Delhi District Court
In Re vs M/S Bennette on 31 August, 2017
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
CS NO. 950/2017(Old No. 25/2017)
In re :
Shri Ashok Kumar Jain
S/o Late Shri Chander Mhan Jain
R/o B-2/4, Safdarjung Enclave
New Dlhi ........ Plaintiff
Versus
1. M/s Bennette, Coleman & Co. Ltd.
7, Bahadur Shah Zafar Marg,
Times of India Building,
New Delhi 110002
(Service to be effected through
its Director/Managing Director
2. Shri Ramesh Chander
(Since deceased now to be represented by LRs)
2(a) Smt. Chander Kumar Jain
W/o Late Sh. Ramesh Chander
2(b) Sh. Akhilesh Jain
2(c) Sh. Shailesh Jain
Both S/o Late Sh. Ramesh Chander
All R/o C-48, Gulmohar Park, New Delhi-110 049
3. Shri Raminder Singh
Resident Editor
Times of India
7, Bahadur Shah Zafar Marg,
New Delhi 110002
4. Sh. Rajnish Sharma
Staff Reporter
Times of India
7, Bahadur Shah Zafar Marg,
New Delhi 110002 .......... Defendants
Date of institution of present suit : 28.02.1998
Date of receiving in this court : 04.01.2017
Date of hearing arguments : 19.07.2017
Date of Judgment : 31.08.2017
CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 1 of 26
SUIT FOR RECOVERY OF RS. 1 Crore (Rupees One Crore only) AS DAMAGES
FOR DEFAMATION
JUDGMENT
This judgment shall dispose of the suit filed by the plaintiff for recovery of Rupees 1 crore as damages for defamation.
Plaintiff's Case
1. Briefly stated case of the plaintiff is that plaintiff is a graduate by qualification, businessman, Income Tax assessee and he remained throughout a progressive man. It has been stated that plaintiff it at the moment of filing of the suit was president of South District Congress Committee and he entered politics in the year 1979 when he was only 24 years old. The plaintiff was a member of Delhi Cantonment Board during the period when the Congress party was in power and he won the elections on the ticket of the Indian National Congress. Plaintiff defeated Shri Ram Nighai a sitting member from the said constituency who was continuously winning the election for the past several years from Delhi Cantonment on various party tickets as well as as an independent candidate. At the relevant time he was a candidate of the ruling Janata Party.
2. Soon after the plaintiff was elected as member of Delhi Cantonment Board. In the year 1979 he was elected as the vice president of Delhi Cantonment Board and he held various political posts since then as he had been the general secretary of Delhi Pradesh Congress committee. In the year 1983 he contested the election for the Metropolitan Council from Anand Niketan South Delhi parliamentary constituency and won the election against sitting member Shri Bodh Raj of the BJP. The plaintiff all along enjoyed good reputation and had a clean record and was not involved in any kind of controversy what to talk of his involvement in any criminal case. The plaintiff had been loved by all the residents CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 2 of 26 of constituency. Plaintiff had also contested the election on the ticket of Indian National Congress for the Legislative Assembly of Delhi held in the year 1993 but he lost the said election due to over all wave against the Congress Party and that too with a very narrow margin.
3. Plaintiff again contested the election for the Municipal Corporation of Delhi from ward number 13 Hauz Khas constituency and while he was campaigning for the said election he was given overwhelming support by the public at large and it was declared by almost every person that winning of the election by the plaintiff was a foregone conclusion and was written on the wall. Plaintiff was given overwhelming welcome and showered blessings from all the corners.
4. After it became known fact that plaintiff had created an edge over his opposite candidates at that stage of the election which was to be held on 23.02.1997, the defendants published a news items in the daily newspaper known as 'Times of India' on 21.02.1997 at Page 3 column number one under the heading "233 aspirants from the criminal record" by a staff reporter. Para 4 of the news items read as under:-
"On them are the Congress, BJP, JD candidates from Hauz Khas. Virender Singh Janata Dal candidate is reportedly involved in cases of murder dacoity and robbery. The Congress candidate Ashok Jain is involved in a case of murder, attempt to murder and criminal intimidation".
5. Above stated report was published mentioning "by staff reporter"
but the name of such staff reporter was not disclosed to the plaintiff by the defendants despite demanding the same. Since the newspaper is published by the CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 3 of 26 defendant no.1 who is the owner thereof and defendant no.2 is printer and publisher of the said newspaper and defendant no.3 is the resident editor of the newspaper as such all of them are directly connected with the above said defamatory news published. They are jointly and severally liable for the payment of the suit amount.
