. The circular is within the public domen. In suit filed before the Hon’ble Delhi High Court and FIR, the complainant/respondent no.1 is not party and therefore, there is no question of trial of conduct of complainant. The defence of good faith as mentioned in exceptions eight and nine to Section 499 IPC cannot be taken into consideration at the time of summoning of the accused and same can be proved during the trial by the accused. The Judgment of Hon’ble Delhi High Court does not say that the respondent no. 1 had forged the will. Said Judgment only says about suspicious circumstances and in said case, respondent no. 1 was not a party. Only mensrea/intention is material for defamation and there is no need of lowering down the reputation. At the stage of summoning of the accused, only prima facie case is to be same. In Civil Law circulation is required but in Criminal Law no such circulation is needed for the defamation. He has placed reliance upon decisions, namely, Jeffrey J. Diermeier v. State of Bengal, MANU/SC/0390/2010, Aarti Jain v. Uma Shanka Vyas, MANU/DE/0113/2013; Bikramlit Ahluwalia v. Simran Ahluwalia, MANU/DE.1389/2015; Ajay Shah v. Multi Commodities Exchange of India; MANU/MH/2004/2009 and Arundhati Sapru v. Yash Mehra, MANU/DE/4096/2013.

CR No.590/2017 Harkirat Singh Sodhi v. Ravinder Singh & Anr. Page No.4 of 14

7. The respondent no.1-complainant has filed complaint under Section 200 of the Code for the offence under Section 499/500 IPC against the revisionist-accused. The revisionist has challenged in this revision the impugned order whereby revisionist-accused was summoned for the offence under Section 499/500 IPC finding prima facie case against him. In pre-summoning evidence, respondent no.1- complainant has examined himself as CW-1 and one Rupak Vaish as CW-2.

8. The learned Trial Court has passed impugned order at the stage of issuance of summons to the revisionist. Now, question is what are required to be considered at the stage of taking cognizance and issuance of summon. In Bhushan Kumar & Anr. v. State (NCT of Delhi) & Anr. (Criminal Appeal no. 612 of 2012, decided on 04.04.2012), Hon’ble Supreme Court held that at the stage of taking cognizance, the magistrate has to be satisfied whether there is sufficient ground of proceeding and not whether there is sufficient ground for conviction and whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry.

9. Hon’ble three-Judge Bench of the Supreme Court in Sonu Gupta v. Deepak Gupta & Ors. [Criminal Appeal Nos. 285-287 of 2015 decided on 11.02.2015] held that at the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or material or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage, whether the materials will lead to conviction or not. It is also well settled that cognizance is taken of the offence and not the offender. Hence, at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of charge against that particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial.

10. Hon’ble Supreme Court in Amarullah and Anr. v. State of Bihar and Ors. [Criminal Appeal No. 299 of 2016] held on 12.04.2016 that it is well settled that at the stage of taking cognizance, the court should not get into the merits of the case made out by the police, in the chargesheet filed by them, with a view to calculate the success rate of prosecution in that particular case. At this stage, the court’s duty is limited to the extent of finding out whether from the material placed before it, offence alleged therein against the accused is made out or not with a view to proceed further with the case.

11. In Rakhi Mishra v. State of Bihar & Ors., Criminal Appeal No.1499 of 2017 decided on 24.08.2017, Hon’ble Supreme Court has reiterated the judgment of Sonu Gupta’s case regarding parameters which are required to be seen at the stage of taking cognizance.

12. In Fiona Shrikhande v. State of Maharashtra & Anr., Criminal Appeal No. 1231 Of 2013 decided on 22.08.2013, Hon’ble Supreme Court has held that:

“11. We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards issuance of process in criminal cases is well settled. At the complaint stage, the CR No.590/2017 Harkirat Singh Sodhi v. Ravinder Singh & Anr. Page No.7 of 14 Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint. In Nagawwa v. Veeranna Shivalingappa Konjalgi and Others (1976) 3 SCC 736, this Court held that once the Magistrate has exercised his discretion in forming an opinion that there is ground for proceeding, it is not for the Higher Courts to substitute its own discretion for that of the Magistrate. The Magistrate has to decide the question purely from the point of view of the complaint, without at all adverting to any defence that the accused may have.”

 

13. In Rajendra Rajoriya v. Jagat Narain Thapak & Anr., Criminal Appeal No.312 of 2018 decided on 23.02.2018, Hon’ble Supreme Court has held that at the stage of taking cognizance, the Magistrate has to satisfy himself about the satisfactory grounds to proceed with the complainant and at this stage, the consideration should not be whether there is a sufficient ground for conviction.

14. It is clear from the above mentioned judgments that at the stage of taking cognizance and issuance of summon, the Magistrate has to be satisfied whether there is sufficient ground of proceeding and not whether there is sufficient ground for conviction, and whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the inquiry. Hence, at the stage of taking cognizance and issuance of summons, the learned Magistrate is required to apply his mind to find out whether prima facie case has been made out for taking the cognizance and summoning the accused.