6. The news item as a stated above was defamatory in nature besides being totally false and had been published with the sole intention to defame plaintiff. Defendants had chosen the time for publishing this said false news knowing full well that on that day itself 21.02.1997 the entire campaign was to come to an end in the evening and as such the plaintiff had no chance even to contradict the same by any means. From above it is very clear that the above false and defamatory news was published in order to tarnish the image of the plaintiff and to minimise his chance of winning the election. The publication of said news has not only shocked the plaintiff but all his supporters as the allegations were false, scandalous, defamatory and were made with the sole motive to send wrong signals to the voters of the said area with the result that on 21.02.1997 itself the person who were fans of the plaintiff started questioning him. The plaintiff was totally taken aback by these questions by his own supporters, friends, workers and was placed in a nonplus situation. In fact the entire hard work done by the plaintiff for the past 20 days was wasted. Plaintiff was subjected to various questions by the public and the public who were throughout seeing the plaintiff with love and affection started looking him in a tainted manner and with mocking eyes.
7. The plaintiff being a public figure faced great difficulty in clearing the doubts of the public and he was totally ruined on account of the above CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 4 of 26 publication of the said false news at such a junction when the news could hardly be refuted. The plaintiff immediately in the same evening sent notice dated 21.02.1997 to the defendants by post as well as left the notice in their office with the request and calling upon the defendants to furnish the unqualified apology and to publish the correct facts. Despite having received the said notice the defendants neither disclosed the name of the staff reporter nor published any contradiction of the said news nor replied the notice. Plaintiff lost the election of the Municipal Corporation of Delhi from ward number 13 with a meager margin of 2600 votes and the plaintiff was sure that had the defendants not published the above said defamatory news certainly he would have won the election as the margin was very narrow and that margin has occurred only on account of the above defamatory news.
8. Plaintiff thereafter waited for four months and again served the notice dated 5.07.1997 which was sent to the defendants by registered AD cover and certificate of posting which notice stood delivered in the so-called course of Postal Services and none of the notices was received back but to no avail. Defendants sent the reply dated 19.08.1997 through Shri Gopal Chandra Advocate maintaining their allegation against the plaintiff. Defendants stated that five cases were pending against the plaintiff but they had not given the details of such cases as it is false to the knowledge of the defendants. The defendants also stated that the plaintiff had been acquitted in three cases but again no details was given.
9. Plaintiff was subjected to defamation by the defendants by the defamatory publication in the newspaper at close of the election propaganda and the perusal of the news item would show that the allegation against the plaintiff CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 5 of 26 are of serious nature, as it has been stated that plaintiff was involved in a case of murder, attempt to murder and criminal intimidation. Plaintiff was never involved in any kind of such cases and the defendants have made false allegation against the plaintiff and also reiterated these allegation while sending the reply to the notice. It shows that defendant have deliberately and malafidely lavelled allegation against the plaintiff with the sole intention to defame him and with the sole object and knowledge that the said defamation shall be harmful to the plaintiff for his reputation and it would directly and adversely affect election success rate of the plaintiff in the said election of the M.C.D.
10. Defendants despite noticed failed to disclose the name and other particulars of the staff reporter which clearly indicates that the aforesaid defamatory publication against the plaintiff was not only with the knowledge and consent of the present defendants but it was on their instructions. Defendants who have stated that they had received such information from Delhi Police failed to refer to any such details and as such all the defendants are jointly and severally liable for the above said act.
11. No amount of money is sufficient to compensate the loss, mental pain and suffering which the plaintiff suffered and the plaintiff is demanding only a sum of Rs. 1 crore that too, a token amount, towards the damages. It has been stated that entire political career of the plaintiff had been ruined by the defendants by making the above said false and defamatory publication. Plaintiff reserved right to proceed separately against the defendant under section 500 of the IPC. Hence plaintiff has filed the present suit for recovery of Rs. 1 Crore as damages.
Defendant's Case CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 6 of 26
12. Upon service of summons of the suit defendants filed the written statement there by raising preliminary objection as to the maintainability of the suit against the defendants as there was no defamation whatsoever committed by them as alleged by the plaintiff in his suit. The defendant No.1 is the well established and reputed newspaper organization. It publishes number of newspapers such as Times of India, Economic Times, Navbharat Times in Hindi and Sandhya Times and various other magazines such as Femina, Film-fare etc. It has been stated that defendant No.1 is committed to bring about the news and other items or articles only with a view to uphold the fundamental rights enshrined in Article 19 (1) (a) of the Constitution of India and also in the interest of the general public. It has been further stated that it has a duty to bring to the general public the news affecting the general public welfare as well as their interest so as to uphold the democratic norms as set out under the Constitution of India. There can be no iota of doubt that it has been carrying out its duty to the general public all along by the publishing various news involving various political parties and also the government in power. Only because of the very strong press such as the defendant No.1 in this country, the democracy has not faded away even though it was subjected to various miseries after independence.
13. It has been contended that under the defamation law defendant No.1 on its own cannot be made a party and on this point alone the suit is liable to be dismissed. The defendant no.1 is the Printer and Publisher of 'The Times of India' and also other newspaper published by defendant no.1. It must be made clear that defendant no.2 has no role whatsoever either in selecting or publishing any news item or article for publication. There is no person called Ramesh Chander as printer and publisher of Times of India. There is an independent editorial section headed by chief editor and he is assisted by able journalist for reporting the news CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 7 of 26 to the general public. The imputation whatsoever alleged in the suit therefore, at any rate, cannot be attributed to the defendant no.2 and for the reasons as set up above the suit is liable to be dismissed as not maintainable as against defendant no. 2. It must be noticed that plaintiff himself has not made any personal allegation either against defendant no.2 or against different no.3. Thus, the allegations are therefore totally false unfounded and therefore denied by the defendants. The suit is liable to be dismissed on this ground alone and also as the news items published by defendant no.1 did not disclose any such allegation that would have resulted in loss of reputation of the plantiff as claimed by him.
14. The news item published on 21.02.1997 not only gives the information of alleged involvement in the criminal cases of the plaintiff but also of various other persons who had filed nomination for contesting the election in the municipal corporation polls. The news item on an a reading clearly establishes that not only the Congress party candidates but also other political parties such as BJP, Shiv Sena, Janata Dal and other parties were also figured in the news item. The news item was published on the basis of proper source of information made available to the defendants by the police authorities. The news item specifically placed on record that the list was compiled by the district police officials and was released to the press for publication. Plaintiff also cannot have a case against the newspaper that he alone had been singled out. The newspaper got the information from Delhi Police Special branch and intelligence wing of the police before the municipal polls. The defendants understand that the said branch prepared the list of candidates against whom there existed criminal record/cases. The suit is therefore not maintainable in view thereof. The defendant company would be facing number of cases for every such reporting if it is dragged to the court for defamation charges. The defendants strongly deny that any loss of reputation CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 8 of 26 whatsoever has occasioned to the plaintiff as a result of publication of the above said news item.
15. It has been further submitted that defendants have no enmity or whatsoever against the plaintiff. The defendants only published the news item after applying the due and reasonable care in selecting the news item before publication. The defendants only acted fairly and with a bonafide believe that the source of information provided by the police authority is correct and authentic and that in its view it had a duty to bring the said information to the general public. On merits plaintiff has denied to have caused any loss of reputation to the defendant however defendants did not deny publication of news item as pointed out by the plaintiff but has completely stayed away from the factual facts pleaded by the plaintiff about his name, reputation and fame. Defendant has denied to have any liability towards plaintiff. Hence, defendants have called for dismissal of the suit.
Replication
16. Plaintiff thereafter file replication thereby denying the contents of the written statement and reiterating the contents of the plant.
Issues
17. From the pleadings of the parties following issues were framed by the Hon'ble High Court on 21.09.2004
1. Whether the suit as filed is maintainable against the defendants no.1, 2 and 3? OPP
2. Whether the publication of the news item dated 21.02.1997 can be defamatory with sole intention to defame the plaintiff and to tarnish his image and to minimise his chance of election as claimed by the CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 9 of 26 plaintiff when the newspaper give the names of various other persons alleged to be having criminal records? OPP
3. Whether the publication of news item was within the rights of newspaper under article 19(1)(a) of the Constitution of India particularly it dealt with various other persons? OPP
4. Whether the defendants no.1, 2 and 3 can be made liable for the publication of the news item? OPP
5. Whether the plaintiff is entitled to any reliefs against the defendants no. 1, 2 and 3? OPP
6. Relief
18. Plaintiff examined himself and filed his affidavit Ex-PW1/A and relied upon following documents Income Tax acknowledgement Ex-PW1/12, Ex- PW1/2 and Ex-PW1/3, income tax assessment order for the year 1993-94 Ex PW1/4, certificate issued by the cantonment executive officer Shri M. L.Range to the effect that plaintiff remained vice president Ex PW1/5, identity card of National Sports Club of India Ex-PW1/6, the impugned publication ExPW1/7, legal notice Ex-PW1/8, reply sent by defendants Ex-PW1/9. He was corss examined by counsel for defendants.