15. In respect of territorial jurisdiction of learned Trial Court, it is sufficient to say that complainant (respondent no. 1 herein) has stated in the complainant and his pre-summoning evidence regarding circulation a defamatory letter on 04.01.2015 by the accused (revisionist herein) in Greater Kailash, RWA Society. At the stage of summoning of the accused, only prima facie view is to be taken.

 

16. It is mentioned in the grounds of the revision that case of the revisionist falls in the eighth and ninth exceptions to Section 499 IPC. Learned counsel for the revisionist has argued that his case/defence also falls in explanation 4 to Section 499 of the IPC. It is well settled that the question whether case of revisionist/accused is covered by any of the explanation/exceptions to Section 499 of the IPC, is required to be determined at the trial. In Jeffrey J. Diermeier’s case (supra), it has been observed by the Hon’ble Supreme Court that:

“32. It is trite that where to the charge of defamation under Section 500 IPC, the accused invokes the aid of Tenth Exception to Section 499 IPC, “good faith” and “public good” have both to be established by him. The mere plea that the accused believed that what he had stated was in “good faith” is not sufficient to accept his defence and he must justify the same by adducing evidence.”

17. In Aarti Jain’s case (supra), Hon’ble Delhi High Court has held that the question whether case of respondents/accused is covered by any of the explanation/exceptions to Section 499of the IPC, is required to be determined at the trial.

18. In Ajay Shah’s case (supra), it has been observed by the Hon’ble High Court of Mumbai that:

“12. Section 105 of the Evidence Act says that when a person is accused of an offence, the burden of proving the existence of circumstances proving that the case falls within any of the general exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the same Code, or any other law defining the offence is upon him and the Court shall presume the absence of such circumstances. Thus, at the state of the issuance of the process the Magistrate if satisfied that the allegations in the complaint, taken at their face value, do construe an offence and there is a prima facie material in support of them can issue process and is not required to consider whether the case falls in any of the exceptions. That stage would arise after the plea is recorded and at the trial. The burden of proving that the case falls under any of the exceptions is on the persons claiming the exception.”

 

19. Learned counsel for the revisionist has submitted that respondent no. 1 herein had not examined any third person to show that he had believed the statement of revisionist ; no such person mentioned in the list of witness. The respondent no. 1-complainant has also examined one Rupak Vaish (CW-2) in his pre-summoning evidence who has deposed that recently when they got the circular around first week of January 2015, they were shocked to go through the contents of the circular as it contains very defamatory things about that family. It is also deposed by CW-2 that after receiving the circular they all resident gathered together and took up that matter and discussed that circular was wrong and the contents were totally defamatory and the circular has caused harm to the family of Ravinder Singh. Further, in complaint filed by the respondent no. 1 against the revisionist before learned trial court, it is averred in para no. 11 that these false and defamatory statements by the accused against the complainant are being made with the clear intention and knowledge to harm the reputation of complainant and lower his image in the eyes of public. In Arundhati Sapru’s case (supra), it has been observed by the Hon’ble High Court of Delhi that:

“10. Thus, it is clear that the mens rea to cause harm is the most essential sine qua non for an offence under section 499 IPC. To constitute “defamation” under Section 499 of the IPC, there must be an imputation and such imputation must have been made with intention of harming or knowing or having reason to believe that it will harm the reputation of the person about whom it is made. In essence, the offence of defamation is the harm caused to the reputation of a person. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant, irrespective of whether the complainant actually suffered directly or indirectly from the imputation alleged. An offence punishable under section 500IPC requires blameworthy mind and is not a statutory offence requiring no mens rea.”

20. Learned counsel for the revisionist has taken the ground in the revision that the statement of fact does not amount to defamation. In Judgment passed by Hon’ble Delhi High Court in CS (OS) 82 of 2015 dated 08.01.2014, it is not mentioned that the respondent no.1 (herein) has forged the will in question. In the said case, respondent no.1 herein was not a party. I am not agree with the contention of the learned counsel for revisionist that complaint is premature. There are specific defamatory allegations against the respondent no.1 as mentioned in the complaint and pre-summoning evidence. The said allegations leveled by the revisionist against the respondent no.1 herein are not subject matter of trial in other petition. At the stage of summoning of the accused, only prima facie case is to be seen by learned Trial Court. Keeping in view the complaint, pre-summoning evidence and documents, it can be said that there are prima facie case against the revisionist for summoning him for the offence punishable under Section 500 IPC and therefore, learned Trial Court has rightly summoned the revisionist for the said offence. Hence, revision is dismissed. The observations mentioned in this judgment shall not have bearing on merits of the case.

Announced in the open Court
on 11.07.2018                      (SANJEEV KUMAR-II)
                                  Additional Sessions Judge-05
                           South East District, Saket Courts, New Delhi




CR No.590/2017      Harkirat Singh Sodhi v. Ravinder Singh & Anr.   Page No.14 of 14

 

Prof. Ram Prakash vs D N Srivastava & Anr.

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