19. Plaintiff deposed that he was the member of Noida Golf Course, Telephone Advisory Committee and Anand Niketan Club. He also admitted that he was the president of South District Congress Committee and member of Municipal Corporation of Delhi from Hauz Khas constituency in the year 2002. He was unable to tell the business turnover in the year 1997 but stated that Income Tax records were already on record. He deposed that he owns Apno Ghar Amusement Park and Airport Motel. He deposed that after the election whatever CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 10 of 26 growth of the business which he had set up in the year 1993 became totally dump and there was no increment in the business. He admitted that he had not suffered loss in business since 1997 onwards but he suffered politically. He had won the election of Delhi Cantonment Board in the year 1979 and was also elected as Vice Chairman of Delhi Cantonment Board in the year 1983 and contested the election for Metropolitan Council Delhi and won the same. He admitted that anybody can become member of NSCI and NGC upon application. He deposed that in NSCI he had only one friend MLA Subhash Chopra and he was his political colleague. He was member of Anand Niketan Club for the last 15 to 20 years but he was not member of Anand Niketan Resident Welfare Association, he remained there for one year. He remained President of South District Congress Committee for one year, there after he had contested the Municipal Corporation election in Delhi in the year 2002. He volunteered that he had applied for ticket for Delhi State Assembly Election but did not get the ticket. He won the Municipal Councilor election by a margin of 2600 in the year 2002. He admitted that his political campaigning was completed on 21.02.1997. He depose that 80% of the voters in Hauz Khas constituency read English newspaper "Times of India". The figure of 80% was given by him as his guess work. He deny the suggestion that not more than 15% of the voters of Hauz Khas constituency read English newspaper 'Times of India". He deposed that none of the person in writing has approached him asking about the article published in the newspaper but orally number of people approached him with the newspaper clipping containing such article. He did not receive any notice in writing from his Congress party after the publication of news article dated 21.02.1997. He volunteered he was verbally asked by party member to explain. He admitted that he was given Congress party ticket for the Delhi municipal election held in the year 2002 and that he won the said election. He denied the suggestion that he had lost the Delhi Municipal election held in the CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 11 of 26 year 1997 from Hauz Khas constituency not because of news article dated 21.02.1997 Ex-P1 but because of the popularity of the winning candidate of the BJP Choudhary Saroop Singh.
20. Plaintiff examined another witness Virender Rajput as PW2. He deposed that he was General Secretary of block Congress Committee Malviya Nagar District in the year 1997 when election for the constituency took place on 23.02.1997. Plaintiff was known to him as he had earlier participated in other elections and became member of Delhi Cantonment Board. He deposed that plaintiff was very polite, law abiding, soft-spoken, pleasant in nature and is very popular among political worker, his colleagues and resident of constituency and command great respect among all. Nothing adverse to his character even been observed or heard by him or other resident of the constituency. He further deposed that he was getting overwhelming support from the voters in the election which was to be held on 23.02.1997 when suddenly on 21.02.1997 a defamatory Publication appeared in the newspaper 'Times of India' at page 3 column 1 where falsely mentioned that there are criminal cases of murder, attempt to murder and criminal intimidation pending against him. Following this news item entire scene of campaign changed and people who were earlier welcoming plaintiff and workers with garland flowers sweet started closing the door and flatly started rebuking. All supporters of plaintiff and plaintiff were put in very embarrassing situation. Voters started openly refusing to vote for plaintiff. He further depose that on the instruction of plaintiff legal notice was issued by his Counsel Shri S. C. Singhal. He further deposed that defamatory publication was published deliberately and malafidely in order to give clean image to BJP candidate Swaroop Singh and to tarnish the image of plaintiff and in all eventuality would have won the election but lost due to adverse publicity on account of above CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 12 of 26 defamatory publication. He further depose that on account of above defamatory publication political career of plaintiff came to stand still and plaintiff and his supporters have to do a lot of labour to convince the higher leader of Congress about innocence of plaintiff. No amount of money can compensate the loss of plaintiff on account of above defamatory publication.
21. In cross examination he deposed that he was aware of the pendency of the present suit since its inception. Plaintiff had not asked him to depose in the present matter rather he volunteered himself to depose in the present case. He was known to plaintiff since 1982 he personally knew the plaintiff even since 1979 when he was elected member of Delhi Cantonment Board. He volunteered that he came close to plaintiff in 1982. He admitted that plaintiff had contested election of Delhi Legislative Assembly in year 1983 and he had actively supported him and had also campaigned for him. Plaintiff had lost by margin of 1500/16000 votes and the winner was BJP nominee. He deposed that article was published on 21.02.1997 and he had read it himself. He deposed that member of public never give any letter of support during the campaigning. He volunteered that during the course of campaigning people had been openly expressing their support for plaintiff and had been saying that they would vote for him to ensure his victory. He further deposed that even after publication of the article in question neither any show cause notice was issued by Congress party nor any enquiry was made by it. In 2002 plaintiff had won the election which he had contested for MCD seat. In 2002 MCD election Congress party won the majority of seats. In fact Congress had more than two third majority. After 2002 plaintiff did not contest any election because he was not given ticket by congress party and it was not his personal decision. He admitted that plaintiff is a successful businessman and plaintiff was running his business under the name and style of CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 13 of 26 Apno Ghar and owns hotel. After publication of the article in question he did not make any enquiries from Delhi Police. He further deposed that after reading the article in question he did not think that plaintiff was involved in any criminal activity. He volunteered plaintiff was not involved in any kind of criminal activity and the said article was wrong. After publication of the article in question nobody wrote any letter to the plaintiff in respect thereof. Plaintiff had informed him that he had received telephonic calls after publication of the said articles.
22. Defendants did not lead any evidence in the matter.
Defamation
23. Before adverting to issueswise finding it would be better if definition of 'defamation' is gone through that is to say what is meant by 'defamation'.
Salmond and Heuston on The Law of Torts; 20th edition define a defamatory statement as under:-
" A defamatory statement is one which has a tendency to injure the reputation of person to whom it refers which tends that is to say to lower him in the estimation of right thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or deesteemed. The statement is judged by the standard of an ordinary right thinking member of society ......"
24. Halsbury Law of England 4th edition vol. 28 defines defamatory statement as under:-
"10. Defamatory statement- A defamatory statement is a statement which tends to lower a persons in the estimation of right thinking members of society generally or to cause him to be shunned or avoided or CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 14 of 26 to expose him to hatred, contempt, ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business"
25. 'Defamation' according to Chamber 20th century dictionary means 'to take away or destroy the good fame or reputation; to speak evil of; to charge falsely or to asperse.'
26. According to Salmond :- " the wrong of defamation consist in the publication of false and defamatory statement concerning another person without lawful justification The wrong has always been regarded as one in which the court should have the advantage of the personal presence of the parties if justice is to be done. Hence, not only does an action of defamation not survive for or against the estate of a deceased person but a statement about a diseased person is not actionable at the suit of his relative."
27. Winfield and Jolowicz on torts defines defamation thus:
"defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally or which tends to make them shun or avoid that person".
28. In the book The Law of Defamation the term 'defamation' have been defined as below:-
"Defamation may be broadly defined as a false statement of which the tendency is to disparage the good name and reputation of another person".
In Parmiter v. Copeland defamation has been described as:(ER p.342) CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 15 of 26 "...... A publication without justification or lawful excuse which is calculated to injure the reputation of another by exposing him to hatred contempt or ridicule..."
Above noted definitions describes the ingredients and expense and clearly show its characteristics.
Reputation
29. What constitute a reputation. Although character and reputation are often used synonymously but these terms are distinguishable. Character is what a man is and reputation is what he is supposed to be and what people say he is. Character depends on attributes possessed and reputation on attribute which other believe one to posses. The former signifies reality and the letter nearly what is accepted to be reality at present. Every man has a right to have his reputation preserved inviolate. Reputation is an element of personal security and is protected by the constitution equally with the right to enjoyment of life liberty and property.
30. In Charleston v. News Group Newspaper Limited 1995 vol. 2 All England Laws Report page 313; it was held "whether an article is defamatory or not has to be considered as a whole since an isolated passage may be defamatory but its effect can be negated if the article is read as a whole. The single, natural and ordinary meaning of the words of the alleged defamatory publication has to be understood in the context of the whole article and the meaning which such words taken as a whole convey to the mind of an ordinary reasonably fair minded reader".
Findings
31. After going through the pleadings evidence and material on record CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 16 of 26 and after appreciating the respective arguments of the parties issueswise finding are as under:-
ISSUE No. 1:- Whether the suit as filed is maintainable against the defendants 1, 2 and 3? OPP ISSUE No. 4:- Whether the defendants 1, 2 and 3 can be made liable for the publication of the news item? OPP
32. Both issues are taken up together as they are interconnected. Onus to prove both the issue is upon the plaintiff. In the plaint it was pleaded that the defamatory article was published in the newspaper 'The Times of India' on 21.02.1997. It was further pleaded that defendant No. 1 is the owner of the newspaper and defendant no. 2 is the printer and publisher of the said news paper. Defendant No.3 is the resident editor of the newspaper. Defendant no.4 is the staff reporter and as such all of them are directly connected with the above said defamatory news published. They are jointly and severally liable for the payment of the suit amount. In examination in chief plaintiff did not aver a single word against defendant no.2, 3 and 4 and about their role and responsibility.
33. Defendant number 4 did not file written statement. Defendant No 1, 2 and 3 in the written statement has pleaded that under the defamation law defendant No 1 on its own cannot be made a party. Defendant no.2 is printer and publisher of 'The Times of India' and also other newspapers published by defendant no.1. Defendant No.2 has no role whatsoever in either selecting a publishing any news item or article for publication. There is no person called Ramesh Chander as printer and publisher of Times of India. There is an independent editorial section headed by chief editor and he is assisted by able journalist for reporting the news to the general public. The imputation whatsoever CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 17 of 26 alleged in the suit, therefore at any rate, cannot be attributed to the defendant no.2 and for the reasons as set out above the suit is liable to be dismissed as against defendant No. 2. It was further pleaded that plaintiff himself has not made any personal allegation either against defendant No 2 or against defendant no 3.
34. Defendants did not lead any evidence and therefore they fail to prove their respective roles as alleged by the defendants in their written statement.
35. Taking note of the evidence led by plaintiff wherein plaintff did not utter a word against defendant no.2 and 3 and also the fact that defendants did not lead any evidence, it stands proved that suit is not maintainable against defendant no.2 and 3 at least. Defendants have not cited any law under which defendant no.1 cannot be held liable for 'defamation' as alleged in the written statement.
Hence, issue number 1 and 4 is accordingly decided partly in favour of plaintiff and partly in favour of defendants.
ISSUE No. 2:- Whether the publication of the news item dated 21.02.1997 can be defamatory with the sole intention to defame the plaintiff and to tarnish his image and to minimise his chance of election as claimed by the plaintiff when the newspaper gave the names of various other person a list to be having criminal records? OPP
36. Onus to prove this issue in the upon the plaintiff. There is no dispute that there was an article published in the newspaper 'Times of India' on 21.02.1997. Plaintiff has quoted the defamatory part of the article which reads as under :-
" On them, are the Congress, BJP, JD candidates from hauz khas Virender Singh (Janata Dal) candidate is reportedly involved in cases of Murder, dacoity and robbery. The Congress candidate Ashok Jain is involved in a case of Murder, attempt to murder and CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 18 of 26 criminal intimidation".
37. In Charleston(supra) it was held that whether an article is defamatory or not has to be considered as a whole since an isolated passage maybe defamatory but its effect can be negated if the article is read as a whole. The single, natural and ordinary meaning of the words of the alleged defamatory publication has to be understood in the context of the whole article and the meaning which such words taken as a whole convey to the mind of an ordinary reasonably fair minded reader. Keeping this in mind it is necessary to quote the whole article to appreciate whether the article is defamatory or not. Article read as under:-
" 233 Aspirants have criminal records By a staff reporter New Delhi: As many as 233 candidates against whom criminal cases have been registered will be contesting Sundays Municipal polls. The list includes candidates of political parties.
Of 44 names available 7 belongs to Congress, two to the BJP, four to the Janata Dal, three each to the Samajwadi Party and Shiv sena and one each to the CPM and Panthers party. The rest are Independents.
These are alleged involvement based on police records. The progress of these cases in court or whether any have resulted in conviction or acquittals could not be ascertained. The list have been compiled by district police officials.
On them are the Congress, BJP and Janata Dal candidates from Hauz Khas. Virender Singh, the general candidate is reportedly involved in cases of murder, dacoity and robbery. The Congress candidate, Ashok Jain, is involved in a case of murder, attempt to murder and criminal intimidation. The BJP man, Mahesh Chandra Sharma has a case of criminal intimidation against him.
Mahender Yadav the congress candidate from Badli is a allegedly involved in a sale of notified land and CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 19 of 26 cases of criminal intimidation. Shrist Kumar Chaudhary, an independent candidate from the same ward is involved in cases of criminal intimidation. The Janata Dal candidate from Mangolpuri is also involved in cases of criminal intimidation.
The Shiv Sena candidate from Bawana Sanjay Kumar arrested on charges of murder during his election campaign is a Leslie involvement cases of murder and robbery. Jasbir Singh Solanki an independent candidate from Matiyala is involved in a case of murder attempt to murder and criminal intimidation. The congress candidate from Trilokpuri Ashok Kumar is involved in 1984 riot cases.
Fakirchand an independent candidate from Nand Nagri is involved in cases of murder and attempt to murder. The Janata Dal candidate from Karawal Nagar Kadam Singh has cases of attempt to murder and criminal intimidation. The congress candidate from this ward Jagdish Pradhan has a case of attempted murder against him.
The congress candidate from Hastsal Satpal Sethi is reportedly involved in a case of power theft.
A case of criminal intimidation is lodged against the J&K Panthers Party candidate from Chandni Chowk Manoj Kumar and the congress candidate from Ballimaran Syed Hussain has a case of attempt to murder against him.
Among the independents against whom cases ranging from murder to criminal intimidation are lodged are: Rajkumar Bhatti Ambedkar Nagar, Jai Chand Sharma West Gorakh Park, Iftar Ali West Gorakh Park, Haseen Ahmed West Gorakh Park, Ajit Pal Rohtash Nagar, Fakir Chand Nand Nagri, Swapan Banerjee Trilokpuri, Ganga Prasad Sharma Bazar Sitaram, Shivraj Jindal Adarsh Nagar, Dharmendra Adarsh Nagar, Sudhir Kumar Bhalswa, Naresh Kumar Tyagi Narela, Sukhbir Singh Rana Bharat Nagar, Ramesh Kumar South Patel Nagar, Ravinder Kumar East Patel Nagar and Dharam Veer Mustafabad.
The Shiv Sena candidate from west Gorakh Park Hardesh Agarwal is involved in a case of murder. So is CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 20 of 26 Ram Prakash the Samajwadi Party candidate from Nand Nagri. A case of criminal intimidation has been registered against Shahid Iqbal the SP candidate from Daryaganj, while case of attempt to murder has been registered against Mohammad Hamid the party's candidate from Bazar Sitaram."
38. Perusal of the above article reveals that it is not the plaintiff alone against whom article was directed to. All the three candidates of major party of the constituency from which plaintiff was contesting was reportedly having criminal records. Apart from this the said articles not only writes about the candidate from Hauz Khas but have given reporting about all the candidates from Delhi having criminal records. Thus, it cannot be said that the article has targeted only the plaintiff with sole intention to defame the plaintiff and to tarnish his image and to minimise his chance of election as claimed by the plaintiff when the newspaper give the names of various other persons allegedly having criminal records. Plaintiff has not specifically pointed out that defendants were entertaining any grudge against the plaintiff or were supporting any particular candidate contesting election against the plaintiff.
39. In the issue under consideration element of intention has been pressed into service therefore plaintiff was required to prove not only that the article was defamatory per se but also that article was published with the sole intention to defame plaintiff, tarnish his image and mininmise his chance of wining election. Thus. for issue under consideration it will not be sufficient for plaintiff if he only proves that the article was defamatory. He has also to prove that it was so published by the defendants with intention to defame, to tarnish his image and to minimise his chance of election.
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40. Perusal of the whole article does not show that it was intended to tarnish the image of only plaintiff or to minimise his chance of election, even if article is considered defamatory against plaintiff. Perusal of the said article also do not indicate that it was supporting any particular candidate contesting against the plaintiff. In fact all the contesting candidates of major political parties of Hauz Khas constituency were reportedly having criminal records. Plaintiff can not complaint that he was denied level playing field on account of publication. Publication does not show any attempt from the reporter to turn the wave of public support from one candidate to other candidate. Thus, plaintiff has failed to prove that the publication was done by the defendants with sole intention to defame, to tarnish his image and to minimise his chance of election. Hence, issue no. 2 is decided against the plaintiff and in favour of defendants.
ISSUE No. 3:- Whether the publication of news item was within the rights of the newspaper under article 19(1)(a) of the Constitution of India particularly it dealt with the various other persons? OPP
41. Onus to prove this issue has been cast upon the plaintiff which clearly shows that it was a typographical mistake because it is not the case of the plaintiff that the impugned article is protected under article 19 of the Constitution of India rather such is the case of the defendant. Therefore, onus to prove this issue is upon the defendants. Defendants have not led any evidence in the matter, nonetheless this issue can be taken up as it involves more or less legal question. Hon'ble Supreme Court in People's Union for Civil liberties & Ors. v. Union of India & Anr.; AIR 2003 SC 2363 has held that voters have a fundamental right to know the criminal antecedents of a candidate. The article published by the defendant as quoted above is nothing but dissemination of information relating to criminal antecedents of the candidates contesting the CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 22 of 26 election. It has already been noted herein before that the above said article has not single out only the plaintiff as it has discussed the criminal antecedents of as many as 233 candidates. There is no doubt that such information helps voters to make a prudent choice between the different candidates but such information is needed to be based on some authentic source. In this case defendants have alleged to have drawn the information from the records of police but defendants have not led any evidence to this effect. If such information was true or could be proved to be true then certainly impugned article was within the rights of the newspaper under article 19(1)(a) of the Constitution of India.
Hence, issue no. 3 is decided accordingly.
ISSUE No 5:- Whether the plaintiff is entitled to any reliefs against defendants No.1, 2 and 3? OPP
42. Onus to prove this issue is upon the plaintiff. Publication of impugned article is not in dispute. The question next is whether the impugned article is per se defamatory. It is well settled that all the statement which is untrue may not be defamatory. It has got to be shown that such an untrue statement defame the person in respect of whom statement was made. It has got to be proved that such untrue statement lowered his estimation in the eyes of persons of ordinary prudence known to plaintiff or right thinking person of the society in general. Concerned person's own estimation about the statement made against him is of no value. The effect of a untrue statement on a concerned person depends upon his own personal nature. A very sensitive person may be affected deeply by an untrue statement and a reasonable or uncaring person may not be so deeply affected by such untrue statement. Therefore the person against whom statement has been made considered the statement per se defamatory is of no value unless he proves from independent person of ordinary prudence that CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 23 of 26 because of the untrue statement made against the person he and other persons held concerned person in low esteem or that believing upon the statement they distance themselves from the concerned person against whom statement was made.
43. In order to establish 'defamation' plaintiff has to prove following ingredients:- 1. publication, 2. falsity, 3. unprivileged and 4. injurious.
44. There is no dispute that impugned article was published, hence, first ingredient is met. The impugned statement about the plaintiff is false stands established as defendants did not lead any evidence to prove that the fact stated in the publication was correct nor did defendants proved the source i.e. police record from which it drew the report. Plaintiff has not brought the affidavit on record which he has filed before the election commission but in any case plaintiff cannot be expected to lead negative evidence, hence, it stands proved that the impugned material was false as defendant failed to prove the truth of impugned statement. So the second ingredient is also fulfilled. There is no defence of the defendants that the statement made in the publication is the privileged statement therefore the third ingredient also stand fulfilled.
45. Now the last ingredient is that is if the statement was injurious, since the whole point of defamation law is to take care of injuries to reputation i.e. those suing for defamation must show how the reputation were hurt by the false statement. For example the person lost work; was shunned by neighbours friends or family members or was harassed by the press.
46. Loss in Municipal election has been made sole ground by the CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 24 of 26 plaintiff for proving injury to reputation by the impugned article. Iit has been contended by plaintiff that because of this impugned article he lost the election as his estimation in the eyes of voters got lowered. It has been contended that there was overall wave in his favour in the said election but publication of impugned article on the last day of campaigning caused irreparable damage to the chance of the plaintiff to win the election and voters shut the door to the plaintiff. Plaintiffs have not examined any of the voters of his constituency to prove that voters changed their mind to not vote for him nor has he examined any of the senior leaders of his political parties to prove that because of his impugned article he was not allowed to move ahead in his political career.
47. The other witness examined by the plaintiff i.e. PW2 went to the extent of deposing that following news item entire scene of campaigning changed and people who were earlier welcoming plaintiff and workers with garland flowers and sweets started closing their door and openly started rebuking plaintiff. All supporters of plaintiff and plaintiff were put in a very embarrassing situation. The voters started openly refusing to vote for plaintiff. Plaintiff himself in witness box has not deposed on the above line following the publication of impugned article but the witness who is somehow interested in protecting the interest of the plaintiff has gone over board to show that article has caused havoc on the reputation of the plaintiff. This itself shows that witness of the plaintiff is exaggerating the effect of article. Moreover he himself did not believe that plaintiff was involved in any criminal activity that is to say that in his eyes esteem of plaintiff did not go down as he did not believe the article. So, in the eyes of the PW2 plaintiff remained as respectful as he was prior to publication of the article. Plaintiff was required to examine right thinking person of the society in whose eyes his esteemed was lowered or should have proved the incident which could CS NO. 950/2017 Ashok Kumar Jain vs. M/s Bennette, Coleman & Co. Ltd. Page no. 25 of 26 show that he was shunned or exposed to hatred or ridicule etc.
48. It is not the case of the plaintiff that following the impugned article he was not allowed to enjoy the membership of various Club of which he alleges to be a member or that he was issued show cause notice or that he was removed from the primary membership of the political party or of all the association to which he was member. He had also not brought on record any survey report, newspaper clipping or other material showing that he had edge over other candidates in the municipal election in which he was participating in the year 1997. Thus, plaintiff has failed to prove injury to his reputation. The fourth ingredient to prove the defamation has not been proved by the plaintiff and therefore plaintiff is not entitled for the relief claimed in the plaint.
Issue No. 5 is decided against plaintiff and in favour of defendants.
Relief In view of findings recorded on all issues, suit of the plaintiff is hereby dismissed.
Parties to bear their own cost.
Decree sheet be drawn accordingly.
File be consigned to Record Room after necessary compliance.
(Harish Kumar)
Announced in the open court ADJ-13(Central)/THC
(Judgment contains 26 pages) Delhi/31.08.2017
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